[Federal Register Volume 66, Number 137 (Tuesday, July 17, 2001)]
[Rules and Regulations]
[Pages 37142-37150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17864]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 95-7C]


Registration of Claims to Copyright, Group Registration of 
Photographs

AGENCY: Copyright Office, Library of Congress.

ACTION: Final regulations.

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SUMMARY: The Copyright Office of the Library of Congress is announcing 
final regulations to establish a new procedure for group registration 
of published photographs. The new regulations permit submission of 
groups of published images in a variety of formats as deposit copies, 
together with an application and filing fee. This option applies to 
groups of works created by an individual photographer that are 
published within one calendar year. The Office is also modifying 
deposit requirements for groups of unpublished

[[Page 37143]]

photographs registered as unpublished collections.

EFFECTIVE DATE: August 16, 2001.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Patricia Sinn, Senior Attorney, P.O. Box 70977, Southwest Station, 
Washington, DC 20024. Telephone: (202) 707-8380. Fax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: In this document, we announce a final rule 
governing group registration of published photographs. The rule also 
liberalizes the deposit requirements for photographs included in 
unpublished collections of photographs registered pursuant to 37 CFR 
202.3(b)(3). The new rule permits a group of photographs taken by the 
same photographer and published within the same calendar year to be 
submitted as a group for a single registration. If the claimant does 
not wish to or cannot identify the specific date of publication of each 
photograph, a range of publication dates may be stated provided that 
all of the photographs in the group were first published within three 
months before the date the application, fee and deposit are received by 
the Copyright Office. The deposit for the group registration of 
photographs, or for photographs submitted as unpublished collections 
pursuant to 37 CFR 202.3(b)(3), may consist of images on CD-ROMs or 
DVD-ROMs, unmounted prints measuring at least 3 inches by 3 inches, 
contact sheets, slides with single or multiple images, the photograph 
in a form in which it has been published (e.g., clippings from 
newspapers or magazines); photocopies; or a videotape clearly depicting 
each photograph.

