Copyright Registration Question

[Dori3721]

I received the standard email from Higbee a few days ago.

So I searched https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First to try and verify if the image Higbee is referring to was actually registered.  Here's what I found:

• The image is indeed registered
• The Date of Creation & Date of Publication of the image were back in the 1990s.
• However the Registration Date was in late 2017
• The date that the alleged infringement started was years before the 2017 Registration

Conveniently the Registration Date is approx 3 months prior to me receiving the first 'email' about the issue.

I want to confirm my understanding of all this.  To me it looks like these trolls are actively registering Copyrights of very old images AFTER they discover an alleged infringement so they can slap a "registered" sticker on their extortion letter.

Am I missing something? 

Or am I correct that this "registration" is far too late and that the provisions in 17 U.S. Code § 412 are not in play (no award of statutory damages or of attorney’s fees).

It just seems strange that they'd go to the effort (and expense) of belatedly registering the copyright.

thanks

 

[kingkendall]

In order to sue for statutory damages registration must occur within 3 months of creation/publication.  That leaves actual damages case which is a much harder burden for then to prove.  Higbee likes to include in his demand letters that they can sue for actual and statutory damages.  That's a bunch of bull.  They must choose one or the other, not both.  In your case, they don't have a log to stand on for a statutory case. 

[Dori3721]

Thanks for the response.

I'm surprised that an attorney would habitually make false statements of law in widely sent communications. 

I assume Higbee either knows - or should know - the law. 

Interesting that these letters may be (deliberately?) misstating the law.

[Robert Krausankas (BuddhaPi)]

Issue here is he is not misstating the law... he can sue for anything he wants, whether it be actual damages or statutory, he just wouldn't prevail, he's counting on the ignorance of letter recipients and the fear factor.

[kingkendall]

In this video an IP lawyer says in a copyright case a plaintiff can only sue for actual damages or statutory damages.  Not both! 

[Robert Krausankas (BuddhaPi)]

I think you missed my point... technically you are correct, but that doesn't mean they can't file for one or the other or both, they would simply fail, and it would be dismissed... Highbee is smart enough to not file for both.. Heck I could file suit against you today for damages for misspelling my last name, would I prevail, no..would the judge be pissed??? yes, but if i want to pony up the money to file, it's within my rights.. (probably a bad example) Again Higbee is counting on people being uneducated and fearful, the letters are largely scare tactics.

[Dori3721]

Thanks for all the replies.

Is it not a little strange that someone has gone to the effort of registering the copyright on this image when that image is over 20 years old?

What's the point of making that registration in the context of this alleged infringement that clearly pre-dates that registration?

That's the part I don't understand.  Isn't it a big waste of money and resources to do the registration filing?

[A Lawyer]

Thanks for all the replies.

Is it not a little strange that someone has gone to the effort of registering the copyright on this image when that image is over 20 years old?

What's the point of making that registration in the context of this alleged infringement that clearly pre-dates that registration?

That's the part I don't understand.  Isn't it a big waste of money and resources to do the registration filing?

There are a few of reasons. First, they can still get statutory damages so long as the registration pre-dates the infringement. So even if the photo was taken in 1990 and wasn't registered until 2017, if the infringement began after the date of registration (let's say 2018) then they could claim statutory damages. So even if they are limited on what they could claim for the pre-registration infringements, it would be worth it for them to shell out $70 to register to be able to claim more damages for future infringements by other people. Surely, they are going after other people. Second, you generally cannot bring a lawsuit for copyright infringement without a registration, so by registering they are making it easier for them to sue if that's what they want to do. Third, most smart people would demand proof of ownership after being contacted by these people and a registration certificate provides a convenient way for them to show that.

[UnfairlyTargeted]

A registration certificate and the registration database online prove NOTHING.  I could make up a whole song and dance about how I registered some photo and that registration certificate covers the photo, but unless you get something directly from the copyright office I wouldn't believe anything I'm told.  How often do people tell fibs about what is covered by their group registration of photos?  Probably all the time, and the only real way to find out is in court.

In the case of this photo, the proper response is ignore and dump into the trash bin.  They have no options to collect anything from you that are even remotely financially viable.

