Rules on Protection Simplifications

With the continued growth of Internet-related new technologies, authors, website operators and photographers are producing larger and larger volumes of digital content. The Coalition of Visual Artists¹ surveyed 1,744 photographers and found that while 70% take less than 750 images in a day, 17% reported taking between 751 to 1,500 images in a single day.² The cost of filing a single U.S. Copyright Application ranges from $35 to $85.³ Included in the technical hurdles to registration is an obligation to segregate between “published” and “unpublished” works, which too often are still being edited for possible publication.⁴

To help, the Copyright Office offers single applications linked with multiple images either as (a) a group, or (b) a database.⁵ Under this process, a group could contain a maximum of 750 images from a single author, and a database would have to include an “automated” storage interface and could not simply be folders of images.⁶ As a consequence, a photography studio would be forced to file individual periodic applications for each photographer, that did not span over two calendar years, for both the published and unpublished works, and create software to automate the process of database storage and initiate quarterly protection filings.⁷

The new process is migrating away from a paper filing of group photographs and will offer a simple online portal where the 750 images may be uploaded. Employers who own the content under a “work for hire” grant now can serve as the sole applicant/author, allowing single filings irrespective of the photographer’s identity.⁸ Finally, the requirement that all images be published within a single country has been removed.⁹

Clarification of Rules on Statutory Awards

Statutory damages for registered works are generally “with respect to any one work…in a sum of not less than $750 or more than $30,000 as the court considers just.”¹⁰ In cases where an infringer can prove he/she was unaware of the infringement, the number may be reduced to $200 per work infringed.¹¹ Certain certificates of registration (groups or databases) may include hundreds or thousands of images and arguably cover more than one “work.” In a case where multiple images were copied by an infringer, a holder often will desire to secure multiple statutory awards for each work infringed.

The Copyright Office and the Courts have taken the position that a single published database (e.g. an online website), which includes multiple images when copied (in whole or in part) results in the copy of a single “compilation” work and therefore the award of only one statutory award, even if a large number of images were copied in the database.¹² The new guidelines affirm that a group registration protects each image individually and not as a compilation, giving multiple awards when many works are infringed.¹³ In theory, a group registration of 750 works, if all are infringed, could result in a minimum award of $150,000 for innocent infringers.

In early 2017, one District Court found that when a number of images in an unpublished database (e.g. automated in-house large database) were copied this could result in the grant of multiple statutory awards linked with each image infringed.¹⁴¹⁵ Trying to distinguish this important precedent, the Office argues that database registrations should only result in one statutory award irrespective of the content, while group registrations are the only way to protect multiple images.¹⁶ The law does not support such a simple distinction. For example, a website owner who feels he/she is entitled to a statutory award if the page is protected as a compilation work, cannot simply protect all five images on the same page using a group registration and hope to get five statutory awards as argued by the Copyright Office new regulations.

But generally speaking, the current final rules strongly suggest, if possible financially and logistically, that greater consideration be given to protecting under the group option. We do not recommend dual registration of content using both a database and a group option as this would result in annulment of the merit of claims of individual protection of works found in a database.

¹ The Coalition of Visual Artists includes multiple organizations such as the American Photographic Artists (APA), the American Society of Media Photographers (ASMP), the Digital Media Licensing Association (DMLA), the Graphic Artists Guild (GAG) and five others.
² Fed. Reg. Vol. 83, No. 12, p. 2545.
³ 37 C.F.R. § 201.3 provides that paper registrations on Forms TC, VA, PA SE and SR require payment of a fee of $85, while the standard online application fee is $55. A lower fee of $35 may be applied upon filing of a single work by a single author (and not work for hire).
⁴ Works under hire get a grant of protection of 95 years from publication or 120 years from creation, whichever is shorter. 17 U.S.C. § 302(c).
⁵ 37 C.F.R. § 202.3(b)(5) – Automated Databases; 37 C.F.R. § 202.3(b)(10) – Group of Published Photographs.
⁶ 37 C.F.R. § 202.3(b)(5)(i).
⁷ 37 C.F.R. § 202.3(b)(5)(i)(A),(F).
⁸ Fed. Reg. Vol. 83, No. 12, p. 2542–47.
⁹ Fed. Reg. Vol. 83, No. 12, p. 2546.
¹⁰ 17 U.S.C. § 504(c)(1).
¹¹ 17 U.S.C. § 504(c)(2).
¹² Buc International Corp. v. International Yacht Council Limited, 489 F.3d 1129 (11th Cir. 2007).
¹³ Fed. Reg. Vol. 83, No. 12, p. 2542–47 – “under a group registration… will be expressly be treated as a separate registration for each photograph that is included within the group, and applicants who wish to ensure the availability of separate statutory damages should select one of those group registration options [and not a database option].”
¹⁴ VHT, Inc. v. Zillow Group, Inc. et al., No. 2:2015cv01096 (W.D. Wash. 2017).
¹⁵ Limited by the doctrine of independent commercial value of the work(s) linked with group registrations.
¹⁶ Fed. Reg. Vol. 83, No. 12, p. 2547