Copyright Office Adopts Pilot Program Regarding Registration of Photographs

[Oscar Michelen]

In response to the Muench case, the Copyright Office (by way of Marybeth Peters) has put forth an official regulation regarding group registration of photographs. Part of the reason why courts did not give great deference to Marybeth's letters to Nancy Wolff was that they were not official regulations promulgated by the Copyright Office. To correct that, the Office issued 76 CFR 4072 an interim rule establishing a pilot program regarding the registration of copyrights for photo collections.  Here the link to view the reg.: http://www.copyright.gov/fedreg/2011/76fr4072.pdf 

The copyright office will allow registration of photo compilations to provide individual protection to the images contained in the compilation but only if each photograph is identified separately and have a common author. For automated databases, the regulation requires that the entire image be uploaded and not just a description of the image. The reg is silent as to whether the author's name must be listed as well. While this type of regulation is entitled to more deference than the informal letter PACA previously acquired from their wholly owned subsidiary, the Copyright Office, to the extent it allows for  something other than what is required by the Copyright Act, I still think it is not enough to give individual protection to the works included in a compilation registration. 

[Robert Krausankas (BuddhaPi)]

I think if an artist / stock agency wants "individual protection to the works included in a compilation registration" each work should be submitted with image, author, creation date, first publication, ect...just like if you were registering a single work...yeah it would be a huge time suck for the artist, and be an expense as well, but if they want the work protected...oh well such is life 

[SoylentGreen]

Thanks to Oscar for the info.

I guess that there's been quite a bit of lobbying behind the scenes by the likes of Getty, MF, etc?
Additionally, I wonder if these changes also apply retroactively?

Given the extremely large damages that some stock image houses are claiming, I'm still of the opinion that these companies would need to have made their registrations perfectly in every given case.
When seeking "millions" in civil court, I would imagine that the standards of evidence are rather high.

S.G.

[Peeved]

In response to the Muench case, the Copyright Office (by way of Marybeth Peters) has put forth an official regulation regarding group registration of photographs. Part of the reason why courts did not give great deference to Marybeth's letters to Nancy Wolff was that they were not official regulations promulgated by the Copyright Office. To correct that, the Office issued 76 CFR 4072 an interim rule establishing a pilot program regarding the registration of copyrights for photo collections.  Here the link to view the reg.: http://www.copyright.gov/fedreg/2011/76fr4072.pdf 

The copyright office will allow registration of photo compilations to provide individual protection to the images contained in the compilation but only if each photograph is identified separately and have a common author. For automated databases, the regulation requires that the entire image be uploaded and not just a description of the image. The reg is silent as to whether the author's name must be listed as well. While this type of regulation is entitled to more deference than the informal letter PACA previously acquired from their wholly owned subsidiary, the Copyright Office, to the extent it allows for  something other than what is required by the Copyright Act, I still think it is not enough to give individual protection to the works included in a compilation registration.

Although Oscar may not think that it is enough to give individual protection to the works included in a compilation registration, at least us "pirates" may now SEE EACH INDIVIDUAL PHOTOGRAPH of the compilations!

[Robert Krausankas (BuddhaPi)]

In response to the Muench case, the Copyright Office (by way of Marybeth Peters) has put forth an official regulation regarding group registration of photographs. Part of the reason why courts did not give great deference to Marybeth's letters to Nancy Wolff was that they were not official regulations promulgated by the Copyright Office. To correct that, the Office issued 76 CFR 4072 an interim rule establishing a pilot program regarding the registration of copyrights for photo collections.  Here the link to view the reg.: http://www.copyright.gov/fedreg/2011/76fr4072.pdf 

The copyright office will allow registration of photo compilations to provide individual protection to the images contained in the compilation but only if each photograph is identified separately and have a common author. For automated databases, the regulation requires that the entire image be uploaded and not just a description of the image. The reg is silent as to whether the author's name must be listed as well. While this type of regulation is entitled to more deference than the informal letter PACA previously acquired from their wholly owned subsidiary, the Copyright Office, to the extent it allows for  something other than what is required by the Copyright Act, I still think it is not enough to give individual protection to the works included in a compilation registration.

