[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regulations that permit group registration of unpublished or published 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set out in general terms, e.g., one complete copy of an unpublished 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