Photo Attorney Blog Celebrates 13 YEARS!

Today is the 13th anniversary of the Photo Attorney® blog!

Thank you for your support! 

This blog is full of helpful information for the photographer’s legal needs. With hundreds of blog entries on a variety of legal subjects that affect photographers, the best way to find information is to use the search tool located at the top right hand corner of the page or check the Posts by Topic at the bottom of the right hand column. Also follow Photo Attorney on Twitter for other links and quick updates on the law. Learn even more with the Photographer’s Legal Guide and get the Photo Attorney® photography forms to help your business.

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Copyright Office Releases New Applications for Group Registration of Photographs

The U.S. Copyright Office recently issued a final rule on group registration of photographs, which will take effect on February 20, 2018. The rule modifies the Office’s procedure for registering published photographs, and it establishes a similar procedure for registering unpublished photographs.

To seek a group registration, beginning February 20, 2018, applicants will be required to use the online applications specifically designated for published and unpublished photographs and will be required to submit a digital copy of each photograph being registered.

The Office released these new applications on February 7, 2018, to give photographers an opportunity to familiarize themselves with the new forms before the rule goes into effect. The Office also prepared help text that provides step-by-step instructions for completing each application. See help text for published and unpublished.

Important Note: Although these new applications have been made available to the public and can start to be filled out and prepared for submission at this time, they should not actually be used to submit any claims until the final rule goes into effect. If the Office receives any claims on these forms before that date, the effective date of registration will be reset to February 20, 2018.

As mentioned in the final rule, applicants will be required to prepare and submit a list containing the titles and file names for each photograph in a group, along with a copy of each photograph in the group. The Office developed templates that may be used to prepare this list. See templates for published and unpublished. The help text mentioned above provides detailed instructions for using these templates.

More information concerning these upgrades to the electronic registration system is available here. When the final rule goes into effect on February 20, 2018 the Office intends to issue a new circular that will provide more information concerning these group registration options.

In the meantime, photographers may continue to use the Standard Application or a paper application to register a group of published photographs or a “collection” of unpublished photographs, but the claim must be received by February 19, 2018. If an applicant attempts to use the Standard Application or a paper application on or after February 20, 2018, the Office will refuse registration and instruct the applicant to resubmit the claim using the appropriate form.

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Plan Ahead: Copyright Office Electronic Registration System to Be Offline for Maintenance

Currently, you may submit an unlimited number of photographs as an unpublished collection, or, if you use the pilot program, for published photographs, through the Electronic Copyright Office (eCO) System. But that all changes on February 20 when registrations will be limited to 750 photos each.

If you’re trying to get your backlog registered before the change, note that the eCO system will be offline for maintenance from 5:00 p.m. eastern time on Thursday, February 15 until 9:00 p.m. eastern time on Monday, February 19.

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Copyright Office Introduces Online Group Registration of Photographs

As part of its continued efforts to modernize its services, the U.S. Copyright Office announces that, as of February 20, 2018, it will begin accepting applications for group registration of photographs through the Office’s online registration system. In most cases, applicants will generally be required to file such applications online, and may include up to 750 photographs in each claim. The Office has also made other changes to streamline the practices relating to group registration of photographs, described in a final rule published in the Federal Register today. The Office believes that these changes will make it significantly easier for photographers to register their works with the Copyright Office. The Office will be releasing the application on its online registration system (eCO) prior to the effective date to provide users with time to familiarize themselves with the new form.

CHECK Leslie Burn’s post for great tips on the new registration rules.

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Reminder! Record your mileage on January 1!

White Sands Layers - copyright Carolyn E. Wright

Regardless of whether your photography is a business or a hobby, you may be able to use it to make a difference in your tax obligation. Specifically, if you are running a photography business, even part-time, the costs to run it can offset your income – not just the income from your photography business but from your day job, as well. If your photography is a hobby, then the costs to support it can be deducted from the income from your photography.

The key is to keep good records, using the tax laws to your advantage. For example, you may be able to deduct your automobile expenses from your taxes. You have two options: you either can track the mileage that you travel for photography purposes to deduct the government rate per mile (currently $0.535); or you can calculate what it costs to operate your vehicle for the year and apply the percentage that you use your automobile for photography to determine your auto expense.

BUT FOR EITHER method, record the starting mileage for your vehicle each year. Check with your tax advisor and the IRS website for more information.

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eCO Improvements

eCO website homepage

Today, the U.S. Copyright Office implemented a series of technical upgrades to its electronic registration system. The upgrades:

  • reorganize the home screen for the eCO system;
  • remove the three questions that previously directed applicants to the Standard Application or the Single Application;
  • introduce a new and improved version of the Single Application;
  • modify the authorship statements in the application for registering a serial publication; and
  • add a new feature that will allow certain file types to be uploaded to the electronic registration system, while blocking unacceptable file types.

These improvements are designed to enhance the user experience and increase the efficiency of the examination of these claims. More information about these technical upgrades is available here.

In addition, the Copyright Office has released an updated circular that provides detailed information about the new version of the Single Application.

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Support the CASE Act (small claims court for creators)

From the Copyright Alliance:

Join the copyright community in asking your Congressional Representative to cosponsor H.R. 3945, the CASE Act of 2017, a bill that would create a copyright small claims court for creators and small businesses (It’s quick and easy to do!)

For many photographers, illustrators, authors, songwriters and other creators who own copyrighted works, enforcing their rights is not feasible. Litigation is expensive and many creators simply can’t afford it. In effect, the U.S. copyright system currently provides creators with rights but no effective remedies.

