Copyright Registration Before You Sue (and Why Photographers Keep Learning This the Hard Way)

08 Thursday Oct 2026

Posted by in Copyright, Intellectual Property, Litigation

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A photographer in Indianapolis shoots a wedding, a storefront, a plate of food. The picture shows up on someone else’s website. A friend says “send a cease-and-desist.” Another friend says “sue them.” Both friends skip the part that actually matters under the Copyright Act: for a United States work, you generally cannot file a civil infringement suit until the Copyright Office has registered the work. Not applied. Registered.

That is §411(a). The Supreme Court closed the “I filed the application last Tuesday” loophole in Fourth Estate Public Benefit Corp. v. Wall-Street.com. The certificate has to issue, or the Office has to refuse the application. An online deposit and a credit-card receipt are not a registration.

Two clocks, not one

Registration gets you in the courthouse door. A timely registration is what gets you statutory damages and attorneys’ fees under §412.

Timely means the registration was made before the infringement started, or within three months after first publication. Miss that window and you can still sue for actual damages and profits – if you can prove them. Proving what one scraped JPEG was worth, and what the restaurant actually made because of it, is how a $750 problem becomes a $15,000 problem that you cannot recover.

This is the part photographers keep learning the hard way. The picture was published on a portfolio site in March. The scrape happened in November. The registration was filed in December, after the angry email. The suit is allowed once the certificate issues. The statutory-damages count is not.

What “register the work” actually means

You register the photograph, or the group of photographs, not the business name and not the camera. Unpublished photos can go in as a group. Published photos have their own group option if they were published in the same calendar year and you meet the Office’s rules. A wedding gallery is not automatically one work. A year’s Instagram feed is not automatically one work.

The deposit has to be the work you intend to sue on. A low-res web crop of a different edit is how people pick fights with the Office that they did not need.

Foreign works have a different path into court. Most of the complaints this blog sees in the Southern and Northern Districts are U.S. photographs, U.S. software, U.S. text. Those need the certificate.

The cease-and-desist is not a substitute

A letter can ask the other side to take the picture down. It can preserve a claim. It cannot manufacture a registration date you do not have. If the plan is federal court, file the application first and wait. The Office is faster than it used to be. It is not same-afternoon fast.

If the plan is only a takedown, a registration still helps. Platforms and hosts are more likely to act on a registration number than on a caption that says “© 2026.”

What this blog will keep watching

When a copyright complaint lands in Indianapolis or Hammond and the registration dates are in the complaint – they usually are – those dates tell you which remedies are even in play. A complaint that pleads statutory damages on a work registered after the scrape is making a claim the statute does not give it. That is a drafting problem, not a jury problem.

Register the pictures you care about. Do it when you publish them, or at least within three months. Then worry about the letter.

Stay tuned for the docket updates.

Kenan L. Farrell, KLF Legal, Indianapolis

What a BMI Bar Case Is (and Why This Blog Will Usually Skip Them)

05 Monday Oct 2026

Posted by in Copyright, Indiana, Intellectual Property, Litigation

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Broadcast Music, Inc. licenses the public performance of songs in its repertoire. When a bar, restaurant, or grill plays that music without a license, BMI and the publishers sue. The complaint names the venue and, often, the owners. It lists a handful of songs performed on a given night. It asks for statutory damages, an injunction, and fees. Indiana federal courts see these cases on a regular basis. The latest is Broadcast Music, Inc. v. Dagger’z Bar and Grill LLC, 4:26-cv-00265, filed September 24, 2026, against the Jeffersonville bar and two individuals.

That is the whole pattern. There is no fight over who wrote the songs, no fair-use argument that goes anywhere, and rarely an answer. The defendant takes a license, settles, or defaults. A consent judgment or a default judgment follows. The docket is short because the legal question is short: the songs were performed in public, and there was no license.

This blog is for named local disputes with something to read – a mark, a specimen, a story that is not the same story as last year’s bar. A BMI filing is technically a copyright lawsuit, and thus we don’t want to ignore them completely. However, they will no longer get their own post. If one of the BMI lawsuits turns into a real contest over ownership or a defense that is not “we will pay,” that one might earn a write-up. Until then, BMI cases will just appear in the monthly updates.

Stay tuned for new cases with something left to say after the complaint.

Kenan L. Farrell, KLF Legal, Indianapolis

What a Schedule A Case Is (and Why This Blog Usually Skips Them)

02 Friday Oct 2026

Posted by in Copyright, Indiana, Intellectual Property, Litigation, Northern District of Indiana, Trademark

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If you scan the Northern District of Indiana copyright and trademark indexes, you will keep seeing captions like Plaintiff v. The Partnerships and Unincorporated Associations Identified on Schedule A. That is not a missing name. That is the case. The real defendants – often dozens or hundreds of Amazon, eBay, Temu, or Shopify storefronts – are listed on a sealed exhibit filed with the complaint. Counsel asks for a temporary restraining order, an asset freeze, and leave to serve by email. Many of those defendants never appear. Defaults follow. The docket looks busy but the local story is thin.

