The CASE Act has passed into law and will go into effect within the next year and a half. Rules will be released in the coming months to help guide copyright holders and alleged infringers through the new process. More information will be released as we develop resources and once the practice is in place.
Our advocacy does not end with the CASE Act; the next initiative is to modernize the Copyright Office. Creators, especially high volume photographers, are severely hindered by the current system. Prior to the CASE Act being passed, less than 3% of creators registered their work because of the requirement to file in federal court. The CASE Act created a remedy for infringement, but it didn’t fix the issues with determining publication, volume size restrictions, and fees.
Small creators would place greater value on registration if they could register both published and unpublished works together in a single registration. This requirement was created when “published” and “unpublished” had clearly understood meanings. However, today’s means of “publishing” photographs no longer fit these outdated definitions. Furthermore, what is considered “unpublished” today may not be considered as such in the future. That opens the possibility for questions and attacks on the validity of a registration. This is especially true for visual artists, due to the various ways in which large photograph sets from various events for various types of clients and usages. We ask that the Copyright Office comes to establish what is published vs. unpublished or that they remove the requirement until after an infringement notice has been served.
Another approach would be to create an alternate fee structure for small registrants or a tiered schedule based on a number of images per application or year. This would be similar to the Patent and Trademark Office’s small- and micro-entity fee options. This approach would allow photographers and small creators to register their images at a lower cost, which recognizes the market reality that most of America’s photographers and small creators are solo or small businesses. An alternate fee approach would allow the Copyright Office to increase fees for higher value registrations, such as feature films and fine art, whose creators can bear the additional costs.
Another approach to adding value and capturing a larger market share would be for the Copyright Office to create a provisional status for high-volume registrations. This model would promote the USCO mission of improving the completeness of the public record. This option would allow the creator to submit images to the Copyright Office without review and at a lower rate. The registrant could pay an additional fee later for full registration and to gain presumption of validity if the creator’s rights are infringed upon and require legal action.
These are just some of the issues that photographers face when registering their images. We look forward to working with the Copyright Office and Congress to address these problems and to increase registration and participation in the copyright system.