It’s vital that Congress hear from creators like you on the importance of creating a small claims court. Please contact your Representative today to ask him/her to support H.R. 3945 by asking them to cosponsor the bill. We have provided a sample letter that you can send (but feel free to modify it or use your own). The important thing is to let your voice be heard on this critical issue.

To send your letter, please click here. It only takes a couple of minutes, and you’ll be benefiting the entire creative community by supporting H.R. 3945!

Thanks for your support!

Best,
The Copyright Alliance

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Diary of a Copyright Infringement Lawsuit – 5b (Defendant’s Counterclaim)

As a long overdue entry in the “Diary of a Copyright Infringement Lawsuit” series, a current case shows the risk that an infringement defendant may file a counterclaim against the photographer plaintiff, perhaps as retribution for filing the infringement claim. Counterclaims are claims that could be made by a separate complaint or are brought into a lawsuit between the parties for judicial economy.

For example, in February 2017, photographer Jon Tannen sued CBS Interactive for using 2 of his photos on the website 247sports.com and altering copyright management information for those photos, all without his permission.

In October 2017, CBS sued Tannen in a separate copyright infringement lawsuit claiming that Tannon had “published via social media platforms images copied from the ‘Dooley Surrenders’ episode of GUNSMOKE” without permission. There’s a strong argument that Tannen’s acts were fair use. Some have opined that CBS filed its suit in retaliation for Tannen’s infringement lawsuit

There are two types of counterclaims:

  • Compulsory – if the counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
  • Permissive – any counterclaim that is not compulsory.

Fed.R.Civ.P 13.

The typical counterclaim in a copyright action is when the alleged infringer files for declaratory judgment action on a copyright infringement claim. See more on “dec actions” in my previous blog. For example, Shepard Fairey did not wait to see whether The Associated Press was going to sue him for copyright infringement over Fairey’s use of the Obama photo. Instead, he filed suit against The AP and Mannie Garcia, asking the court for a declaratory judgment that Fairey’s use of the Obama photo was a fair use. Garcia, the photographer of the Obama photo, filed his Counterclaims with his Answer. Because Garcia’s counterclaims were that Fairey and The AP infringed the Obama photo, his counterclaims were compulsory because they arose out of the transaction or occurrence.

The CBS claim against Tannen is an example of a permissive counterclaim, since CBS’s claim is unrelated to Tannen’s initial action. While both claims are for infringements, they are for different copyrighted works and uses and did not arise out of the transaction or occurrence.

A compulsory counterclaim must be filed with the defendant’s answer in the pending case. A court may allow a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. Since CBS filed its lawsuit months after Tannen’s, it likely decided to not try to add its claim to Tannen’s action.

Counterclaims are a uncertainty in a lawsuit. But don’t let them discourage you from standing up for your rights.

[Note that the parties in Tannen’s action reported to the court on November 15, 2017, that they had reached a settlement and the case has been closed. The CBS case remains active as of the date of this post.]

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Update on Proposed Legislation to Limit Number of Unpublished Works per Registration

As an update to the Nov. 1 blog entry, we have good news! According to Robert J. Kasunic, the Associate Register of Copyrights and Director of Registration Policy & Practice, the concern for photographers about the proposal to limit the number of unpublished works per application is unwarranted. He states:

[U]nder the Group Registration of Photographs Notice of Proposed Rulemaking (“NPRM”), group registration of photographs would be limited to 750 photographs rather than the five works proposed under the new Group Registration of Unpublished Works. We are still working on the Group Registration of Photographs final rule in conjunction with the public comments received in that rulemaking. In any case, we fully intend to finalize that rule before finalizing the Group Registration of Unpublished Works final rule for which we are still accepting comments until November 13, 2017. So the bottom line is that we have never intended to limit a group of unpublished photographs to five photographs, but rather the number we proposed for a group of unpublished photographs was 750. The Group Unpublished Works would not be applicable to photographers unless, for some reason, a photographer wanted to register two to five photographs.

(emphasis added).

Jeff Sedlik also reports that a new form, “GRUPH” (Group Registration of Unpublished Photographs), will be made available in the near future to provide for registrations specific to photographers.

In the meantime, photographers should follow current eCO instructions for group registrations. Whew!

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UPDATE to Copyright Office proposes limiting registration for unpublished works to only five

UPDATE!  See the November 3 blog for additional information.

Currently, you may register an unlimited number of photographs on one copyright registration application if the photographs are a collection of unpublished works by the same author and owned by the same claimant. See the Compendium at section 1119. That’s especially helpful to photographers (who often take thousands of photographs), because the registration fee is $55 for each such application.

However, the U.S. Copyright Office is proposing to limit the number of unpublished works per application. In the Office’s announcement about the new rule, it stated:

The proposed rule would replace the current “unpublished collections” registration option. Among other things, applicants would be required to submit an online application and upload their works to the electronic registration system, although the Office may waive these requirements in exceptional cases.

The proposed rule offers a number of significant benefits compared to current practices: it would allow the Office to more easily examine each work for copyrightable authorship, to create a more robust record of the claim, and to improve the overall efficiency of the registration process.

What the Office failed to mention in its announcement is that the proposed rule will limit the number of works per application to only five. See the Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2017-10-12/pdf/2017-21722.pdf. That would make it much more expensive for photographers to register their unpublished photographs.

What’s strange is that the Copyright Office allows you to register an unlimited number of published photographs on the same application as long as they were published in the same year. See the Compendium at 1116.1. So a photographer could publish photographs on a website and register thousands of published photos on a single application to avoid the effect of this proposed rule. But this seems an unnecessary burden.

Please let the Copyright Office know that you oppose the proposed rule. Leave your comments here by November 13, 2017, at 11:59 p.m., eastern time.

HT: David Oppenheimer

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