These filings started as a Northern District of Illinois habit and migrated. Hammond now sees a regular diet of them. Some are trademark counterfeiting. Some are copyright. The plaintiff is often a brand or a designer with no Indiana office. The “Indiana” connection is venue and a magistrate who will sign a TRO. That is enough for the statute. It is not enough for the kind of post this blog is for.

This site follows named parties, local businesses, university marks, and the occasional food truck that could not sort out a cease-and-desist. A sealed schedule of overseas sellers does not give you that. There is usually no public complaint worth quoting, no Indiana hook beyond the case number, and no answer coming. When a Schedule A filing names a real local defendant or turns into something other than a default mill, it will earn a post. Until then, you will see those captions in the monthly wrap, if at all, and not as a standalone post.

Stay tuned for the cases with names on both sides of the “v.”

Kenan L. Farrell, KLF Legal, Indianapolis

Proper Use of the Federal Trademark Registration Symbol ® (2026)

30 Wednesday Sep 2026

Posted by in Federal Initiatives, Intellectual Property, Trademark

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As a trademark attorney, I almost always notice whether a company is using the federal registration symbol, ®. From time to time I look the mark up, and there is no registration. Sometimes there is not even an application.

That was the opening of the 2019 version of this post. The rule has not changed, but the mix-ups have gotten more creative.

You may use the ® symbol with a trademark only after the United States Patent and Trademark Office has issued a registration for that mark. Not after you file. Not after the application publishes. Not after an examining attorney issues a notice of allowance. After registration.

Using ® before that can get you into trouble. Knowing and willful misuse can be treated as an attempt to deceive consumers and can support a fraud theory. The USPTO has long said that honest confusion is more common than actual fraud. That is not a license to keep using it anyway.

What the Office still lists as “we hear this a lot”

TMEP §906.02, Improper Use of Registration Symbol, still recognizes the potential for misunderstandings in use of the registration symbol. Here are some common explanations that do not, by themselves, prove fraud:

  • mixing up trademark notice with copyright notice (© can go on a work at first publication; ® cannot go on a mark until registration);
  • the printer did not get instructions, or ignored them;
  • believing that an Indiana state registration, or a foreign registration, authorizes the federal symbol;
  • the registration covers only part of the brand block on the label;
  • the registration covers other goods, not these goods;
  • the registration expired or was cancelled and nobody took the ® off the packaging;
  • another registered mark on the same label is what the symbol was supposed to refer to.

If your facts sound like one of those, fix the artwork. Do not panic.

TM, SM, and ® are not interchangeable

TM means “we claim this as a trademark.” You can use it on an unregistered mark, a pending application, or a common-law use. It is a claim, not a government seal.

SM is the same idea for services.

® means “the USPTO has registered this mark.” It is the only one of the three that requires a live federal registration.

Putting ® on a website footer because the logo “looks official” is how this post keeps getting rewritten.

State registrations do not get you a ®

Indiana will register a trademark through the Secretary of State. That filing has a place. It is not a federal registration. It does not authorize use of the federal symbol. It does not give you nationwide constructive notice. It does not mean the USPTO agrees the mark is clear.

A business can hold an Indiana registration, a pending federal application, and common-law rights in a couple of counties at the same time. Only the federal registration – once it issues – supports ®. The other two support TM or SM, if you want a notice symbol at all.

This blog has already watched local fights where a same-day state filing and a federal application showed up in the same week. Different offices. Different rights. One symbol.

The registration has a scope. The symbol has to follow it.

A registration is for particular goods or services in particular classes. If you are registered for “restaurant services” and you start selling branded hot sauce, the sauce is not registered because the restaurant is. Use TM on the sauce until that class is actually on a certificate.

The same problem shows up in the other direction. The word mark is registered. The new logo is not. Or the logo is registered and the tagline is not. Or the registration lapsed last year and the corrugated box still has ® molded into it.

Look at the certificate. Then look at the thing in the customer’s hand. If they do not match, take the ® off the thing in the customer’s hand.

Pending, allowed, published – still no ®

A serial number is not a registration number. A notice of publication is not a registration. A notice of allowance on an intent-to-use application is not a registration. You still have to file a statement of use, survive examination of that statement, and wait for the certificate.

Intent-to-use applicants are frequent offenders. The mark is sitting in a pitch deck with ® already applied because “we filed.” You filed. You have not registered.

What to do instead

Use TM or SM until the registration issues. When it issues, put ® next to the mark as it appears in the registration, on the goods or services listed in the registration. If you have a house mark registered and a product name that is not, only the house mark gets the ®.

