Registration of Copyright

[David H. Wells]

Hi:

I am not sure there is much point in arguing the details of what copyright
law SHOULD be. What it actually is in the United States is abundantly
clear.
I am not defending it, I am simply explaining it.

I do need to note that it may soon be gutted by the Orphan Works law,
which I adamantly oppose! I have been saying so to any and all elected
officials I can direct my correspondence towards. But, Orphan Works is
another issue.

It is great that the "British Library catalogues all publications." That
still leaves out the vast majority of the collective culture that is
continually being created there, that which is not printed in the
mainstream print media.

Also, a factual clarification.  You can file a claim without registration.
You can sue for most anything.  You are clearly owed whatever the
"misuser" should have paid. But since no lawyer will get involved for such
a small figure, it is not likely to happen.

What is likely to happen is a lawyer will get involved when "real money"
is involved. The punitive damages aspect of the registration process is
the tthing that makes the figures involved Real" in a lawyer's eyes.

Someone lost a set of my unique slides years ago. I had a perfect paper
trail of who received the slides, when, etc., with all the required
signatures. I was able to get a lawyer involved. After a few years in the
legal system we settled for "real" money too.

Again, I am not defending the system, I am simply explaining it.

David H. Wells

Narrative Photography
www.DavidHWells.com
David@...
Don't forget the "H"

[Marc Whipple-2]

--- In STOCKPHOTO@..., "David H. Wells" <david@...> wrote:

> Also, a factual clarification.  You can file a claim without
registration.
> You can sue for most anything.  You are clearly owed whatever the
> "misuser" should have paid. But since no lawyer will get involved
for such
> a small figure, it is not likely to happen.

A clarification clarification:

You can file a claim if you didn't register before the infringement.
Your potential damages are reduced quite a bit but you can certainly
get actual damages plus an injunction (plus additional damages if you
can prove intentional infringement/removal of notice, maybe.) But you
must go and register before you proceed with the suit itself.

While I'll grant you that it is physically *possible* to fill out the
forms and file them with a District Court at any time, legally
speaking, you can't proceed on a copyright suit without your
registration certificate. Period, end of sentence, end of paragraph,
end of law review article. If you do, the court *may* allow you to get
your certificate and amend your claim if you do it timely, but if you
don't get the certificate, your opponent can move for summary judgment
and it will be granted.

M

[Robert Claeson-5]

On 17 Jun 2008, at 17:56, Marc Whipple wrote:

> You can file a claim if you didn't register before the infringement.
> Your potential damages are reduced quite a bit but you can certainly
> get actual damages plus an injunction (plus additional damages if you
> can prove intentional infringement/removal of notice, maybe.) But you
> must go and register before you proceed with the suit itself.
>

So the Berne convention doesn't in practice apply in the USA, then?

And, by the way, is there no such thing as a 'small claims court' in  
the USA?

Robert

[Stockphoto Seller]

Robert,
   
  As long as the U.S. has been a signatory to the Berne Convention, I have wondered about your question. It is like this country (the U.S.) only goes along when it is convenient and feels free to wing it on its own whenever it wants. I'm sure there is much more to it than that, but what are those of us who are not immersed in the arcania of international law to do to get a straight answer?
   
  Here is a link to the text of the current Berne Convention:
  http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
   
  This takes you to a list of the parties to the Berne Convention:
  http://en.wikipedia.org/wiki/List_of_countries_party_to_the_Berne_Convention
   
  Here is a list of WIPO members:
  http://www.wipo.int/members/en/
   
  Carl May/BPS

Robert Claeson <robert@...> wrote:
         
So the Berne convention doesn't in practice apply in the USA, then?




   
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[Non-text portions of this message have been removed]

[Bob Croxford]

On 18 Jun 2008, at 07:31, Stockphoto Seller wrote:

> As long as the U.S. has been a signatory to the Berne Convention, I  
> have wondered about your question. It is like this country (the  
> U.S.) only goes along when it is convenient and feels free to wing  
> it on its own whenever it wants. I'm sure there is much more to it  
> than that, but what are those of us who are not immersed in the  
> arcania of international law to do to get a straight answer?

Dear Carl

This bit is of interest to the Orphan Works Bil.

"Copyright under the Berne Convention must be automatic; it is  
prohibited to require formal registration (note however that when the  
United States joined the Convention in 1988, they continued to make  
statutory damages and attorney's fees only available for registered  
works)."

Bob Croxford

www.atmosphere.co.uk





[Non-text portions of this message have been removed]

[Marc Whipple-2]

--- In STOCKPHOTO@..., Robert Claeson <robert@...> wrote:

>
> On 17 Jun 2008, at 17:56, Marc Whipple wrote:
>
> > You can file a claim if you didn't register before the infringement.
> > Your potential damages are reduced quite a bit but you can certainly
> > get actual damages plus an injunction (plus additional damages if you
> > can prove intentional infringement/removal of notice, maybe.) But you
> > must go and register before you proceed with the suit itself.
> >
>
> So the Berne convention doesn't in practice apply in the USA, then?