I. Background

    Under the 1976 Copyright Act, as amended, an applicant may seek 
registration of a claim in an original work of authorship with the 
Copyright Office by submitting a completed application, the applicable 
fee, and a deposit of the work to be registered. Title 17, United 
States Code, sets forth some of the requirements for the deposit and 
authorizes the Register of Copyrights to specify by regulation the 
nature of the copies or phonorecords to be deposited. See 17 U.S.C. 
408(b), 408(c). The legislative history of the 1976 Act also reflects 
Congress's intent to give the Register the ability to adjust deposit 
requirements. See H.R. Rep. No. 94-1476, at 153, 154 (1976) (``House 
Report''). Generally, one complete copy or phonorecord of an 
unpublished work is required as a deposit, and two complete copies or 
phonorecords of the best edition of a published work are required if 
the work is first published in the United States. However, the Register 
of Copyrights may permit the deposit of identifying material instead of 
copies or phonorecords ``where copies or phonorecords are bulky, 
unwieldy, easily broken, or otherwise impractical to file and retain as 
records identifying the work registered * * *'' Id. at 154. Congress 
has also authorized the Register to allow a single registration for a 
group of related works in order to alleviate expense for authors and 
administrative burdens on the Copyright Office. 17 U.S.C. 408(c). See 
also 65 FR 26162, 26163 (May 5, 2000). A group of photographs by one 
photographer was cited as one example where group registration might be 
appropriate. House Report at 154.
    During congressional hearings on the proposed 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 too burdensome. Photographers stated that it required a 
tremendous amount of time and effort to submit a copy of each image 
that they wished to register and that registration was financially 
burdensome.\1\
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    \1\ 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. 370-72 (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).
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    In reaction to these concerns and following the 1993 
recommendations of the Librarian of Congress's Advisory Committee on 
Copyright Registration and Deposit (ACCORD), see Library of Congress, 
Advisory Committee on Copyright Registration and Deposit, Report of the 
Co-Chairs, at 20 (1993), the Office initiated a proposed rulemaking in 
December 1995. 60 FR 61657 (Dec. 4, 1995). The Office initially 
proposed regulations which would have permitted group registration of 
mixed unpublished and published photographs, with a deposit of 
identifying material consisting of general descriptions of the 
photographs rather than a deposit of images of the photographs. Because 
the proposed rules elicited much controversy, the Office held a public 
hearing and allowed an additional comment period. See 61 FR 28829 (June 
6, 1996). Sharply differing views were presented by interested parties.
    Having reviewed all the comments and testimony, and having 
considered various approaches to facilitate copyright registration for 
photographers, a year ago the Office announced new proposed rules that 
would permit group registration of related published photographs and 
liberalize the deposit requirements for unpublished collections of 
photographs. 65 FR 26162 (May 5, 2000). Under this proposal, a group 
registration of up to 500 photographs created by one photographer 
published within the same calendar year would be permitted. Id. 
However, this proposal incorporated a less liberal deposit requirement 
than the original proposal; rather than accept general descriptions of 
the subject matter of the photographs in lieu of the photographs 
themselves, the Office proposed to require the deposit of a copy of 
each photograph in the group. The Office explained that it was 
reluctant to implement a procedure that would permit acceptance of 
deposits that do not meaningfully reveal the works for which copyright 
protection is claimed. On the other hand, the proposed rule would 
permit submission of images in a number of formats, in order to make it 
as easy and inexpensive as possible for photographers to register their 
works while still providing the actual images for which copyright was 
claimed. The proposed formats included digital images on CD-ROM or DVD-
ROM, single images, contact sheets, slides with single images, slides 
each containing up to 36 images, multiple images on video tape, or the 
formats in which the images were originally published (e.g., clippings 
from newspapers or magazines). 65 FR 26164.
    In this announcement, comment was requested on several issues, 
including: how many images should an applicant be permitted to include 
in one registration; how the date of publication should be provided for 
each photograph in a group; whether the Office's general continuation 
sheet (CON) should be used for identification purposes, or whether an 
optional specialized continuation sheet which would provide specific 
information about each photograph included in a group should be used; 
whether claimants should be required to number the photographs in a 
group consecutively, and the manner in which the numbering would be 
accomplished; whether the Office should accept deposits in formats 
other than those set forth in the proposed rule, and if so, in what 
formats; what file formats should be accepted for photographs submitted 
in electronic form; and whether the Office should consider offering the 
alternative of providing a range of dates for images covering a three-
month period, rather than providing the specific date of

[[Page 37144]]

publication of each photograph in the group. 65 FR 26165-26166.

II. Comments Received in Response to the May 5, 2000 Notice of 
Proposed Rulemaking

    The Office received eleven sets of comments in response to its 
proposed regulations published May 5, 2000. The comments covered not 
only the questions the Office presented May 5, 2000, but also other 
issues such as whether the Office should revisit its earlier proposal 
to permit the use of general descriptions of photographs in lieu of 
requiring deposit of the actual images; whether applicants for group 
registration of photographs should be required to comply with proposed 
``Photo Industry Copyright Guidelines'' developed by associations 
representing manufacturers, photographers, photo processing firms and 
camera stores; and whether the proposed limit of 500 photographic 
images in a group should be rejected.

