[Federal Register Volume 60, Number 232 (Monday, December 4, 1995)]
[Proposed Rules]
[Pages 62057-62060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29293]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 95-7]
Registration of Claims to Copyright, Group Registration of
Photographs
AGENCY: Copyright Office, Library of Congress.
ACTION: Proposed regulations with request for comments.
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SUMMARY: The Copyright Office of the Library of Congress is proposing
regulations that permit group registration of unpublished or published
photographs without the deposit of copies of the works. These proposed
regulations would enable photographers and photography businesses to
seek the benefits of registration by making it less burdensome for them
to register a claim to copyright in a large number of photographs taken
by a single photographer or photography business. The Office seeks
comment on the proposed regulations.
DATES: Comments on the proposed regulation should be in writing and
received on or before January 18, 1996. Reply comments should be
received February 2, 1996.
ADDRESSES: If sent BY MAIL, fifteen copies of written comments should
be addressed to Marilyn J. Kretsinger, Acting General Counsel,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, D.C.
20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366. If BY HAND,
fifteen copies should be brought to: Office of the General Counsel,
Copyright Office, James Madison Memorial Building, Room LM-407, First
and Independence Avenue, S.E., Washington, D.C. 20540.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General
Counsel, Telephone: (202) 707-8380 or Telefax (202) 707-8366.
SUPPLEMENTARY INFORMATION: Section 408 of 17 U.S.C. provides that a
copyright owner may obtain registration of a copyright claim by
delivering to the Copyright Office a deposit, an application and a fee.
With respect to the deposit, the nature of the copy to be deposited is
set out in general terms, e.g., one complete copy of an unpublished
work. However, broad authority is granted to the Register to provide
for alternative forms of deposit. Section 408(c)(1) provides that the
Register may require or permit the deposit of identifying material in
lieu of an actual copy of the work. Congress' intent is reflected in
the various legislative reports that accompanied the enactment of the
copyright law. Congress instructed the Office to keep the deposit
provisions flexible ``so that there will be no obligation to make
deposit where it serves no purpose, so that only one copy or
phonorecord may be deposited where two are not needed, and so that
reasonable adjustments can be made to meet practical needs in special
cases.'' H.R. Rep. No. 1476, 94th Cong., 2d Sess. 151 (1976); S. Rep.
No. 473, 94th Cong., 1st Sess. 134 (1975). The law also authorizes the
Register to require or permit ``a single registration of a group of
related works.''
Registration can be made at any time. Section 412 of 17 U.S.C.
prohibits the awarding of statutory damages and attorney's fees where
the work has not keen registered before an infringement occurs. 1
Although actual damages as well as injunctions are always available
remedies, the Copyright Office recognizes the significant benefits of
early registration.
\1\ A three month grace period, measured from the date of first
publication, is provided for published works.
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Registration Concerns Raised by Photographers
During the congressional hearings on the Copyright Reform Act of
1993, photographers complained that they were unable to take advantage
of the benefits of registration because the Copyright Office practices
were exceedingly burdensome. Photographers stated that it required a
tremendous amount of time and effort to submit a copy of each image
included in a collection and was financially burdensome. Prior to 1993,
the Office revised its practices in an attempt to make registration
easier for photographers. However, a copy of each image continued to be
required. These changes did not sufficiently ease the burdens, and few
photographers have registered their works. Consequently, photographers
urge that they have been given a clear legal right by the copyright
law, but no effective remedy; and this reality encourages infringers to
continue unlawful conduct. See, Copyright Reform Act of 1993: Hearings
on H.R. 897 Before the Subcomm. on Intellectual Property and Judicial
Administration of the House Comm. on the Judiciary, 103d Cong., 1st
Sess. 370 (1993). See also Copyright Reform Act of 1993: Hearing on S.
373 Before the Subcomm. on Patents, Copyrights and Trademarks of the
Senate Comm. on the Judiciary, 103d Cong., 1st Sess. 169 (1993).