That depends on your definition of it "applying." Obtaining the
certificate is an administrative matter and is largely automatic. The
copyright came into being automatically at the moment of creation of
the fixed artwork, and is protected from that moment. Registration is
NOT required to create a copyright. Given the expense and difficulty
of filing a copyright lawsuit in the US, getting your certificate is
the least of your worries.

Furthermore, as noted by Sheldon & Mak here:

http://www.usip.com/articles/bernec.htm

"The Berne Convention also proscribes formal registration requirements
prior to judicial enforcement, so the Copyright Act as amended states
'for actions for infringement of copyright in Berne Convention works
whose country of origin is not the United States,' registration is not
required. Thus American claimants that wish to retain both copyright
and trade secret protection may seek to avoid the registration
requirement (and the associated public deposit in the Library of
Congress) by distribution of the work in another Berne country within
thirty days of its United States publication, thereby qualifying the
work as of foreign origin under the new law."

> And, by the way, is there no such thing as a 'small claims court' in  
> the USA?

There are no Federal small claims courts. Copyright law is entirely
pre-empted in the US by the Federal Government: you cannot sue for
infringement of copyright in a state or local court. (Although you
could, for instance, sue on a copyright *license* under a contracts
theory.)

M

[Joseph Pobereskin]

On Jun 19, 2008, at 9:13 AM, STOCKPHOTO@... wrote:

>  So the Berne convention doesn't in practice apply in the USA, then?

Yes, it does, it just doesn't apply to you and me.  I could be totally  
wrong about this but it seems to me that the Berne Convention is meant  
to unify the copyright laws across borders, not for you and I  
(individuals) but for corporations like Disney, Columbia Pictures/
SONY, etc to prevent the wholesale copying and distribution of their  
copyrighted works (in places like China).

I don't think you or I have enough clout to have a commercial attache  
from the US (or other) Embassy take-up a claim with, say, the Chinese  
(or other) government.  Disney, Sony, BMG, EMI, Time Inc, sure... you  
and me, no.

My 2¢,

Joe Pobereskin

=======================================================================
Joseph Pobereskin Photography                 http://www.pobereskin.com
Deerfield, Illinois USA
                                       Member - ASMP http://www.asmp.org
                              VP - ASMP/Chicago http://www.chimwasmp.org
[phone]      Member - SAA http://www.stockartistsalliance.org
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
*Need a light snack?  "Eat At Joe's"... http://cafejoetogo.blogspot.com
=======================================================================
xyz.abcdefghijklmnopqrstuvw

[William Perry-2]

You may not have clout, but your agency, Istock, Shutterstock, Snapvillage, etc., do have clout and can bring the issue up.  I know for a fact that if one of these microstock companies were to complain to the US about ripped off images in foreign countries, like China, USTR would love to listen to them.  I used to work in the US government and I do know this for a fact..

--- On Thu, 6/19/08, Joseph Pobereskin <joseph@...> wrote:

From: Joseph Pobereskin <joseph@...>
Subject: [STOCKPHOTO] Re: Registration of Copyright
To: stockphoto@...
Date: Thursday, June 19, 2008, 8:26 AM







On Jun 19, 2008, at 9:13 AM, STOCKPHOTO@yahoogro ups.com wrote:

> So the Berne convention doesn't in practice apply in the USA, then?

Yes, it does, it just doesn't apply to you and me. I could be totally
wrong about this but it seems to me that the Berne Convention is meant
to unify the copyright laws across borders, not for you and I
(individuals) but for corporations like Disney, Columbia Pictures/
SONY, etc to prevent the wholesale copying and distribution of their
copyrighted works (in places like China).

I don't think you or I have enough clout to have a commercial attache
from the US (or other) Embassy take-up a claim with, say, the Chinese
(or other) government. Disney, Sony, BMG, EMI, Time Inc, sure... you
and me, no.

My 2¢,

Joe Pobereskin

============ ========= ========= ========= ========= ========= ========= =====
Joseph Pobereskin Photography http://www.poberesk in.com
Deerfield, Illinois USA
Member - ASMP http://www.asmp. org
VP - ASMP/Chicago http://www.chimwasm p.org
[phone] Member - SAA http://www.stockart istsalliance. org
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
*Need a light snack? "Eat At Joe's"... http://cafejoetogo. blogspot. com
============ ========= ========= ========= ========= ========= ========= =====
xyz.abcdefghijklmno pqrstuvw

 














     

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