A. Comments in Response to Questions Posed in Notice of Proposed 
Rulemaking

1. How Should the Date of Publication of Each Photograph Be Indicated 
on (a) the Deposit Itself, and (b) a Continuation Sheet? Should a New 
Continuation Sheet Be Created for This Purpose, or Should the Office's 
Current Continuation Sheet, Form CON, Be Used?
    The American Society of Media Photographers (ASMP) suggested that 
for digital media, the file name for a particular image could be cross 
referenced to the image's date of publication by entering the file name 
and publication date on a reference sheet. For slides containing up to 
36 images, each image should be numbered and that the number and the 
date of publication of the image could similarly be recorded on a list. 
For contact sheets, that date of publication could be written on an 
accompanying sheet with the frame number of the image cross-referenced 
to the date of publication. For videotapes, a cross-referenced list 
could be made on which the date of publication of each image is listed 
in the same sequence in which the images appear on the videotape. ASMP 
comments at 1. ASMP noted that the date of publication of each 
photograph can be indicated ``by attaching * * * reference sheets * * * 
to the continuation sheet.'' ASMP comments at 1. By doing so, ``the 
date of publication is indicated.'' Id. ASMP also endorsed the idea of 
fashioning a special continuation sheet tailored to the requirements 
for group registration of photographs.
    A number of commenters asserted that requiring photographers to 
identify dates of publication specifically for each photograph 
submitted would be unduly burdensome, placing a hardship on 
photographers outweighing any benefit to the public record. 
Professional Photographers of America (PPA) suggested that if such a 
requirement is retained, photographers should have the flexibility to 
identify publication dates on the deposited image itself, the 
application form, or on a continuation sheet, and that photographers be 
given latitude to choose the most efficient methods of dating the 
photographs based upon the nature of their own businesses. PPA comments 
at 10. PPA also suggested that a photographer should be free to use any 
labeling system as long as it meets the goal of enabling one to 
identify the specific date of publication of any photograph in the 
group. Id. at 12. The Advertising Photographers of America, National 
(APA) suggested that the regulations should require only that a 
claimant indicate in a permanent manner the publication date of each 
photograph on the deposit or on the registration application or 
continuation sheet, and suggested that claimants choosing to note the 
publication date on the registration application or continuation sheet 
should number each photograph on the deposit and indicate the 
publication date for each image by photograph number. APA comments at 
1-2. APA commented that claimants who choose to state the publication 
date on the continuation sheet should number each photograph on the 
deposit and, on the continuation sheet, indicate the publication date 
for each image by photograph number. APA comments at 2. APA also 
suggested that photographers be permitted to choose the form (Form CON 
or a new, specialized continuation sheet) most appropriate in a given 
case. The Graphic Artists Guild (Guild) commented that the simplest 
standard means of identifying and numbering images would be by 
referencing the numbers on a continuation sheet. Guild comments at 2.
    Professor Peter Jaszi (Jaszi) suggested that applicants be required 
to provide not only information about the date on which each photograph 
in a group was taken, but also a brief amount of information about what 
each photograph or sequence of photographs depicts. Jaszi comments at 
1-2. The Magazine Publishers of America and Newspaper Association of 
America (MPA/NAA) also suggested that descriptive information be 
required. MPA/NAA comments at 3. Both comments emphasized that such a 
requirement would foster a more meaningful and comprehensive public 
record.
    Professor Jaszi and MPA/NAA also suggested that use of a 
continuation sheet should be mandatory in order to provide information 
about each photograph. Jaszi comments at 1; MPA/NAA comments at 5. ASMP 
agreed that a special continuation sheet should be made available for 
group registration of photographs. ASMP comments at 2. APA asserted 
that photo claimants should be allowed to choose the form that is most 
appropriate, on a case-by-case basis, to ease burdens on photographers 
while still creating meaningful identification of works being 
registered. APA comments at 2-3. The Guild agreed that a continuation 
sheet should be available, but expressed no views on whether the 
Office's existing continuation sheet should be used or whether a 
special continuation sheet for group registration of photographs should 
be created. Guild comments at 2.
2. Should Claimants Be Required To Number the Photographs in a Group 
Consecutively (e.g., from 1 to 500), and To Indicate the Number of Each 
Photograph on or Affixed to the Individual Image of the Photograph That 
Is Deposited?
    As noted above, ASMP suggested using the file name for each 
photographic image or, in the case of contact sheets, assign a number 
to each image on the contact sheet, and coordinate the file name or 
number with the date of publication on a reference sheet. ASMP comments 
at 1-2. PPA asserted that requiring a uniform numbering system would be 
unduly burdensome for most photographers. PPA comments at 12. Other 
commenters agreed. E.g., APA comments at 3-4, Patti McConville 
Photography comments at 1. No comments supported imposition of a 
numbering requirement.
3. Should the Office Accept Deposits in Formats Other Than CD-ROM or 
DVD-ROM; Single Images; Contact Sheets; Slides With Single Images; 
Slides Each Containing Up to 36 Images; or Multiple Images on Video 
Tape? If So, What Other Formats Should Be Accepted?
    One commenter asserted that photocopies of images should also be 
accepted. ASMP comments at 1.C.3. Another commenter found the proposed 
regulations to be acceptable, but suggested that the Office should be 
prepared to accept deposits in

