Should I register the copyright on photos I post to social media?

Should I register the copyright on photos I post to social media?

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  Sculpture, photography, literature, are all works which are protected by copyright law.  The creator of a new work of expression is granted a copyright when the work is fixed in a tangible medium or permanently saved in some manner.  A copyright grants its owner the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original.  If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

Registration of a work is not a prerequisite to a copyright being granted, however registration confers several additional rights to the copyright owner. Registration of a copyright grants the following advantages:

  • For United States citizens, registration of a copyright is a prerequisite to filing suit for copyright infringement.
  • Registration establishes prima facie evidence of the validity of the copyright and facts stated in the certificate when registration is made before or within five years of publication.
  • When registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys’ fees, and costs.
  • Registration permits a copyright owner to establish a record with the United States Customs and Border Protection for protection against the importation of infringing copies.
  • A foreign copyright owner can file a copyright infringement lawsuit without registering, however they forego the advantages granted by registration if they fail to register their copyright before commencing the lawsuit.  This means that a foreign copyright owner, who fails to register their copyright can only obtain an injunction, actual damages, and/or an infringer’s profits as a remedy.

Statutory damages are a powerful remedy for a copyright owner.   Statutory damages allow a copyright owner to be awarded $750 to $30,000 per infringement, however a court can increase the award to $150,000 when a defendant’s infringement is proven to be willful.  The alternative to statutory damages is actual damages.   Actual damages consist of the dollar amount of any demonstrable loss the copyright owner suffered as a result of the infringing activity. This loss may be from lost sales, lost licensing revenue, or any other provable financial loss directly attributable to the infringement.  Proving actual damages is a fact intensive, time consuming exercise.  Most copyright owners prefer to get statutory damages rather than go through to process of demonstrating actual damages.

In the case of social media posts, registration becomes especially important because of the speed at which images on the internet can be distributed.  While many social media users view the images that they post to the internet as a hobby, their opinion quickly changes when their photograph goes viral.  Popular internet images quickly get snapped by people that want to capitalize on that popularity.   The internet makes it trivial to reproduce popular internet images on t-shirts, mugs, and other products.  By the time the copyright owner learns that their image is being reproduced by others for a profit, the damage has been done.  Because the infringement has occurred before the copyright was registered statutory damages are unavailable and the copyright owner will have to prove actual damages.

It is in the best interest of copyright owners, to register their works with the United States Copyright office.  Compared to the advantages that comes with registration, the filing fee to register a copyright is trivial.

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