Dear Rich: I've been registering my photos with the Electronic Copyright Office (eCO) for a couple years now but I'm confused about the process, and the advice I find online is conflicting. I post a new photo on my website three times a week, and my site lists the two galleries that represent me for print sales. Thus I understand these photos are published for copyright registration purposes. And I understand that I will be protected if I register within 90 days of publication, so my plan is to gather all photos I've posted from the previous 90 days and register them as a group. Will that work? Will I be completely protected? One web site says I have to use Form VA and Form CON, but will I be covered if I'm using the Electronic Copyright Office? If I registered images incorrectly in the past as unpublished, can I simply register them again as published? The first question is whether the posting of photos on the web constitutes a "publication" for copyright purposes. (This case seems to say "yes" because the end user has the ability to download the code or the imagery associated with a website). The Copyright Office does not necessarily agree. They state here that "The definition of publication in the U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published." Thank you very much! In other words, it's up to you to decide whether to register your works as published or unpublished.
Form VA. You mention Form VA as a paper alternative to the virtual filing of an eCO application. Actually, you should use Form GR/PPh/CON (which includes Form VA) If you are using paper for group registrations of photographs (or use Form GR/CP for photos published in periodicals.)
Groups of photos. Photographers are fortunate in that groups of their photos can be registered at one time. You can use eCO for a group of photos if it is (1) a group of unpublished photos (here's that issue, again) or (2) if the photos were published and "contained in the same unit of publication and owned by the same applicant." The Copyright Office describes "units of publication" in traditional media formats such as books and CDs. There are no cases (or rules) that we could find that classify a website or photo database as a unit of publication although we suppose a reasonable argument could be made that a website or database, is a unit of publication (provided the whole thing could be duplicated and copied somewhere else). Still, there are no specific rules regarding websites. A conservative approach would be to use paper forms, instead.
What should you do now? First, we recommend reading attorney Carolyn Wright's solid explanation about registering photographs. Second, you should move forward filing your group collections with either eCO (remember our caveats, above) or Form GR/PPh/CON.
The 90 days thing. We wanted to talk about the 90 day filing requirement. As all Dear Rich readersare aware, you acquire copyright without the registration. But registration prior to an infringement or within 90 days of publication gives you the ability to seek statutory damages and attorney fees. Just so we're all clear, if you wait two years to register and someone infringes the day after you file your application, you can still seek these damages. The 90 days thing was invented primarily to enable TV stations - particularly those that broadcast awards shows and sporting events - to go after people who simultaneously infringe. In other words, if the infringement is on the date of the broadcast but the station registers within 90 days of publication, the station can still seek the damages. In the case of quality photos like yours, we can see why you would pursue the 90-day plan. In the case of photographs like ours (above) we can probably wait and do it annually.