[[Page 37145]]

additional formats as they become available. Guild comments at 2. 
Another commenter proposed that the advanced photo system (APS) be 
used, with enhancements that permit copyright-related information about 
each photograph to be electronically encoded on the film itself. It is 
not clear whether this proposal envisioned that applicants be required 
to use this technology, but the commenter admitted that the hardware 
and systems needed to implement the proposal do not currently exist. 
Coalition for Consumers' Picture Rights comments at 7-10.
    One commenter urged the Office to return to an earlier proposal 
that would have permitted the use of descriptive identifying material 
in lieu of a deposit of actual images. PPA comments at 3-6.
    Some commenters believed the Office's proposed formats were too 
liberal. For example, one commenter questioned what function would be 
served by including an analog option such as ``a videotape clearly 
depicting each photograph'' rather than proven and cost-effective new 
technologies for digital image storage and retrieval. The same 
commenter questioned the wisdom of including ``slides containing up to 
36 images'' as a deposit option. Jaszi comments at 2. Another commenter 
criticized the inclusion of contact sheets and slides, observing that 
such deposits are difficult to search. That commenter also expressed 
concerns about the potential shelf-life of other formats, such as 
videotape. MPA/NAA comments at 5-6.
4. For Photographs Submitted on CD-ROMs or in Other Electronic Formats, 
What File Formats (e.g., JPEG, GIF, etc.) Should Be Accepted, and Why?
    One commenter asserted that claimants should be permitted to submit 
digital deposits in any commercially available file format provided the 
format is identified. APA comments at 4. Another commenter wrote that 
the Office should not limit the types of electronic formats acceptable 
for meeting the deposit requirements to a static list. It noted that 
JPEG and GIF are currently the most common formats by which images are 
stored digitally. PPA comments at 12-13. Another commenter recommended 
accepting JPEG, TIFF and PCD formats, which it claimed are the most 
popular file formats for storage used by photographers. ASMP comments 
at 3.
5. As an Alternative To Requiring a Claimant To Provide the Date of 
Publication of Each Photograph in the Group, Should the Office Consider 
Offering the Alternative of Providing a Range of Dates Over a Three-
Month Period (e.g., January 1-March 31, 2001)? What Would Be the 
Advantages and Disadvantages--to Claimants and to the Public Record--of 
Such an Approach?
    PPA and ASMP observed that requiring claimants to provide the 
precise date of publication of each photograph in a group would impose 
an unjustifiable and burdensome hardship on photographers. They 
endorsed the Office's alternate proposal that would not require an 
application to specify the date of publication of each photograph in 
the group, but would permit the application to provide a range of dates 
of publication over a period of no more than three months. See PPA 
comments at 8-10; ASMP comments at 3. APA suggested that the range of 
dates should be as minimally restrictive as possible, although a three 
month range would be acceptable. APA comments at 4-5. The Graphic 
Artists Guild (Guild) did not favor allowing a range of publication 
dates, asserting that this practice could compromise the requirements 
of 17 U.S.C. 412 that permit claims for attorneys' fees and statutory 
damages when a work has been registered within three months after 
publication. Guild comments at 3.

