Thursday, November 5, 2009

Best Practices Copyright Registration Quantities

Best Practices for governmental copyright registration suggest that you should only publish and register one image at a time. As insane as that sounds, it is what could be needed to maximize the value of formal governmental registration with the U.S. Copyright Office, which is required to sue for copyright infringement in U.S. Federal Court.

There’s a tricky and debatable ramification to governmental copyright registration that’s rarely discussed, one that could have a significant impact on the value of an infringement settlement.

A very small percentage of copyright infringements make it all the way to Federal Court. When they do, the defense attorney is inevitably going to argue diminished value of the copyright in every way possible. One way to lower the value of the claim is to argue that the maximum statutory damages must be divided by the quantity of images in their first publication or their governmental registration.

Said another way, if your registration at the U.S. Copyright Office has 10 images on a single application form, and if all 10 images were infringed upon by the same defendant in one occurrence, then defense council will argue that the maximum statutory damage of $150,000 must be divided by 10, which is $15,000 per image. If defense council can get that argument to “stick”, then several conclusions could extend from that logic.

Defense council will argue that the quantity of images in the formal registration divides the applicable valuation or award, even if only one of ten images is infringed. Because 10 images were registered, the award could be $15,000 per image, 1/10th of the maximum statutory limit of $150,000 divided by the quantity of images registered. That’s what defense council will likely argue.

Taken a step further, it could be argued that the first date of publication (the first time people saw your images) also divides the copyright value. So, if you publish 10 images on a web page and that’s their “first publication”, then it could be argued that each image can only get 1/10th of the full statutory maximum, regardless of how they are formally registered because they were published as a collection of images.

Presto, the value of the infringement settlement could plummet 90% (or lower if more images are first published together or registered in one copyright application) if defense council can make this argument prevail. Whether or not one agrees or disagrees with this position is irrelevant. It could be argued by defense council and supported by an expert witness, and it will be in all likelihood.

So, what’s a photographer or illustrator to do?

It is the recommendation of and a Best Practice for Copyright Registration to limit the quantity of images in the first publication of each to only one image … and, to limit each governmental copyright registration to one image per application. In this way, the quantity of images at first publication will not impact the value of what’s being copyrighted, and the full value of statutory damages will likely apply to each infringed image.

Because grouping many images together in their first publication or in formal governmental copyright registration could lower the damages that are collectible when an infringement goes to court, it’s a Best Practice to only publish or register one image at a time.

Of course, neither of these approaches is practical for many. It can be time consuming and expensive, especially if one's tech skills are limited. Batch processing and automated workflows can keep first publication from being a "collective work". But, a la carte, individual registration eliminates the efficiency of bulk registering all the images of a photo shoot or project or calendar year and adds a logistical burden to creators. Some statistics say that 95% of photographers don’t register their copyright.

The inconvenience factor is one reason why image registries like are growing rapidly. Registration with the U.S. Copyright Office is the best defense a creator can have. But if the decision is made to not formally register one’s copyright because of time or money constraints, then some protection is better than none. provides automated registration of many images at once in its commercial registry with its patent-pending Site Protector tool.

1 comment:

  1. Since posting this, I’ve received a few comments. For example, one friend of mine who does expert witness testimony said, in essence, that certainly attorneys will try these techniques to lower valuation per image, but they rarely prevail in court. And, he pointed out that just having governmental registration with the U.S. Copyright Office (I point out that we obviously are not that entity) often encourages settlement before going to trial. I agree completely. To clarify a bit, I add this perspective.

    Because we are breaking new ground with our technology in ways of registering and using copyright, we felt it important to point out any potential downside that comes with efficient processes that include, for example, group registrations. Armed with full information, individuals can make better decisions. And, as we push forward with increasingly useful ways to leverage automation and bulk processes, we didn’t want anyone to feel that we hadn’t adequately disclosed the potential pitfalls. Leveraging automation, bulk processes and improvements in workflow efficiency is integral to everything we do.