Originally posted 2013-11-25 13:27:21. Republished by Blog Post Promoter

Jonathan Gewirtz:

If you submit electronic files e.g., digital photographs on a CD to the US Copyright Office as part of a copyright application, the Copyright Office stores your CD but does not transfer the files on it to its computers or other durable media. There is also no way to resubmit or otherwise replace electronic files stored in the Copyright Office archives if the magnetic or optical media you submitted them on deteriorate.

This appears to mean that the registrations for many copyrighted photographs will become legally indefensible if/when the CDs on which the images were submitted deteriorate. The person with whom I spoke at the Copyright Office suggested submitting photographic prints or contact sheets rather than CDs. This suggestion would have been good advice until recently, but it’s impractical for people who copyright large numbers of digital photos.

That sounds problematic.

By Ron Coleman

LIKELIHOOD OF CONFUSION blog author Ron Coleman is a member of Dhillon Law Group in their New York City and Montclair, New Jersey offices. He is a graduate of Northwestern University School of Law and Princeton University.

4 thoughts on “Modern problems”
  1. The Copyright Office doesn’t necessarily keep the deposit in the first place, unless you pay for the privilege —

    “The Copyright Office general policy is to retain published, registered copyright deposits for at least 5 years, with the exception of deposits of published works registered as visual arts. These are retained for at least 10 years. Unpublished deposits, however, are ordinarily kept for the full copyright term. Registrants who wish to ensure that the Copyright Office will keep their published deposits for the full length of the copyright term must pay a fee of $425 to cover processing and storage costs.” Circular 4, titled “Copyright Office Fees.”

  2. Anonymous, thanks for the additional info. But note that “Unpublished deposits, however, are ordinarily kept for the full copyright term.” I suspect that most photographic submissions are of unpublished work (e.g., the photographer puts thumbnail versions of his recent photos onto a CD and submits it as an unpublished collection).

  3. It’s an evidentiary issue. If the copyright owner has evidence of what was registered (including by testimony), then it may be enough to get to the jury as to what was registered. The Copyright Office recommends that registrants include the file names of the photographs registered. That, and other good record keeping as to what has been registered likely will be enough to prove a registration.

  4. Excellent point, Carolyn, and one I would not have been able to make because I didn’t know when I wrote this post and I didn’t know it until I you posted your comment over five years later. Thank you!

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