B. Additional Comments Submitted in Response to the May 5, 2000 Notice 
of Proposed Rulemaking

    Commenters also addressed a number of additional issues, such as 
the number of photographs that may be included in a group registration, 
whether works made for hire should be eligible for group registration, 
and whether claimants using the group registration procedure should be 
required to abide by Photo Industry Copyright Guidelines.
    1. The number of photographs that may be included in a group 
registration. The May 2000 notice proposed that a maximum of 500 
photographs could be included in a group registration. Many commenters 
objected to limiting a group registration to 500 photographs. PPA 
observed that many professional photographers take 500 images or more 
in the course of one or two days' work. PPA comments at 3, 6-8. Another 
commenter agreed, noting that it generates thousands of images per 
quarter. Patti McConville Photography comments at 1.
    2. Works made for hire. PPA objected that the proposed regulation 
could be read as being available only to single individual 
photographers, ignoring the realities of the photography business where 
many photographs are works made for hire. PPA comments at 3, 11. In 
contrast, the Graphic Artists Guild objected that the proposed 
regulation was available to works made for hire. The Guild asserted 
that the proposed amendments are intended to ease the burdens of 
registration for individual authors and noted that in other contexts, 
the Office has restricted certain benefits such as the Short Form VA to 
individual authors. Guild comments at 2.
    3. Adoption of Photo Industry Copyright Guidelines. Some commenters 
urged the Office to incorporate proposed Photo Industry Copyright 
Guidelines into the group registration regulations. These Guidelines 
were negotiated by ASMP, PPA, the Photo Marketing Association 
International (PMA), the Association of Professional Color 
Laboratories, the Professional School Photographers Association, and 
the Coalition for Consumers' Picture Rights (CCPR). PMA comments 
(Appendix). Among the guidelines are requirements that photographers 
advise customers of the photographer's ownership of copyright and give 
information on how to obtain additional copies of photographs; that 
when reasonably possible, photographers identify and mark their 
photographs to permit others to know whom to contact to obtain 
permission to copy them; that they respond promptly to requests for 
permission to copy their photographs; and that they give written notice 
to photo processors when they believe their copyrights have been 
infringed, in an effort to prevent further infringement, determine the 
cause of the alleged infringement, and permit possible resolution of 
the matter. Id.
    Representatives of photo processors, camera stores, manufacturers 
of photographic equipment and others, concerned about the possibility 
of being sued for copyright infringement by professional photographers 
for duplicating photographs in cases where they were not aware of a 
photographer's copyright, urged that the Office require photographers 
who take advantage of group registration of photographs to agree to 
follow the guidelines and consent to application of the guidelines in 
any infringement action. PMA comments at 6. Under their proposal, 
photographers who take advantage of group registration of photographs 
would be required to waive any claims for statutory damages or 
attorney's fees in cases in which the infringer acted ``innocently'' in 
accordance with the Photo Industry Guidelines. Eastman

[[Page 37146]]

Kodak Company comments at 2; PMA comments at 6 and Appendix.
    PMA argues that because the Office is not required to institute a 
group registration of photographs proposal, it has the power to require 
photographers to waive their rights to statutory damages and attorney's 
fees in the circumstances where the guidelines would deny those 
remedies. PPA comments at 6-7. PPA cites two instances in which the 
Office has established special requirements as a condition of 
registration: (1) Regulations for registration of holograms that 
require deposit not only of the hologram itself, but also of detailed 
instructions for displaying and viewing the hologram and a photograph 
or other description of the hologram (37 CFR Sec. 202.20(c)(2)(iii)); 
and (2) the Office's Federal Register notice accompanying the 
announcement of the final regulations for group registration of daily 
newsletters, 64 FR 29522 (1999), in which the Office stated that the 
group registration privilege is contingent upon the claimant meeting 
the conditions specified in the regulation. PMA comments at 7-8.
    PPA also asserted that the Office could adopt the guidelines, but 
this assertion was made in the context of PPA's plea that the Office 
accept the earlier proposal that would have permitted group 
registration without requiring deposit of the actual images of the 
works being registered. PPA comments at 1-2 & n.2. PPA noted that in 
other contexts, the Office, Congress, and the courts have cited 
industry-endorsed guidelines with the intent that they be used by the 
courts in infringement litigation, referring to the Agreement of 
Guidelines for Classroom Copying in Not-For-Profit Educational 
Institutions, adopted in H.Rep. No. 94-1467, 96th Cong., 2d Sess. At 
68-70 (1976). PPA comments at 2-3 n.2.
    4. Other opposition to the proposal. Groups representing photo 
processors, camera stores, manufacturers of photographic equipment, 
consumers and others expressed their opposition to the group 
registration proposal. Although willing to accept the proposal if 
compliance with the Photo Industry Copyright Guidelines were required 
by claimants, PMA expressed concern that without such a provision, the 
group registration proposal would make it easy for photographers to 
collect statutory damages and attorney's fees for infringement, leading 
to a flood of litigation over minor matters. PMA comments at 5. The 
Coalition for Consumers' Picture Rights (CCPR), an ad hoc organization 
of camera store owners, minilab retailers, photo processors and 
photofinishers, film and paper manufacturers, camera and lens 
manufacturers, frame and album manufacturers, photographers, and 
consumers, asserted that the proposal ``could jeopardize the successful 
photofinishing industry.'' CCPR comments at 2. The Coalition noted the 
difficulty photofinishers have in determining whether a copyright in a 
photograph is owned by someone other than the customer who brings the 
photo into the shop or, in the internet environment, transmits a photo 
in digital form to a photofinisher. CCPR comments at 2-3. CCPR asserted 
that making it easier to register photographs without building in 
safeguards for users will lead to more copyright infringement 
litigation by photographers, to the detriment of photofinishers. CCPR 
(and MPA/NAA) urged that the Office refrain from announcing final rules 
on group registration of photographs until after the Office has 
conducted its study that will examine copyright deposit in general. 
CCPR comments at 6-7; MPA/NAA comments at 6.

