Guest Post: Copyright Registration Strategies

It is assumed that registration is preferable over non-registration, but I don’t want to start off on any assumptions. Especially after receiving important feedback on a panel series I organized last year through New Mexico Lawyers for the Arts entitled, “The Artist as Entrepreneur.” On this panel, there were no “experts” opining on what artist “should” be doing in their practices to emulate the entrepreneur. Far too often, I think the entrepreneurial and traditional business models are forced upon artists without enough conversation about the creative difference. Instead, I wanted to explore only the businesses and lives of successful, professional visual artists and whether they had adopted entrepreneurial management systems for their businesses, or even whether they considered themselves entrepreneurs-a few of them did not. At any rate, what was the most shocking discovery that emerged was that not one of these professional and successful artists bothered with or was interested in copyright registration. They were not worried about appropriation- they felt it was a minimal issue in their business strategy and not a hindrance to their success or income streams. This is another blog post altogether, but the lesson here is, you don’t have to register your works to be a financially successful artist. It is a choice. While it does supersize your rights in the event of an infringement, there are plenty of successful artists out there who feel like registration is a waste of time and have no interest in pursuing infringement actions. But I would argue, if you chose not to register, it should be a conscious choice, or a part of an overall strategy for your business-selecting certain works to protect and others to be freely shared, perhaps even experimenting with a Creative Commons license on certain works.

Registration versus Deposit

If you do see the value in registration, but the cost and time-consumption is what is stopping you, then keep reading. First, I want to address the confusing issue of copyright registration versus the duty to deposit copies with the Library of Congress. Many may not know that each creator already has an affirmative duty to deposit the two “best” copies of a published work with the Library of Congress, even if those works are not registered with the Copyright Office. And they can fine you if you don’t deposit. This has actually been the rule since 1870 when President Ulysses S. Grant signed a law that required that two copies of every book, pamphlet, map, print, photograph and piece of music registered for copyright be deposited in the Library. Circular 7D from the United States Copyright Office states, “All works under copyright protection that are published in the United States are subject to the mandatory deposit provision of the copyright law.” Both examples from readers, discussed above, could be considered to be covered by this “published works” provision.

These “deposit copies” are to be filed within three months of the first U.S. publication date. The failure to file these deposit copies may result in a demand of copies from the Library of Congress and the imposition of fines and additional expenses for not complying, ranging from $250 to $2500 per work. Now, the Library of Congress doesn’t often respond to noncompliance with fines, or even enforcement, but they have the power to do so. With regard to the issue of orphan works, this could very well be a way to get out from under the orphan works issue without actually having to pay to register your copyright-if registration is sounding too expensive. Exceptions aside, a work on deposit with the Library of Congress could not be considered an orphan work, as long as the owner of the work keeps updated their contact information. So if you’re solely worried about the orphan works issue, then you should deposit copies with the Library of Congress.

However, considering the circumstances of the two readers mentioned above, regarding more prolific bodies of work, submitting two of the best copies of each work could still be a great burden. And if you want the protection that comes along with registration, then one has to turn to developing a strategy regarding registration and deposit, so that priority works are selected for registration, and a financial decision is made whether to wait to take action on the remaining works unless one receives notice of an infringement, understanding that, for published works, this will limit your recovery to actual damages versus statutory damages.

Registering Online Content

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