Editor’s Note: ASMP took a leading role in organizing the coalition of visual groups to send a letter of protest on February 12, 2018 to the U.S. Copyright Office regarding the rollout of a regulation change affecting group registration of unpublished works, requesting that they postpone the launch of the new regulation until April 20th, 2018.
On Thursday, February 15th, ASMP hosted a Strictly Business webinar, ASMP TALK: Understanding New Copyright Regulations for Group Registration of Photographs with Jeff Sedlik. Video recording in webinar archives.
ASMP and seven other visual arts trade organizations, American Photographic Artists (APA), Digital Media Licensing Association (DMLA), Graphic Artists Guild (GAG), National Press Photographers Association (NPPA), Nature Photographers of North America (NANPA), PLUS Coalition (PLUS), and Professional Photographers of America (PPA), have joined in urging their members to register their photographs before changes to group registration by the U.S. Copyright Office take effect in February.
Currently, photographers can register an unlimited number of images in a single registration application through the unpublished collection procedure or through the pilot program for registering groups of published photographs online. Starting February 20, 2018, there will be a limit of 750 images per registration, whether it is a group of published images or unpublished images.
As the notice explains, “Currently applicants may submit an unlimited number of photographs if they register their works as an unpublished collection, or if they use the pilot program for published photographs.” However, the pilot program for published photographs will end. Further, the Copyright Office will no longer grant registrations to photographers who attempt to register a group of unpublished photographs as an “unpublished collection”. Paper registrations of groups of published and unpublished photos will also end. The existing rules will be replaced by the Group Registration of Published Photographs, as well as the Group Registration for Unpublished Photographs. Both will have a limit of 750 images per registration. The copyright office intends to issue tutorials for the new registration process.
The Copyright Office charges $55 for online registration. Because the registration will be limited to 750 images, photographers with a large number of images will pay more for multiple registrations rather than the one fee for an unlimited number of images.
The 750-image limit was strongly opposed in a joint response to the Copyright Office by ASMP and the seven visual arts trade organizations. Their response was joined by Schaftel & Schmelzer, and Doniger/Burroughs. These groups are now warning their members about the changes, and the deadline for those who want to take advantage of registration under the old rules.
The Copyright Office said in reviewing the rule, it had evaluated the time required to process group registration applications. The office concluded it takes 15-30 minutes for an examiner to process a group registration with less than 750 images, but it can be as much as four times that long to process a registration with more than 750 images. The final rule described many technological issues with the online registration system that contribute to the time increase, including a need to open each individual photograph separately if they are not uploaded as a .ZIP file. There are also problems with the character limit in the registration system and inadequate information in the applications. The Copyright Office also cited the burden on the registration system as a whole caused by the uploading of thousands of photographs in a single registration.
The image limit is not the only change reflected in the new rules. In situations where an individual or company employs one or more photographers, the new rules will allow images by multiple photographers to be intermixed in a single group registration as long as the claimant is the “author” of all of the photographs. A photographer can be the “author” of photographs created by other photographers when those photographs are created in a work-for-hire situation, either because the second photographer is an employee, or because the second photographer is an independent contractor and creates the photographs as works made for hire. Outside of employment situations, there are specific legal conditions that must be satisfied in order for photographs to qualify as works made for hire, so it’s important to consult an attorney and to ensure that all conditions are satisfied before using this option. This is a change in policy for group registration—previous group registrations were limited to groups of photographs created by a single person, regardless of employment status.
The new regulations also offer clarity on the Copyright Office’s position that each photograph in a group registration is an independent work, regardless of whether or not it was registered on the same registration form, a position that could have a positive impact on statutory damages awards in copyright infringement lawsuits.