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by SantaFeJoe on Fri Mar 08, 2019 11:12 am
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SantaFeJoe
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Doesn’t sound very good:

https://www.thephoblographer.com/2019/03/08/new-court-ruling-makes-it-harder-to-claim-copyright-infringement/

https://www.natlawreview.com/article/us-supreme-court-holds-copyrights-must-be-registered-plaintiffs-can-file

Joe
Learn the rules like a pro, so you can break them like an artist.  -Pablo Picasso
 

by Carolyn E. Wright on Fri Mar 08, 2019 4:03 pm
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Carolyn E. Wright
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SantaFeJoe wrote:


Photographers, don't panic about this. Before this Supreme Court decision, very few courts would allow a copyright infringement lawsuit to proceed with only an application for registration. Most courts required a registered copyright. The Supreme Court now has clarified that you must have received the copyright registration certificate before filing the lawsuit.
 
This doesn't change much for photographers. The statute of limitations is 3 years to sue for copyright infringement. So only if time is running out to sue, then the few months it takes to register your copyright is not a big deal. You can use that time to try to negotiate a settlement (which is how the majority of infringement claims are resolved). You can expedite a copyright registration for $800, which can be used only if the statute of limitations to sue for copyright infringement is about to run.
 
While you won't be able to file a temporary restraining order to stop the infringement without the registration, most infringers stop infringing when you give them a cease and desist notice. [Which, however, is another reason to register your copyrights in advance of the infringement. You then are eligible for statutory damages. If the infringement continues after notice, then that is evidence of willful infringement and should increase the statutory damages award.]
 
If you haven't registered your copyright prior to the start of the infringement, you only can recover actual damages. Actual damages are usually the ordinary license fee for the use. Most license fees are not worth filing suit to recover for them, as the filing fee alone is $400. If the infringer made profits from the unauthorized use (such as selling prints of your photograph), then you can get those profits, as well.
 
With infringements, you also may have a claim for a Digital Millennium Copyright Act (“DMCA”) violation. Names, copyright notices, and other identifying information (such as phone numbers) about the copyright owner of the work constitutes “copyright management information” (“CMI”), including in digital form, when conveyed in connection with copies or displays of a photograph work, pursuant to 17 USC 1202 of the U.S. Copyright Act. Section 1202 also makes it illegal for someone to remove the CMI from your photo to disguise an infringement:
 
No person shall, without the authority of the copyright owner or the law:
(1) intentionally remove or alter any copyright management information . . .
(3) distribute . . . copies of works . . . knowing that copyright management information has been removed or altered without authority of the copyright owner . . . knowing . . . that it will . . . conceal an infringement of any right under this title.

 
The fines for violating this statute start at $2500 and go to $25,000 in addition to attorneys’ fees and any damages for the infringement.  The great news is that you don’t have to register your photo in advance to recover under Section 1202.
 
Want to fix this issue with the registration requirement anyway? Register your copyrights promptly!
 
Carolyn E. Wright, Esq.
Lawyer for Photographers and NSN Moderator
Photo Attorney® at www.photoattorney.com
 

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