(Testimony of Andrew Foster, Executive Director of the Professional
Photographers of America, Inc.)
In June 1993, the Librarian of Congress appointed an Advisory
Committee on Registration and Deposit (ACCORD). That Committee
recommended that the Copyright Office ``greatly expand the use of group
registration and optional deposit to reduce the present burdens'' and
``consult more actively and frequently with present and potential
registrants to
[[Page 62058]]
hear their problems and to respond to them whenever possible.'' Library
of Congress, Advisory Committee on Copyright Registration and Deposit
31 (1993).
For the past year the Office has met with photographers and their
representatives who have urged that the nature of photography, where
thousands of images may be created with only a few, if any, being
published makes registration difficult. At the time registration may be
sought, the photographer does not know which photographs, if any, will
be published. The definition of publication was also cited as
problematic; in many cases it is unclear whether a photograph has been
published. Even when it is clear that a photograph has been published,
the photographer may be unaware of the publication. Finally,
photographers and their representatives noted that often the film is
turned over to the photographer's client for processing and use, thus
leaving the photographer with nothing to deposit with the Copyright
Office.
Photographs are generally copyrightable; an individual selects a
camera, lens, film, and an image to capture taking into consideration
choices such as lighting and composition. Since photographs are usually
entirely new works, for examination purposes there is no issue with
respect to whether or not a photograph is copyrightable. Therefore, it
is possible to consider registration without an actual deposit of the
work. Moreover, in the past the Library of Congress has not relied on
the copyright registration system as a source for its photography
collections. This is not the case with works such as music, motion
pictures, plays, poems, choreography or novels. If the Library depended
on the copyright deposits for its photograph collections, the Copyright
Office would not be able to consider registration without a deposit of
a copy of the work. In proposing this regulation, the Office is not
waiving the Library's rights to receive photographs that are
registered. The Library may select from five to ten photographs from
each registered group of photographs.
Recognizing the difficulties that photographers face in registering
their works and desiring to ameliorate these problems, the Office is
seeking a workable solution for photographers which does not cause
unforeseen problems for publishers, photofinishers and other users of
photographs. To this end, under the authority granted in 17 U.S.C.
408(c)(1), the Office is proposing regulations that permit a single
registration for a group of unpublished and published related works and
also permit registration with identifying material in place of actual
photographs.
We believe that those who use photographs should not be adversely
affected. The Office already will register a claim in an unlimited
number of photographs as an unpublished collection; that collection
would bear only a collective title, and the deposit would consist of
contact sheets or a videotape. There would be no individual identifiers
for individual images contained in the collection.
Guidelines for Group Registration of Photographs
The proposed regulations permit group registration of unpublished
and published photographs on a single application with a fee of $40,
and a deposit of identifying material, if certain conditions are met.
The conditions are that the photographs must be by a single author, be
owned by the same copyright claimant (who need not be the author), be
created on or after March 1, 1989, be created during a single calendar
year, and bear a title which identifies the group as a whole. Published
works whose exact date of publication is known may be included in a
collection as long as the dates of publication do not exceed a three
month period. For example, in one collection a photographer may include
both unpublished photographs created in 1995, and photographs that are
known to have been published between March 1, 1995, and May 31, 1995.
The approximate number of photographs in the group must be
indicated on the application and in the identifying material; where the
collection contains clearly published works, the approximate number of
such photographs must be included in the identifying material. Where a
group contains both unpublished and published photographs, the
Copyright Office will assign a registration number, VAu (for
unpublished works) or VA (for published works) based on the
preponderant status of the photographs as indicated in the identifying
material.
