STORM TRACK: January 31, 1979 (Volume 2 Issue 2)

The following comment on current copyright law updates somewhat my prior review of the subject, a year ago. This is a distillation of my review of the law, Copyright Office Circulars, and about a half dozen visits to the main office and discussion with several of its staff. That staff has reviewed this text, and it has been revised, accordingly. Incidentally, the last general revision to the law prior to 1976 was 1909. Current changes from 1976 were initiated in 1955. Consequently, it will probably be around in this form for quite some time.

Under the new copyright law, effective January 1, 1978, any new photography -- or existing photography that had not at that time been published or "gone into the public domain" -- is automatically covered by general copyright protection. It becomes effective at the moment of exposure and protects you between the time the picture is taken and when it is registered. Once registered (after January 1, 1978), you are protected for life plus 50 years. Works done for hire have a different schedule.

You may use the copyright notice (example: (c) 1978 David Hoadley) on the borders of slides or prints prior to registration, as when sending them to a publisher. This

puts him on notice that you either already are registered or that you intend to follow-up the publication with registration of pictures used. The date shows the year of "creation," and this notice secures international copyright coverage in those countries that are parties to the Universal Copyright Convention. Technically, the date is the "year in which creation of this work was completed." Normally, this means the moment you take the picture. However, in the eyes of the Copyright Office, the assembling of a collection of pictures which is submitted to it also constitutes the act of "creation" (PL 94-553, October 19, 1976: "Section 101. Definitions ...A work is 'created' when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different, versions, each version constitutes a separate work."). Therefore, although some pictures in a submitted collection may be several years old, the date that the collection (most recent version) is copyrighted becomes the copyright date for each included slide/picture. In other words, you don't need to submit separate forms (make separate and costly submissions) for slides taken over several years. The copyright notice should appear on all published copies, but omission or error will not immediately result in invalidation of the copyright and can be corrected within five years. If no action is taken, your copyright expires after the fifth year.

The procedure for copyright registration of unpublished pictures, including original slides or prints from which these are made, is very easy. One single page Government Form VA must be completed and submitted, with one or more prints and $10.00 (check or money order) per submission to the Register of Copyrights, Library of Congress, Washington, D.C. 20559 (When completing Form VA, leave blank the spaces that are not applicable). They prefer to receive 8" X 10" prints but will accept 5" X 7" and 9" X 12". A single print can be made of several slides ("contact prints"), and each individual slide image will be copyrighted when the print is registered. I initially copyrighted 56 8" X 10" prints in one submission as an "unpublished collection." I used the title:"Hoadley Storm and Cloud Pictures (#l thru #56)." This way, I can use the same title and add later pictures by simply modifying the number in the title (i.e. "... Pictures (#57 thru #58)" etc.). Short, descriptive titles are desirable to facilitate card indexing and future reference by Copyright Office Staff. Based on current interpretation of the Copyright Office legal counsel, you need only register once, either before or after publication. However, prior registration may be less expensive, since registration after publication requires submission of one copy of the complete published work (you buy it, they keep it), if yours is a "contribution to a collective work." If it constitutes all of the illustrations, two copies must be submitted (one copy, if a foreign edition). Provision is also made for copyrighting -through one submission- multiple contributions to a periodical-type publication (newspaper/magazine); write the Copyright Office for details and ask for Form GR/CP. (PL 94-553, October 19, 1976. Section 201(c) "Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.") If several of you chase together and take simultaneous pictures of the same storm, each picture vill still be accepted for copyright. The principal of authorship is the significant point, not the subject.

In the case of infringement, you may file for an injunction and actual damages if the infringement occurred prior to registration, but you must be registered before bringing legal action, However, if you had registered prior to the infringement, you could sue for both statutory damages and attorney's fees. Therefore, while not a precondition to copyright, registering an unpublished work is recommended by the Copyright Office. In the case of a published work including previously unregistered material, you retain full legal rights if you register at any time within three months of publication. Thereafter, you may still register (up to five years after publication) but after the third month, the registration date must precede the infringement for full legal rights. "The effective date of copyright registration is the day on which an acceptable application, deposit, and fee have all been received in the Copyright Office." Provision is made for inadvertent publication of a picture without a copyright notice. If a publisher can validly claim no prior knowledge of an author's copyright, he may be protected from subsequent claim. Consequently, if you release any photography prior to registration, be sure that you have a clear understanding from the users, preferably in writing, as to his or her intended use. Prior to January 1, 1978, publication of a picture not previously copyrighted may have voided any further claim you can make on copyrighting it. However, "a public ... display of a work does not, of itself constitute publication." "To ... display 'publicly' means ... at a place open to the public or ... a substantial number of persons outside of ... a family and its social acquaintances ..." PL 94-553. Acceptance of your registration by the Copyright Office does not preclude existence in their files of another copyright for the same picture. They do not check your application against all other storm pictures. They are only an office of record. Apparently, if duplication existed, it would only become known after legal action had been initiated. Likewise, they have no authority to provide legal advice.

Free from the Copyright Office (not previously mentioned) are: Circulars R4 (fees), R8 (supplementary registration), R15 K Form RE (renewal), R15a & R15t (duration), R22 (investigating status), R30 (special postage for books), R38a (international), R99 (new law highlights), 52 (publishing arrangements), and Form CA (supplementary registration).