When Copyright Registration Fits Into the Photographer’s Workflow

Photographs are one of the most commonly infringed types of work in the digital age, and yet, photographers often do not register their photographs with the U.S. Copyright Office. The reasons for this tend to be misunderstanding the law or perceived hassle to submit the registration, resulting in copyright registration becoming a good intention that gets shoved aside – until a valuable photo is used without a photographer’s permission.

When should photographers register their photos?

You should register your photos before they leave your studio. No matter what you may hear or read about the registration requirement in the U.S., the fact is that you must have a valid registration certificate in order to file a claim in court. If the registration predates the infringement—the law calls this “timely”—you are eligible for attorney fees and statutory damages, which is almost always critical as a practical matter in a claim.

This is because it is rare that provable actual damages for an infringement meets or exceeds the expense of a lawsuit. And while most copyright claims do settle out of court, this is generally because the infringer sees that the rightsholder has a path to winning a significant judgement by virtue of timely registration, and recognizes that settlement is less expensive.

When considering the cost of registering against the potential damage award of just one photo, the investment makes sense. And some creators who do client work simply add the small cost of registration to the budget. The following guidance is based on general practice. Your needs may vary.

What are the basics of photo copyright registration?

• Photographs may be registered with the U.S. Copyright Office in groups of up to 750 images per application.
• Groups of photos must be either all published or all unpublished (no mixing).
• Best practice is to register your work before publication as it is best to register before it leaves your control.
• The effective date of registration is the day the Copyright Office receives the application (including the application form, copies of the photos, and the fee). This is one reason RightsClick wants to make it easy to fit copyright registration into your post-production workflow.

Which version(s) of my photographs should I register?

In most cases, you will want to register the first edited versions of a group of photos—e.g., the version with general corrections to achieve a natural look for each image. Once these versions are registered, you are fully protected in your right to make or authorize derivative works. So, if someone makes an unauthorized silkscreen version of your photograph, your ability to take legal action is based on the registration in the original photograph.

Whether you wish to separately register your own derivative versions is a judgment call depending on how much new expression is added to the original as well as a cost consideration. For instance, making technical adjustments to an image to achieve the best look for a magazine print versus digital projection might not amount to substantial new creative expression. Alternatively, if you significantly alter a photo to sell as a limited edition fine-artwork, the investment in registering that one derivative may be worthwhile.

What if my photos are published before I register?

The law provides you a grace period of three months after publication to submit your photos for registration. This is especially helpful if you’re working in a field where publication happens very soon after the shoot. If you submit your application within three months of the first time your photos were published you get full protection even if someone infringed them in between the time they were published and when you submitted your application. So, some photographers accumulate all their images and send in full groups of registrations every quarter.

How often should photographers register their photos?

If you just completed selecting 200 photos that you will deliver to a client, submitting those images for registration before you let them leave the studio may be more important than waiting for a full group of 750 images. This can be an important step because, for instance, a client who uses photos beyond the scope of the agreement could be committing copyright infringement. Others prefer to wait until they accumulate 750 images to maximize efficiency.

Some photographers simply prefer to keep registration applications organized by project. But keep in mind that the Copyright Office is agnostic regarding subject matter. You may submit any unregistered group of images, up to 750 per application, that have no creative or subject matter relationship of any kind. So you may organize your submissions by project, or when you approach or reach the 750 photograph limit per application. You should submit your work at least quarterly in order to keep ahead of the three-month rule.

How do I prioritize which images to submit for copyright registration?

Selecting which photos to register is usually based upon the projected value and intent to allow use of the photographs in the market. Odds are, you know when you captured the shots that are going to be the winners in any genre, and those should probably be at the top of your registration list—even if they are unrelated by subject matter. Alternatively, if a photo has already been used without permission, it almost certainly will be again. And if you could not take legal action the first time, registration ensures that you have the option next time.

This consideration often applies to photographers with back catalogs they have been meaning to register. For instance, if you have some great celebrity images you would like to curate and sell or publish in a new book, now is the time to register those images if you haven’t already!

What does publication actually mean?

The meaning of publication confuses a lot of people—including copyright experts! Essentially, making copies available to the public, even for free, is a good way to determine that photos have been published, while simply displaying an image is not considered publication. What this means about posting on social media? Excellent question without any great answers. That’s one reason we advocate registration before anything could possibly have been published, including on social media platforms.

For more technical explanations about publication, file types, file sizes, and how RightsClick enables you to submit a group of photos in a matter of minutes, please see our Registering Groups of Photos page.