Identifying Material
The identifying material must contain the following information:
name of the author; the name and address of the claimant; the title
given to the group as a whole; the approximate number of photographs
included in the group, and, if the group includes photographs known to
be published, an approximate number of the works that have been
published. It must also contain the range of dates (month, year) during
which the photographs were created (taken)--i.e., the earliest and the
latest; the range of dates of first publication (month, day, year) for
those photographs that have been published; a general description of
the subject matter captured by the photographs; where more than one
subject is included, a general description of each, with particular
emphasis on newsworthy subjects, e.g., bombing of Federal Building in
Oklahoma City, April 1995; ghost towns of Arizona; Million Man March in
Washington, D.C., October 1995. The identifying material must include
the name of the person to contact about using the work if that
information is not already given.
It may also contain any additional identifiers, such as an
identification coding that is used to administer rights. Since the
deposit will not be a copy of each photograph and a question could
arise as to whether or not a particular photograph has been registered,
it is in the claimant's best interest to include as much information as
possible to describe the photographs covered by the registration.
Other Group Registration Possibilities
The Office already permits or requires a single registration for a
number of works. These include the following: contributions to
periodicals by the same author who is an individual (not an employee
for hire) which are published in a twelve month period. For this, a
basic application, for example Form VA for photographs, must be
submitted with an adjunct application, Form GR/CP. All component parts
of a multipart work that are owned by the same claimant and that are
part of the unit of publication should be registered together on a
single application. A single registration may be made for all
categories of unpublished works as unpublished collections if certain
conditions are met. The deposit must contain the entire copyrightable
content of each work included in the collection. 37 CFR 202.20
Separate Registration for an Individual Photograph
Individual photographs may be separately registered. To make a
separate registration for an individual photograph, an applicant should
submit a Form VA, a fee of $20, and a copy of the photograph which
complies with the existing deposit requirements found at 37 CFR 202.20.
Selection of Archival Prints for the Collections for the Library of
Congress
One of the conditions of this proposed group registration procedure
is that the Library of Congress be able to select between five to ten
photographs from
[[Page 62059]]
each registration for its collections. Within six months of
registration, the Library of Congress will determine whether it wishes
to consider certain photographs for its collections. Generally, the
Library is interested in photographs covering newsworthy events by
specific photographers, and it does not anticipate making a large
number of requests for samples or archival quality prints.
Submission of Sample, if Requested
In order for the Library of Congress to determine whether it wishes
to make a selection, it will need to examine a sample of the
photographs included in the registration. The Library will first review
the application and identifying material which identify the photographs
included in the group registration. The Library may then request that
the photographer or photography business send a sample of from fifty to
one hundred images of the photographs in the format that is the least
expensive, but will still facilitate the Library's selection process,
e.g., slides, contact prints in black and white or in color, or good
quality photocopies in black or white. For registrations of up to five
thousand photographs, fifty images may be requested as a sample; for
registrations of over five thousand photographs, another ten images may
be requested for each additional one thousand photographs covered in
the registration. A maximum of one hundred images may be requested for
registrations covering over ten thousand photographs.
Deposit of Archival Quality Photographs
After reviewing the sample, the Library of Congress may request
from five to ten archival quality photographs, depending on the number
of photographs included in the group registration. The Library's
guidelines for deposit of photographs are included in the new proposed
Copyright Office regulation found at 37 CFR 202.20(c)(2)(xx).
The number of photographs that the Library may select depends on
the number of photographs covered in one group registration. For any
group registration of up to five thousand photographs, the Library may
select five photographs for its collections; for each additional one
thousand photographs included in a group registration up to ten
thousand, the Library may select another photograph. For any group over
ten thousand, the deposit would remain ten, archival quality
photographs.
Effective Date
The proposed regulations permitting group registration of
photographs will be effective upon publication of an interim or final
rule. They may be used to register photographs created on or after
March 1, 1989, the effective date of the Berne Convention
Implementation Act of 1988. Prior to March 1, 1989, the copyright law
required that a copyright notice be placed on all copies of published
works; however, for works published after that date, use of the notice
is optional. Therefore, these regulations cover only photographs where
the use of a copyright notice is not an issue.
