All copyrights are Federal copyrights in the U.S—Federal law preempts all state law w/regard to copyright. You don’t have to apply for the Federal protection, you automatically have such protection by default. The registering of a copyright simply (1) Makes it possible for the owner to sue for infringement of the registered copyright; (2) entitles the owner (in the court’s discretion) to statutory damages; (3) entitles the owner to attorney’s fees.
And the watermarking of the “copyright” notice on the photos doesn’t have to be so blatant—a small © symbol anywhere on the photo would do. In fact, since March 1, 1989 (when the US joined the Berne Convention), marking a photo (or any copyrightable work) as “copyrighted” is no longer required for protection (although, by using a copyright indicator, infringers cannot successfully argue that they didn’t know something was copyrighted).
This is a very common misconception, or misunderstanding of the law. I've litigated copyright infringement actions under both federal law, 17 U.S.C § 101 et seq., in Federal Court and under common law in State Court.
If you have not registered the copyright with the federal copyright office, then you are not afforded the protections of the statute: i.e. access to federal courts, attorney fees/costs, statutory presumptions of damages, etc.
In order to bring action under the Copyright Act, an owner must, in addition to holding exclusive right, register copyright claim in accordance with Copyright Act. See Tang v. Hwang, E.D.Pa.1992, 799 F.Supp. 499. However, one may still register the copyright after an infringement and thereby access the Federal Court and the protections of the Copyright statute. Morgan, Inc. v. White Rock Distilleries, Inc., D.Me.2002, 230 F.Supp.2d 104. While a copyright holder can register copyright and file suit after infringement occurs, doing so negates recovery of statutory damages, as opposed to actual damages. See Olan Mills, Inc. v. Linn Photo Co., C.A.8 (Iowa) 1994, 23 F.3d 1345, 30 U.S.P.Q.2d 1798, rehearing denied.
So preemption ONLY applies IF you register the copyright with the federal copyright office. (This is often referred to as “statutory copyright.”) Even then state courts can still have concurrent jurisdiction, applying the Federal Copyright statute.
So it is correct to say that regardless of registration a copyright still exists, however it is incorrect to say that preemption always applies. The same is true for trade names, trade dress, and trademarks. However, very few ever proceed solely under common law protections, because the common law protections pale in comparison to the protections of the Federal Copyright statute.
I’m sure that I bored the hell out of many of you. However, this is a very common misconception that I find to be very pervasive among amateur photographers, especially climbers. If you are actually selling the photos, through a retail outlet, I highly suggest that you register the copyright with the Copyright Office.
TheLawGod's statement is not incorrect, but it is not correct either.
i.e., state law may not contradict federal law. If federal law completely addresses a particular area, then state law in that area is preempted . E.g., the United States Patent and Copyright Law (after the 1976 Copyright Act); otherwise states may legislate.
I don't think what I said was wrong—my point is that state law does not trump the Berne Convention provisions.