[PoeNedge]

A registration certificate and the registration database online prove NOTHING.  I could make up a whole song and dance about how I registered some photo and that registration certificate covers the photo, but unless you get something directly from the copyright office I wouldn't believe anything I'm told.  How often do people tell fibs about what is covered by their group registration of photos?  Probably all the time, and the only real way to find out is in court.

In the case of this photo, the proper response is ignore and dump into the trash bin.  They have no options to collect anything from you that are even remotely financially viable.

But if you get the registration number of the photo can't you look it up here: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First

I assume a certificate would have the number on it no? So I don't see why they would make that up. That being said I completely agree to dump it in the trash if it's not registered.

[UnfairlyTargeted]

Sure you can get a number, but what does that really tell you?

My registration # is 123.  Sure, you'll even find a registration in my name for number 123.  But how do you know what photo or photos are included in it?  You don't.

For example: you "stole" my picture of my cat.  I have a registration # 123 and I'm going to sue you if you don't pay $1000 right now.  What I didn't tell you is registration 123 is actually for a picture of my goldfish.  No way for you to know.

Here's what I'd suggest.  For anyone receiving a demand for a supposedly registered image, have the troll send you an official copy of the deposit straight from the copyright office at their expense.  If they can't or are unwilling, ignore.

[Ethan Seven]

A Lawyer is correct. 

If the copyright holder waits for than 3 years (it might be 5) to register the work after creation, they have the burden at trial to prove the registration is valid, but it is an easy burden. 

Many photographers are just starting to register their old work for a couple of reasons.  First, they did not need to in the past because it used to be difficult for people to copy their work, which mostly appeared in print. Second, reverse image search services make it easy for them to see who is using the images without a license.

[Matthew Chan]

I agree with you.  I am routinely skeptical of copyright registration claims especially a group registration. There is no easy or inexpensive way for anyone to verify the validity of a copyright registration of an image.  The US Copyright Office online system is badly antiquated and widely criticized.

A registration certificate and the registration database online prove NOTHING.  I could make up a whole song and dance about how I registered some photo and that registration certificate covers the photo, but unless you get something directly from the copyright office I wouldn't believe anything I'm told.  How often do people tell fibs about what is covered by their group registration of photos?  Probably all the time, and the only real way to find out is in court.

[Matthew Chan]

I blame the inept and dysfunctional management of the US Copyright Office. This is an ongoing complaint with no relief in sight.  There is to much room for hanky-panky by copyright extortionists to "misinterpret" and misrepresent their supposed copyright registrations.

Sure you can get a number, but what does that really tell you?

My registration # is 123.  Sure, you'll even find a registration in my name for number 123.  But how do you know what photo or photos are included in it?  You don't.

For example: you "stole" my picture of my cat.  I have a registration # 123 and I'm going to sue you if you don't pay $1000 right now.  What I didn't tell you is registration 123 is actually for a picture of my goldfish.  No way for you to know.

[A Lawyer]

I agree with you.  I am routinely skeptical of copyright registration claims especially a group registration. There is no easy or inexpensive way for anyone to verify the validity of a copyright registration of an image.  The US Copyright Office online system is badly antiquated and widely criticized.

A registration certificate and the registration database online prove NOTHING.  I could make up a whole song and dance about how I registered some photo and that registration certificate covers the photo, but unless you get something directly from the copyright office I wouldn't believe anything I'm told.  How often do people tell fibs about what is covered by their group registration of photos?  Probably all the time, and the only real way to find out is in court.

You are correct that you cannot view the deposit copy (i.e. the photos that were registered under that certificate number) without paying a fee. But with that said, it would be an exceedingly dangerous game for Higbee to be sending out registration certificates for photos not registered under that certificate number. All it would take would be one person to call his bluff and then he would likely be severely reprimanded or even disbarred for fraud. My guess is that his clients have enough stuff that is legitimately registered that it would be pointless for him to take such an incredible risk by putting it in writing and sending it out by the hundreds. My point is, there are a lot of ways to legitimately mitigate or even beat these guys in the negotiation phase. Best not to waste time on something that will likely bear no fruit like challenging the registration. Or I guess you can wait to find out if it's legit when they sue you.