By Melinda Kern
Calling all photographers! Starting February 20, 2018, the U.S. Copyright Office will implement a new rule affecting how groups of photographs are registered. The rule aims to modernize and streamline the registration process for group registrations of photographs, but also implements other important changes.
Copyright registration is, of course, voluntary. However, photographers should still consider the benefits that copyright registration offers, such as being able to bring an infringement lawsuit. Understanding that the filing fee for registrations can be burdensome for photographers, who often seek to register large volumes of work, the U.S. Copyright Office has created a rule that allows photographers to register multiple works under a single application and single filing fee.
Here are six characteristics that all creators should be aware of:
- Modified registration processes for two group registration options.
The Copyright Office has created two new group registration options for photographs: group registration of published photographs (GRPPH) and group registration of unpublished photographs (GRUPH). The current “unpublished collection” option for photographs and the pilot program for published photographs will no longer be available after the rule takes effect in February. It’s also now up to photographers to determine whether a photograph is published or unpublished according to the Copyright Act, as the Copyright Office won’t register an application including that combines published and unpublished photographs.
The Copyright Act’s definition of “publication” is tricky, even for copyright lawyers. While many photographers may also have trouble distinguishing between whether their works are published or unpublished, the U.S. Copyright Office “intends to add examples [in the Copyright Office Compendium] to explain the difference between published and unpublished photographs,” and also update its informational materials, such as the Copyright Office’s circulars, regarding the rule’s new registration options to help photographers understand this important distinction.
- Paper registration applications are a thing of the past.
All GRPPH and GRUPH applications must be filed online. Any group registration claims attempting to use paper applications will be refused by the Copyright Office. Recognizing that photographers may have difficulties using the new online application process, the Copyright Office will provide an example of the online application on its website for photographers “to familiarize themselves with the new form” and “will prepare an online tutorial that explains how to use the new applications.” The new applications will also include links that will help answer frequently asked questions.
- Registrations are limited to 750 photographs.
Photographers are now limited in the number of photographs that may be registered in a single application. The new rule imposes a 750 photograph limit for both published and unpublished group registration applications, changing the previous options that allowed photographers to register an unlimited number of photographs.
- Applications require digital deposits and Identifiable Information.
The rule changes how photographs within these group registration applications are deposited and the information that must accompany these photographs. Photographers must submit digital copies of their photographs along with their application. This requirement can be met one of two ways: “by uploading the photographs to the electronic registration system or by sending them to the [Copyright] Office on a physical storage device, such as a flash drive, CD-R, or DVD-R.” Digital deposits are required to be in either JPEG, GIF, or TIFF format, and can’t exceed 500MB.
Photographers must also provide a title for the group of photographs as a whole, in addition to assigning each photograph within the application a title and file name. The information for each individual photograph must be submitted in a separate document along with the application, in either Excel, PDF, or other format the Office approves. Applications for group registration of published photographs additionally require the month and year of publication.
- Group applications must meet new eligibility requirements.
The Copyright Office clarified the eligibility requirements for submitting group registration applications. Each photograph must be created by the “same author.” While the term may sound limited, it encompasses works made for hire, which are works prepared by an employee within the scope of his or her employment and the hiring entity is considered the actual “author,” and therefore, the copyright owner, of the work.
For works made for hire, the copyright owner isn’t required to identify the employee who took the photographs in their application. However, if during the registration application process the copyright owner checks the work made for hire box but leaves the designated “employee” space empty, “the application will not be accepted” by the registration system. To prevent this problem, the Copyright Office has advised copyright owners to state that employee(s) are “not named in the application.” If the registration application is approved, the work for hire information, or lack thereof, will still appear in the online public record.
In addition to being created by the same author, all photographs within the group registration application must be owned by the same person or entity. For example, if a corporation files an application to register a group of 500 photographs, that corporation must be the copyright owner for all 500 photographs. A corporation may not file a group registration application if they only own 499 photographs and another individual owns the remaining photograph.
Published photographs registered through the new GRPPH process aren’t required to be published within the same country, but are required to be published within the same calendar year. If an application contains various publication locations, this information may, but isn’t required to, be noted in the application’s “Note to Copyright Office” field. GRPPH applications should also include the author’s country of citizenship or domicile (which will usually be the hiring entity’s under the work made for hire doctrine) and the country where the photographs were first published. The citizenship and publication information helps the Copyright Office determine whether the photographs are eligible for U.S. copyright law protection.
- Group registration won’t limit a photographer’s available remedies.
The rule confirms that each individual photograph registered under the GRPPH and GRUPH registration application is a separate work under the Copyright Act, similar to the current rule. Treating each photograph as an individual work allows a photographer to seek separate statutory damage awards, as opposed to being limited to a single award for all the photographs in a single application. This provides photographers with greater avenues for relief to protect their works.
Melinda Kern is a Legal Fellow with the Copyright Alliance. This post first appeared on the Copyright Alliance blog and has been republished with permission.