GROUP COPYRIGHT REGISTRATIONS: DOES REGISTERING WORKS AS A GROUP LIMIT REMEDIES FOR COPYRIGHT INFRINGEMENT?

The following is a summary of an article that will appear in Volume 23, Number 3 of the Entertainment, Arts and Sports Law Journal (Fall/Winter, 2012), a publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association. EASL has given me special permission to publish this summary.

Much confusion has surrounded the issue of group registration of copyrighted works. One theory is that if an author of a creative work such as a photograph or song, registers more than one work in the same application, her entitlement to statutory damages may be compromised. For example, I recently talked to a colleague whose understanding was that if a visual artist registered ten works in the same application, and only one of them was infringed, the artist’s remedy may be limited to one-tenth of the maximum statutory damage award of $150,000. Fortunately for authors of creative works, this is not true. If a group registration is completed properly, visual artists, or any other creators of works including photographs, songs, musical recordings, etc., can retain all the legal remedies afforded by the Copyright Act, while also saving money by avoiding paying for multiple registrations ($35 each for on-line registration and $65 each for paper applications).

This article explains the rules applying to group registrations and the circumstances under which creators can register their works in groups. We also explain the special rules that the Copyright Office has issued that are designed to make it easier for creators, such as illustrators, freelance writers, cartoonists and others, to register their works in groups, even though their work us usually published in a number of different magazines and newspapers on different dates. Finally we discuss another special rule that only applies to published photographs and was intended to help owners of photo copyrights register their works in groups.

Basic Rules for Group Copyright Registration

The basic rules pertaining to group registrations, which are set forth in the Copyright Office website at http://www.copyright.gov/circs/circ01.pdf are as follows:

Basic claims include (1) a single work; (2) multiple unpublished works if the elements are assembled in an orderly form; the combined elements bear a single title identifying the collection as a whole; the copyright claimant in all the elements and in the collection as a whole is the same; and all the elements are by the same author or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element; and (3) multiple published works if they are all first published together in the same publication on the same date and owned by the same claimant.

These rules are clear: group registrations are fine, so long as all works were created by the same person, and (i) if the works are unpublished, all of them may be registered as a group even if they were created at different times, (ii) if the works were published, those that were published in the same publication by the same claimant at the same time may be registered as a group.

In my practice as a music attorney, I often register groups of songs and masters. For instance, if a client wrote and recorded his own songs in an album, I would register the entire album at the same time for one payment to the Copyright Office of $35. This saves time and money. And the registration protects the entire album.

In regard to publication, if the album were not commercially released I would register it as an “unpublished work,” or if it had been released commercially I would register it as a “published work.” The 1976 Copyright Act defines publication as follows: “’Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” However, the rules in regard to publication vary to some extent with respect to each kind of work as we discuss in regard to photographs below.

Special Rules Applying to Creators who Publish their Works in Periodicals

In addition to the rules above Section 408(c)(2) of the Copyright Act directs the Register of Copyrights (the director of the United States Copyright Office within the Library of Congress) to establish regulations “permitting a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period, on the basis of a single deposit, application, and registration fee, …” Pursuant to this provision in the Copyright Act, the Copyright Office issued the following regulation:

 …a single registration, on the basis of a single application, deposit, and registration fee, may be made for a group of works if all of the following conditions are met:

              (A)  All of the works are by the same author;

             (B)  The author of each work is an individual, and not an employer or other person for whom the work was made for hire;

            (C)  Each of the works was first published as a contribution to a periodical (including newspapers) within a twelve-month period; This does not require that each of the works must have been first published during the same calendar year; it does require that, to be   grouped in a single application, the earliest and latest contributions must not have been first published more than twelve months apart.

The purpose of 408(c)(2), and this rule (http://www.copyright.gov/title37/202.html) is to make it easier for creators who publish their works in different newspapers and magazines, such as freelance writers, photographers, cartoonists, illustrators, etc., to register groups of their works that were published in different periodicals during any twelve month period. Suppose, for instance, that a cartoonist publishes fifty different cartoons in several different magazines and newspapers in one year. Under the basic rules set forth in the Copyright Office website, she would be forbidden from filing them all in one application. But under 408(c)(2), she is authorized to file all of them in one application thereby saving time and $1,715 ($49 x $35).

Special Rule for Published Photographs

In addition to the 408(c)(2), there is yet another rule designed to make it easier to register groups of photographs. That rule allows group registration of published photographs taken by the same photographer published within the same calendar year. This means that the photographer can not only register all his photos that were published in different periodicals, he can register all the photos sold during any given twelve month period on one registration. Public display of photos, though, does not constitute publication. Special deposit rules apply as well as instructions for filling out the form (GR/PPh/CON). The application has to be done by snail mail, and the fee is $65. For more details click here.

Conclusion

Group registrations can save creators a great deal of time and money provided that they follow the rules set forth by the Copyright Act.

Article by Steve Gordon, Esq., with the assistance of Ariel Greenberg and Emily Borich