Further Public Comment
The Office has met with various parties, and has been made aware
both of certain concerns and also the guidelines agreed upon by The
Board of Directors of the American Society of Media Photographers, the
Professional Photographers of America, Photo Marketing Association
International, the Association of Professional Color Laboratories, the
Professional School Photographers Association International and the
Coalition for Consumers' Picture Rights. One of that group's agreements
is to work to eliminate the 17 U.S.C. 412 requirement as a precondition
for statutory damages and attorneys fees for photographers. The Office
takes no position on this particular proposal but observes that
photographers need real relief now; we believe the proposed rule offers
that relief.
The Copyright Office seeks comment on these proposed rules.
Following review of all comments, the Office will adopt interim or
final regulations. The Copyright Office is interested in receiving
information based on actual experience, if possible, including answers
to the following questions.
1. How have courts dealt with deposits consisting of only
identifying material rather than a complete copy of the work?
2. Have such registrations been accorded prima facie evidentiary
effect with respect to copyrightability as well as to the facts in the
certificate?
3. How would the problems of photographs registered under this
regulation differ from those of other registered collections, e.g., in
collections where there are no individual identifiers for the works but
the Copyright Office has a copy of each work included in the
collection?
4. How does this proposed group registration differ from a group
registration for a database covering a three month period of time where
the deposit consists of only a small sample of the copyrightable
authorship from a representative day?
5. What problems would be caused by registrations made under these
proposed regulations that include both unpublished and published works?
6. Will inclusion of information about the agent or licensing
entity be helpful?
7. What might be the abuses, if any?
8. Is the Office proposing too many photographs to be registered on
one application? If yes, what number would be more appropriate?
9. Are there other identifiers that could assist in identifying the
registered works?
Conforming Amendments
The Copyright Office also is proposing to amend 37 CFR
202.3(b)(3)(ii) and footnote 6 to 37 CFR 202.3(c)(2) to conform to the
addition of new 37 CFR 202.3(b)(9).
List of Subjects in 37 CFR Part 202
Claims, Copyright.
Proposed Rule
In consideration of the foregoing, the Copyright Office proposes to
amend 37 CFR part 202 in the manner set forth below:
PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT
1. The authority citation for part 202 is revised to read as
follows:
Authority: 17 U.S.C. 408 and 702.
Sec. 202.3 [Amended]
2. Section 202.3(b)(3)(ii) is amended by removing ``(b)(8)'' and
adding ``(b)(9).''
3. In Sec. 202.3, paragraph (b)(9) is redesignated as paragraph
(b)(10) and a new paragraph (b)(9) is added to read as follows:
Sec. 202.3 Registration of copyright.
* * * * *
(b) * * *
(9) Group registration of photographs.
(i) Pursuant to the authority granted by 17 U.S.C. 408(c)(1), and
without waiving any rights of the Library of Congress to review and
acquire copies of individual photographs, the Register of Copyrights
has determined that, on the basis of a single application, and a single
filing fee of $40, a single registration may be made for a group of
photographs, if the following conditions are met:
(A) The group bears a single title identifying the group as a
whole;
(B) All of the photographs were created by the same author;
[[Page 62060]]
(C) All of the photographs have the same copyright claimant;
(D) All of the photographs were created on or after March 1, 1989;
(E) All of the photographs were created, and if published, were
both created and published during the same year; and
(F) All photographs known to be published were published within a
three month span, e.g., from January 1-March 31, from February 1-April
30.
(ii) Identifying material must consist of:
(A) The name of the author;
(B) The name and address of the claimant;
(C) The title given to the group as a whole;
(D) The approximate number of photographs included in the group;
(E) If the group includes published photographs, an approximate
number of the works that have been published;
(F) The range of dates (month, year) during which the photographs
were created (taken)--i.e., the earliest and the latest;
(G) The range of dates of first publication (month, day, year) for
those photographs that have been published;
(H) A general description of the subject matter captured by the
photographs; where more than one subject is included, a general
description of each, with particular emphasis on newsworthy subjects,
for example, ``Bombing of Federal Building in Oklahoma City, April,
1995;'' ``Ghost Towns of Arizona;'' ``Million Man March in Washington,
D.C., October, 1995;'' and
(I) The identifying material may also contain any additional
identifiers, for example, the identification coding that is used to
administer rights in the photographs.