If a registration dies – cancelled, expired, surrendered – the symbol comes off. That includes leftover packaging, the Google Business profile, the email signature, and the sign by the highway.

If you are not sure whether the registration covers a use, that is a clearance question, not a typesetting question. The 2026 fee edition of Should You Register Your Trademark? is the companion piece on whether to file. This one is only about the little R.

Stay tuned for the usual copyright and trademark docket notes.

Kenan L. Farrell, KLF Legal, Indianapolis

Should You Register Your Trademark? (2026 Fee Edition)

23 Wednesday Sep 2026

Posted by in Trademark

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Clients still ask whether it is in their best interest to register a trademark with the U.S. Patent and Trademark Office. The traditional short answer is still: yes, if at all possible, you should register your trademarks.

In January 2025 the USPTO threw out TEAS Plus and TEAS Standard, installed a single “base application,” and started charging extra when the application is incomplete or the goods are typed in free-form. If you bookmarked the 2019 version of this post, the dollar figures on it are antiques.

Registration is still not required. Common-law rights still arise from actual use. The first party to use a mark in commerce, or to file a bona fide intent-to-use application that later matures, still has the better claim in most fights. A registration on the Principal Register still does the useful things it did in 2019: nationwide constructive notice, a presumption of validity and ownership, the right to use the ® symbol, access to the federal courts on a clearer path, and a Customs recordation if you later need one.

None of that is free.

What the USPTO now charges to file

As of the January 18, 2025 fee rule – still the schedule in force in 2026 – an electronic application is:

  • $350 per class for a base application that meets the completeness rules and uses identifications taken from the USPTO ID Manual.
  • +$100 per class if required information is missing at filing (the “insufficient information” surcharge).
  • +$200 per class if any identification is entered in the free-form text box instead of the ID Manual.
  • +$200 per class for each additional 1,000 characters of identification beyond the first 1,000.

A clean one-class filing that uses Manual language and is complete on day one is $350 to the Office. A sloppy one-class filing can be $650 before an examiner has even looked at it. A two-class filing doubles those numbers. Paper filing is $850 per class. Do not file on paper.

Madrid/Section 66(a) applications coming in through WIPO are $600 per class.

Intent-to-use applications add a later bill. A statement of use or amendment to allege use is $150 per class electronically. Extensions of time to file a statement of use remain $125 per class.

What you will spend before you file

Clearance search. The USPTO’s public search system is free and is not enough. A focused knock-out plus attorney review for a single word mark is often in the $300-$600 range. A full U.S. search that includes federal, state, and common-law sources still runs roughly $700-$1,200 once you add professional review. Skipping the search to “save” money is how people fund later cease-and-desist letters and, occasionally, lawsuits this blog writes about.

Attorney time to prepare and file. For a straightforward one-class application, budget $500-$1,200 on top of the USPTO fee, more if the identification is odd, the mark is a logo that needs a description, or there are prior registrations to explain. Office actions are extra. Most of the attorney time after filing is spent answering the first office action, not filling in the form.

A realistic all-in number for a clean one-class use-based filing in 2026, search included, is about $1,200-$2,500. That is higher than the “approximately $800-$1,000” figure in the 2019 post, and it should be. The Office got more expensive. So did everyone else.

What you will spend to keep it

Federal registrations do not die of old age, but they do die of missed maintenance.

  • Section 8 declaration of use (years 5-6): $325 per class
  • Section 9 renewal (years 9-10, and every ten years after): $325 per class
  • Section 15 declaration of incontestability (optional, after five years of continuous use): $250 per class

A combined Section 8 and 15 is $575 per class. A combined Section 8 and 9 at the ten-year mark is $650 per class. Miss the window and you are filing a new application and starting over.

A few things the fee schedule will not tell you

Using the ID Manual is how you stay at $350. That is the Office’s way of saying it would like fewer homemade descriptions of “business services.” If your goods are not in the Manual, pay the $200 and write the identification correctly anyway. A cheap, wrong identification is more expensive than a surcharge.

An Indiana state trademark filing is a different animal and a different price. It is not a substitute for a federal registration if you sell across state lines, online, or anywhere the other party can find a lawyer. It can still be useful locally. It is not nationwide constructive notice.

Intent-to-use is not a loophole for skipping the search. You still have to use the mark, and you still have to pay for the statement of use.

So – should you register?

If the mark is a real business asset and you can budget the filing, yes. The 2019 conclusion still holds: economies rise and fall, and trademark rights can continue indefinitely. The difference in 2026 is that the Office will charge you more for an incomplete form and much more to keep a registration alive at year six and year ten.

Do the search. Use the Manual when you can. File the maintenance on time. And if someone has already sent you a letter about the name, that is a different post.

Kenan L. Farrell, KLF Legal, Indianapolis