Sunday, January 28, 2007

Why Register?

I was having dinner with a friend who's been representing a photographer who sued Court TV for using a photograph of his after he refused to license the photograph to him. The case settled after my friend beat out the summary judgement motion of the other side. The case took a lot out of him, and since it was a settlement, he couldn't talk about it. I hope he saw compensation for the work he did, because he took it on a contingency and I didn't think the facts were going to let him get statutory damages or attorneys fees.

From the papers I read as it was going on, one of the arguments the other side made was that it was fair use to use the photograph because it was a newsworthy event. In fact, the photo was a wedding picture and the wife was convicted of murdering (or having had murdered) her husband. (It's been a while since I read over the papers.) I worry every time I hear the argument that some news organization thinks it should be able to use photographs without compensating the photographer because of "news." I know there are judges out there who believe that or who simply don't grasp the importance of licensing photographs to a photographer's business health. They just don't get it.

Back when the 1909 Copyright Act was working its way through Congress, the big newspaper men of the day tried to get a news exception for the use of photographs, meaning any photograph they deemed "newsworthy" could be published without permissiosn of or compensation to a non-employee photographer. In those long ago days, a small group of photographers managed to convince Congress to reject this move. I was amazed when I discovered this when reading through the legislative history of the 1909 Act, because photographers were far less involved with shaping the Copyright Act of 1976. Fortunately, ASMP and other organizations have been far more active in Washington on behalf of photographers during the past 20 years than they were during the middle of the 20th century.

Back to the question of "why register?" Because excellent lawyers like my friend can't afford to take on contingency cases without the likelihood of recovering their fees and the best insurance that will happen is when a photographer has a registration which was made before an infringement takes place. That registration will most likely avoid litigation of any kind, or at least stop it at the summary judgement stage--early in the proceedings.

Today at the workshop, Seth Resnick addressed the registration matter as part of the work-flow process. Every time he processes his digital files, he's automatically making the low resolution jpegs which will be sent off to the Copyright Office on a cd. I expect that when he covers this a little more tomorrow, he'll let the class know how often he sends material to Washington. I spent some time advising a couple of photographers to do it on a 60 day cycle, to make sure the registrations take place during that 90 day window after first publication. I advise they be done within 60 days of creation. It's cheap and easy to register unpublished images, but so few images are really unpublished anymore, with photographers uploading to web galleries. Make no mistake--that's a publication..

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