Although Oscar may not think that it is enough to give individual protection to the works included in a compilation registration, at least us "pirates" may now SEE EACH INDIVIDUAL PHOTOGRAPH of the compilations!

of coarse this observation is going on the idea that Getty starts registering their images, they haven't thus far, and nothing makes me think they will in the future. The company may have sold for a shitload of money, but in realty getty Images is not worth nearly that amount, so I doubt they will register anything, as SG state time is money, and the only money they are making is coming from big media and extortion letters....

and while were talking about Getty Images, I think it only right to give Timothy McCormack little plug as well..

Hey copyright cow, I have a question!! Why is it if you are getty's "outside counsel", that in the very few lawsuits they filed, your name is never mentioned??...Could it possibly be that your not a "courtroom lawyer" but actully just a collections clerk??..

[lucia]

The copyright office will allow registration of photo compilations to provide individual protection to the images contained in the compilation but only if each photograph is identified separately and have a common author.

By "have a common author" do you mean "Joe Schmoe, photographer" could register a compilation of 10 photos all taken by "Joe Schmoe" provided each photo is identified separately?

[Robert Krausankas (BuddhaPi)]

The copyright office will allow registration of photo compilations to provide individual protection to the images contained in the compilation but only if each photograph is identified separately and have a common author.

By "have a common author" do you mean "Joe Schmoe, photographer" could register a compilation of 10 photos all taken by "Joe Schmoe" provided each photo is identified separately?

That's how I read it, for example Getty's Stone collection would not be able to be one compilation, as it consists of many photographers, I guess they would have to be seperated by artist then registered as multiple collections, instead of just one ginormous one.

[SoylentGreen]

Here we go, back full circle to the fact that each photo really needs to be documented.
Also, I doubt that Getty would pay their contributors a sufficient amount so as to allow Getty to register each photo as their own.

Much Getty and Masterfile butthurt detected.  Do they even sell images anymore?  lol.



S.G.

[Robert Krausankas (BuddhaPi)]

Do they even sell images anymore?  lol.

S.G.

Nope they support the postal service!

[Moe Hacken]

I agree with Oscar. The registration of a digital photograph should include the author, date of creation, date of publication and a digital copy of the image for each and every one of the individual works. How else is one supposed to know which image the author owns?

For instance, in some of HAN/VKTs infamous wallpaper images, there are actually more than one version of the image circulating the baitpaper sites. The registrations were done by compilations on a number of these images, listing titles, creation dates and publication dates and of course all listing a common author.

However, I don't know that there's any way to look up a copy of each actual digital image that is being registered. Am I wrong? Does the copyright office actually offer digital samples of the copyrighted images upon request?

It's not unusual for a photographer to take several very similar images during a photo shoot. The author should have to register each version if they want full protection for every version of the shot they took.

[Jerry Witt (mcfilms)]

The Copyright Office believes that
when registration is made for a database
consisting predominantly of
photographs and the copyright claim
extends to the individual photographs
themselves, each of those photographs
should be included as part of the
deposit accompanying the application.

You think? All I can say is it's about time.

As the Office said when it announced
its regulations on group registration of
published photographs:
[T]he Office rejects the plea of at least one
commenter to permit the use of descriptive
identifying material in lieu of the actual
images..."

I would LOVE to know the identity of this "one commenter." Which stock company would it be?

Although the Office had previously
expressed a willingness to consider such a
proposal, the most recent notice of proposed
rulemaking noted that ‘the Office is reluctant
to implement a procedure that would permit
the acceptance of deposits that do not
meaningfully reveal the work for which
copyright protection is claimed.’

Right! It's the 21st Century. Submitting digital versions of all the images in a compilation should be a button click. I can't understand why the stock industry wouldn't embrace this (Unless their goal was to keep the market confused and uncertain about the rights to their images.) It is interesting that it seems like the Copyright Office is indicating that PREVIOUS compilations that were registered without accompanying images were not correctly registered:
This is in stark contrast to the deposit
requirements for registration of
unpublished collections, for group
registrations of published photographs,
and for most other forms of copyright
registration. Section 202.3(b)(10)(x),
which governs the deposit for a group
registration of photographs, provides
that the deposit shall consist of ‘‘one
copy of each photograph [to] be
submitted in one of the formats set forth
in Sec. 202.20(c)(2)(xx).’’ See also
§ 202.20(c)(1)(i) (‘‘in the case of
unpublished works, [the deposit shall
consist of] one complete copy or
phonorecord,’’ a provision that applies
to registrations of unpublished
collections as well as individual
___
Maybe I am just not reading that right.

