Eugene Mopsik, Executive Director
American Society of Media Photographers
Phone: 215 451 2767
Philadelphia, PA… The American Society of Media Photographers (ASMP) has submitted an amicus curiae(“friend of the court”) brief in the case of Muench Photography, Inc. vs. Houghton Mifflin Harcourt Publishing Company and R.R. Donnelley & Sons Company, pending in the United States District Court for the Southern District of New York. At issue are copyright registrations of digital catalogues that include photographs made by ASMP members David Muench and Marc Muench. In ruling on a motion for summary judgment filed by defendants, the court held that the copyright registrations of the digital catalogues did not create copyright registrations for the individual photographs due to the fact that the photographers’ names did not appear on the applications. Because many photographers’ works are in digital catalogues, and because those photographers have come to rely on the registrations of the catalogues to protect their works, the effect of the ruling would be to invalidate copyright registrations covering many thousands of photographs made by media photographers and others. The ASMP brief, which was filed on June 18, 2010, supports the plaintiff’s motion for re-argument and reconsideration of the court’s order granting summary judgment for defendants for the catalogue registrations.
The three major issues addressed in the ASMP brief are: the court gives improper weight to language differences in certain U.S. Copyright Office circulars; the intention of Congress in adopting and in later amending the Copyright Act was to liberalize registration and not to permit minor defects to impede registration; and public policy strongly favors a more equitable interpretation of copyright registration requirements.
As elaborated in the brief, of importance in this case is the Copyright Office’s Compendium of Office Practices II, which states that a copyright registration for an automated database (such as a digital catalogue) covers the individual works in the database, even if every author is not listed by name.
According to Victor S. Perlman, ASMP’s General Counsel, “We believe that the court’s opinion incorrectly nullifies registration of millions of works and places an unnecessary burden on many rights holders. Congress did not intend for photographers, who relied on advice of the U.S. Copyright Office, to be unfairly penalized.”
The court’s memorandum and order rested in part on differences in language used in circulars (Circular 62 for serials and Circular 65 for automated databases) issued by the Copyright Office to conclude that registrations of automated databases should be treated differently from registrations of serials. ASMP argues that both automated databases and serials are considered “collective works” under 17 U.S.C. §101 and that the U.S. Copyright Office correctly makes no distinction between them in its administration of the granting of registrations under the Copyright Act.
The brief was filed on behalf of ASMP by Alston & Bird LLP, by Alan Behr, a partner in the firm’s New York office, and by Mr. Perlman.
ASMP is the leader in promoting photographers’ rights, providing education in better business practices, producing business publications for photographers, and helping to connect purchasers with professional photographers. ASMP, founded in 1944, has over 6,000 members and 39 chapters across the country, and its members include many of the world’s foremost photographers.
Read the Brief at http://asmp.org/pdfs/Muench_amicus.pdf.
More information is available at https://www.asmp.org/.