Black Star Rising reader Richard Cave sent us the following question:
Being a U.K. freelancer, if I as a U.K. resident put my pictures on the Web, do I need to register my images with the U.S. Copyright Office? The reason I ask is that we are no longer local, but now global.
Good question, Richard. Most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions.
Both the U.S. and U.K. are members of the Berne Convention for the Protection of Literary and Artistic Works. Under the Berne Convention, which the U.S. joined in 1989, photographers are not required to include a copyright notice (e.g., © 2006 John Doe) with their images. This is because the Berne Convention prohibits formal requirements that affect the “exercise and enjoyment” of the copyright.
U.S. law, however, still provides certain advantages for use of a copyright notice. For example, the use of a notice can defeat a defense of “innocent infringement.”
If your photos are taken in a country that is a signatory to the Berne Convention, you do not have to register your photos with the U.S. Copyright Office before filing a lawsuit in the U.S. for copyright infringement.
Benefits of Registering
Practically speaking, photographers in the U.K. and other countries may still wish to register their photos in the U.S., however.
The reason is that when a copyright is registered either before infringement or within three months of first publication, the photographer becomes entitled to statutory damages. This can significantly impact the viability of filing suit.
When you are not eligible for statutory damages, you may recover only “actual damages” for the infringement. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. You also may recover the profits the infringer made from the infringement, if they aren’t too speculative.
By contrast, when you are entitled to statutory damages, you may be awarded up to $150,000 per work for willful infringements. Legal fees and costs also may be recovered from the infringer.
Because lawyers and lawsuits are expensive, it rarely is worth filing a lawsuit when you are eligible only for actual damages. It dramatically increases the incentive to pursue an infringement when statutory damages are available.
If your photos are first published in the United States or in a country with which the U.S. has a copyright treaty, they may be registered with the U.S. Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the U.S., then you can register your photos with the U.S. Copyright Office.
In general, a photographer who desires copyright protection for his or her images in a particular country should first determine the extent of protection available to works of foreign authors in that country. If possible, this should be done before the work is published anywhere, because protection may depend on the facts existing at the time of first publication.
All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. However, there are some countries that offer little or no copyright protection to any foreign works.
Check with an attorney to learn the best way to protect your work and to discuss your options when you are infringed.