1. Introduction

The travel brochure was a classic use of stock photography, a travel destination company's promotional piece for a vacation retreat. Thousands had been mailed and the great photographs had stimulated substantial interest from would be travelers. The centerpiece photographs of the brochure had been shot by two different photographers. Mary and John, who licensed the usage directly to the travel company's design firm.

About six months after the brochure was published. Mary and John. two old friends. discovered their centerpiece photographs in a magazine article about the location. They were upset, as neither of them had licensed anyone to use their images in such fashion. A quick check with the magazine showed that the images had been scanned from the travel brochure.

The magazine's editor wasn't even apologenc. He admitted the scanning, and offered each of them $25.00 for the use. Neither Mary nor John were about to accept such a token pay ment for such a willful violation of their copy night. Their demands for fair compensation were rejected. and the editor told them to sue if they wanted the $125.00 that the usage would normally bring.

The answer is that Mary read this white paper when it arved, and followed its advice John was too busy to read it and put it on the shelf. never to look at it again. Mary had registered her photograph with the Copynight Office before it was infringed. John didn't know that there was a great advantage to doing so, and how easily and inexpensively it could be done. Do you want to be like John or Mary' Reading this paper could be some of the most rewarding minutes of your professional

career.

2. Why Register?

ASMP's national office is frequently made aware of copyright infringements perpetrated against its members. Most of these infringements go unprosecuted, and the infringers go unscathed.

The reasons for this phenomena of unprosecuted offenses is quickly and easily identifiable. It stems from the fact that the copyright protected photograph(s), which were infringed, were not registered with the Copyright Office in a timely fashion. Although not required to own the copyright, timely registration would make the photographer eligible to collect attorney's fees expended in prosecution, and also eligible for statutory damages up to $100.000 per infringement.

The cost of prosecuting a copyright infringement case can be very high, particularly when an alleged infringer can afford a ngorous defense. Outspending the copynight owner is a tactic that is often used to break a photographer's determination to enforce his/her rights. Most infringers know that photographers have limited resources and will not be able to spend all that is necessary to prosecute a well fought case They are also aware of the fact that without timely registration an award of attomey's fees will be out of reach. further limiting the potential resources of the photographer, since most lawyers will not take such a case on a contingency fee basis. On the other hand, infringers are much more likely to settle out of court when confrontfed with the probability that they will likely have to pay your legal fees, as well as theirs. on top of an award of statutory damages.

Timely registration is dependent upon two circumstances; whether the work is unpub

lished or published. Under copyright law. the word published means: The distribution of copies of a work to the public by sale, other transfer of ownership, by rental. lease or lending. Offering to distribute copies to people or businesses for purposes of further distribution. public performance or public display constitutes publication. Therefore, when you send images to your stock agency, which will do further distribution (submission and licensing). and public display (stock catalogs, etc.) you have legally published your work. A public performance or display, in and of itself. does not constitute publication. Exhibiting your photographs in public does not constitute publication, unless you exhibit them through another party, such as a gallery, which offers them for sale (for further distribution).

The copyright law treats published and unpublished photographs differently, in relation to registration as a prerequisite for infringement remedies. The law prohibits awards for statutory damages or attorney's fees for any infringement of copyright:

a of an unpublished work. occurring before the date of its registration, or bi After the first publication of a work and before the effective date of its registration. unless such registration is made within three months after the first publication of the work

A simple restatement of the law is that you can't collect attorney's fees and statutory damages unless you have registered an unpublished work before the infringement. or unless you registered a published work within three months after its first publication. Note: for published work the law does not speak about 3 months after any publications, but rather three months after its first publication.

You can register a published work at any time following three months after first publication, but that registration will only preserve remedies of attorney's fees and statutory damages for infringements that occur after the registration.

The law is written with a three month allowance after first publication to allow you time to learn of the publication, obtain copies and file the registration.

The following two examples will help clanfy the application of the law.

Example 1:

You shoot a brochure cover and the brochure with the image cover is published for the first time on July 1. You register the image on September 30. Later, you discov er that the image was infringed on August 31. Since you registered within three months of first publication, you may seek an award of attorneys' fees and statutory damages even though the infringing began a month before the date of registration.

Example 2:

You shoot a brochure cover and the brochure with the cover image is published for the first time on July 1. You register the image on December 1. Later you discover that the image was infringed on August 31 and January 15. You are not fully protected for the August 31 infringement, since you failed to register within three months after first publication. You are fully protected for the January 15 infringement since it happened after registration.

At ASMP we find that few unpublished works are infringed. and that most infringements are of published works, and. as such, they occur six months. a year or even longer after a photo's first publication. Obviously, this leads one to the con