U.S. copyright law requires you to register the copyright in your photographs before you can sue an offender. If the copyright has not been registered before the infringement happens, you must prove the actual damages and you cannot recover statutory damages, punitive damages or attorney’s fees. Without the ability to recover these costs or obtain punitive damages, the cost of bringing a suit could easily outweigh any financial recovery from the offender. It is critical that you register your photographs to effectively protect your copyright.

The reality is that most photographers simply do not register their work. Consequently, an agency must take some action if they wish to protect the pictures they distribute. Before the Internet, offenders usually copied images from marketing catalogs, so agencies began registering copyright in their catalogs as a means of protecting the images. This form of copyright, known as a “compilation copyright,” protects the arrangement of material in the catalog (plus any original material that the agency created and included in the catalog). However, it may not separately protect each underlying image, and has proved to be a weak method of protection. In many cases where photographers have relied upon a “compilation copyright” to sue an offender, courts have dismissed the suit, ruling that the compilation copyright did not protect the individual image. (See Morris v. Business Concepts, Inc., where the court recently dismissed a lawsuit filed by a photographer who tried to rely upon a compilation copyright).

Technology allows a digital image file to contain many elements, each of which can provide a basis for legal protection. When a photograph is scanned and converted into a digital file, that file can contain the raw scan of the photograph (your intellectual property) as well as any software or embedded information used to digitally track, protect, and manage the digital file (our intellectual property).

Under the law each of these elements can be protected as a separate copyright, or the combination of these elements can be protected as a compilation, providing another blanket of protection. Unlike the “compilation copyright” used to protect catalogs, the bundling of these elements in a single digital file provides a better means of protection since someone stealing a digital file necessarily steals the included elements as well.

The Digital Millennium Copyright Act (DMCA) which went into effect in 1999, provides yet another way to help photographers and agencies protect against infringement. The DMCA was adopted to help protect material distributed in digital form. Under the DMCA, it is a separate act of infringement to remove, alter, tamper with or reverse-engineer any copyright protection mechanism or management information. In order to take advantage of this law, however, the DMCA is not clear on whether the copyright protection and management information must also be registered. Consequently, photographers and agencies should register this material in compilation form, covering both bases to ensure their rights under this new law.

The more legal weapons an agency has to go after copyright offenders, the better its chances to settle or win a claim and obtain adequate damages on behalf of its photographers. If the agency registers these elements, it can claim an additional act of infringement—and additional damages. The deterrent and punitive power of this additional protection is a tremendous legal benefit to you, and under Corbis’ Copyright Registration Program, costs you nothing.

Regardless of these additional protections against infringement, photographers are always encouraged to register copyright in their images to obtain the best possible legal protection.

The more legal weapons an agency has to go after copyright offenders, the better its chances to settle or win a claim on behalf of its photographers.

Photographers become understandably concerned when their pictures are scanned and combined with these other elements to create a digital file. Some fear that a digital copy of a photograph may yield a separate copyright, and that agencies claiming ownership of a "digital copyright" are, in effect, claiming ownership of the photograph in digital form. This is not true. There is only one copyright in a photograph and the photographer owns it regardless of its format (analog or digital). There is no additional or derivative "digital copyright" created simply by scanning a photograph into digital form, and no one who scans these photographs obtains any additional rights in the digital form of the photograph. (See Bridgeman v. Corel).

How does the “compilation copyright” covering the agency-added digital elements impact the photographer’s copyright in their photographs? It has no impact. It only protects the elements contributed by the agency, and does not give the agency any rights to the photograph—just as a copyright in a catalog compilation does not give any rights to the catalog owner. No one can use a “compilation copyright” to obtain any rights to use the underlying photograph..

There is only one copyright in a photograph and the photographer owns it regardless of its format (analog or digital).