[Robert Krausankas (BuddhaPi)]

I think you read it correctly Jerry, remember Nancy Wolff from PACA was in cahoots with someone from the copyright office ( her name escapes me at the moment ) and Nancy Wolff was the one herself who suggested that registrations should be done "her way", never mind what the law says, as "Wolffs Way" will be cheaper, faster and less work on the copyright office..Once her "friend" in the copyright office was sucked into this new method, she promptly told the stock agencies, "sure you can do it this way"....WRONG!!

I guess Ms. Wolff is now living under a bridge with a family of trolls, licking her woundsand feeling really stupid...

[Moe Hacken]

The role of the Copyright Office is an important part of the discussion about making the law more equitable. There are a couple of logistic questions that have yet to be answered:

1) Is the Copyright Office going to be maintaining a humongous database with every copyrighted work in the world included, along with samples of the media? This is a huge undertaking and one that the C.O. has admitted they don't feel qualified to undertake without a huge boost in resources.

2) Could the C.O. take the role of certifying copyright database services? How would these services get paid for their work and expenses? What would qualify a copyright database registry? I guess it could be similar to domain name registries, but that's not exactly the smoothest system in the world either.

Of course, there's always the question of cost. Who's going to pay for the service of maintaining this registry or registries? The fees may have to increase substantially in order to create the ultimate dream copyright database.

No one's exactly chomping at the bit to take on such a huge project with such complicated legal implications, and no one is really volunteering to pay for the costs involved.

At least the C.O. has been candid about their reluctance to take on such a project.

[SoylentGreen]

Interestingly, the Copyright Office already does all of the things that Moe listed.
Except that the US office would not be forced to handle anything outside of U.S. jurisdiction.
They charge fees, and this should cover operating costs.

It's just that end-users failed to use it properly, and the system was never really intended for "trolling".
In fact, the trolls were counting on deficiencies inherent in the system to enable them to collect monies based on bogus claims.

S.G.

[Moe Hacken]

Yes, S.G., they already do most of that — in a limited way, which is to publicize the work's information. Maintaining the image database we'd like to see is a big part of the challenge. The current position of the C.O. is that they don't want to maintain a viewable image database:

There are related questions, raised by some, as to whether the Copyright Office should have a searchable database of visual images; as we understand it, the Office would make copies of deposits that claimants send to us for registration purposes. We think a government database would be wasteful, ineffective and fraught with legal and practical problems. As a policy matter, the Copyright Office has never in its 200-year history made copyright deposits widely available for viewing (e.g. display or public performance). In contrast to registration information, which is made publicly available, deposits (if they have been retained by the Office) may be viewed by others only under very limited circumstances and subject to regulations that are intended to protect the deposits from unauthorized copying. Some copyright owners may be fearful of having their deposits made available to the public in digital form beyond the limited display that has been the practice for many years. Such a proposition could have a chilling effect on registration, which would in turn reduce the number of works that come to the Library of Congress as deposits through the copyright system.

On a practical level, it is difficult to imagine how the Copyright Office or any government office could ever keep pace with the image technology world that exists outside our doors and beyond our budget. In reality, the Copyright Office does not have and is not likely to obtain the resources that would be necessary to build a database of works that are searchable by image, even if there are some copyright owners who would be amenable to such an undertaking. Our point of comparison is the comprehensive reengineering project that the Copyright Office is just now completing. Among other things, this project has made it possible for authors, publishers and other copyright owners to routinely register their copyright claims electronically. Under the “Electronic Copyright Office” (or “eCO”), claimants may complete copyright applications, pay the required fees and submit the appropriate deposit copies of their works—all on-line. The eCO portion of reengineering took five years and has cost $17 million to date. We used off-the-shelf software (in accordance with Congressional directives) and completed the project on time and within the budget Congress appropriated. It represents the single biggest overhaul of the Copyright Office since 1870 and the most significant adjustment to registration practices since 1978. Based on this experience, we believe it would be highly impractical for the Copyright Office to employ cutting-edge image recognition technology.

Finally, the process of searching for a copyright owner is not a function controlled exclusively by the Copyright Office. Although the Copyright Office is one resource, our records will never be a complete resource because registration is a voluntary process and many copyright owners, including photographers and visual artists, choose not to register. Thus it is the case already that when searching for a copyright owner, users look to private databases, websites, publishers, collecting societies, professional organizations, trade associations and many other resources.

http://www.copyright.gov/docs/regstat031308.html

This comment is part of the C.O.'s statements discussing orphan works.