(iii) The application for group registration must include:
(A) At line 1 of the VA form, a title that identifies the group as
a whole;
(B) Following the title at line 1, the approximate number of
photographs included in the group;
(C) Where all the published works included in the group were
published on the same day, the exact date of first publication;
alternatively, the span of time during which all the published works
were first published, e.g., June 1, 1995 through August 31, 1995; and
(D) If the claimant listed in space 4 is not the agent or licensing
entity for all or some of the photographs in the group, the name,
addresses, telephone and fax numbers of such person or entity. Space 4
should state ``Licensing Information,'' followed by the name, etc.
(iv) If the Library of Congress wishes to review a collection for
possible inclusion of photographs in its collection, the claimant of
record must supply the appropriate material.
(A) The Library may request a maximum of fifty sample images for
the first five thousand photographs covered by one group registration,
and ten more sample images for each additional one thousand photographs
covered, with a maximum of one hundred images for a group registration
covering more than ten thousand or more photographs.
(B) The Library may then select between five and ten specified
photographs to be supplied in prints from each group registration. For
registrations of fewer than five thousand photographs, no more than
five photographs may be selected, and for registrations of ten thousand
or more, no more than ten photographs may be selected.
(C) When photographs from a requested sample have been selected,
the photographer or photography business must provide archival quality
copies of the selected photographs, meeting Library guidelines in
accordance with the deposit requirements of Sec. 202.20(c)(2)(xx).
(D) If any photographer or photography business registering
photographs under this regulation does not provide the required samples
and archival quality copies as requested by the Library, the Copyright
Office may rescind that party's privilege of making further group
registrations under this section.
(v) The fee is $40.
4. Footnote 6 to Sec. 202.3(c)(2) is revised to read as follows:
\6\ In the case of applications for group registration of
newspapers, contributions to periodicals, newsletters, and
photographs, under paragraphs (b)(6), (b)(7), (b)(8) and (b)(9) of
this section, the deposits and fees shall comply with those
specified in the respective paragraphs.
5. Section 202.20 is amended by adding a new paragraph (c)(2)(xx)
to read as follows:
Sec. 202.20 Deposit of copies and phonorecords for copyright
registration.
* * * * *
(c) * * *
(2) * * *
(xx) Group registration of photographs. For group photographs
registered under Sec. 202.3(b)(9), works selected for acquisition by
the Library of Congress must consist of prints that:
(A) Measure at least 8'' x 10'' and do not exceed 20'' x 24'';
(B) Are made on fiber-based paper and archivally processed;
(C) Are not mounted in any way; and
(D) Are marked as follows:
Titles or caption information may be written lightly on the back of
photographs with a #1 soft lead pencil or (preferably) supplied on a
separate sheet of paper and keyed to the prints. Archival ink, supplied
by the Library, may be used on the back of the print, if desired, for
copyright stamps and photographer identification. Adhesive labels,
pressure-sensitive tapes, and ballpoint ink should never be applied to
the backs of the photographs. Photographs should be mailed flat between
two sturdy pieces of cardboard.
Sec. 202.21 [Amended]
6. In Sec. 202.21(a), remove ``and (g)'' and add ``, (g) and (i).''
7. In Sec. 202.21, add a new paragraph (i) to read as follows:
Sec. 202.21 Deposit of identifying material instead of copies.
* * * * *
(i) For purposes of group registration of photographs under
Sec. 202.3(b)(9), identifying material may consist of titles,
descriptions, or lists identifying the photographs included in the
registration.
Dated: November 22, 1995.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 95-29293 Filed 12-1-95; 8:45 am]
BILLING CODE 1410-30-P