III. The Office's Decisions

    The Office has carefully considered the comments described in part 
II of this notice and has resolved the issues addressed in those 
comments as follows.
    1. Date of publication and continuation sheet. As is discussed 
below, the Office has decided to implement its alternative proposal 
that would permit applicants to designate a range of dates of 
publication within the three-month period immediately prior to 
registration, rather than require identification of the specific date 
of publication of each photograph in a group. Nevertheless, it is 
anticipated that many photographers will elect to register an entire 
year's worth of published photographs and to identify the specific date 
of publication of each photograph. For those who elect the latter 
alternative, the Office is persuaded by the commenters who asserted 
that a photographer should be free to use any labeling system as long 
as it meets the goal of enabling one to identify the specific date of 
publication of any photograph in the group. Accordingly, the final 
regulation provides that the date of publication of each photographic 
work within a group must be identified either on the deposited image or 
on a continuation sheet, in such a manner that for each photographic 
work in the group, the date of publication can be identified. So long 
as the applicant selects a method that clearly accomplishes this 
purpose, the application will be acceptable. For example, an applicant 
might choose to number the images, or to give each image a unique name, 
and cross-reference the number or name of each photograph on a 
continuation sheet along with the date of publication. The procedure 
suggested by ASMP appears to meet these requirements.\2\
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    \2\ Although applicants will now have a number of options for 
designating the date of publication, including the option of 
providing a range of dates within three months of registration and 
the option of indicating the date of publication on the deposited 
image, applicants should consider the advantages of indicating the 
specific date of publication of each photograph on the continuation 
sheet. Because the certificate of registration is prepared from the 
application (including the continuation sheet), a specific date of 
publication that is indicated on the application becomes part of the 
certificate of registration. The recital of the date of publication 
on the certificate becomes prima facie evidence that the identified 
photograph was published on that date. See 17 U.S.C. 410(c).
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    The Office will make available a special optional continuation 
sheet for group registration of photographs that applicants may use to 
provide information such as the date of publication of each photograph.
    The proposal to require descriptive information about each 
photograph in a group has merit, in that such descriptions would assist 
in providing a more meaningful and comprehensive public record. 
However, the Office does not require such descriptions in other 
contexts. Indeed, one can currently register an individual photograph 
without providing any descriptive information about that photograph 
(apart from a title that may provide no information about the nature of 
the photograph), resulting in a public record that sheds no light about 
the nature of the photograph. One can also currently register an 
unpublished collection of photographs, pursuant to Sec. 202.3(b)(3)(B), 
without providing any description of the subject matter of the 
photographs in the collection apart from a title that does not 
necessarily describe the works included in the collection. Indeed, 
apart from information on titles (which may or may not describe the 
subject matter of a work) and the generalized descriptions that appear 
in the ``nature of this work'' and ``nature of authorship'' spaces, a 
typical registration of any work will offer little information about 
the content of the work being registered. The Office concludes that the 
burdens that would result from requiring a description of each 
photograph in a group registration would outweigh the benefits of the 
proposed requirement.
    However, applicants are encouraged to provide descriptive 
information for each photograph, or each group of

[[Page 37147]]

related photographs. To that end, space will be set aside on the 
optional continuation sheet to permit the entry of such information.
    2. Numbering of photographs. In light of the decision not to 
require any particular labeling system to identify the date of 
publication for each photograph in a group, the Office agrees with the 
weight of comments that no numbering requirement should be imposed.
    3. Acceptable formats. The Office concludes that applicants should 
be permitted to submit photographs in any of the formats included in 
the list of acceptable formats in the May 2000 notice of proposed 
rulemaking. Although some commenters questioned the utility of options 
such as slides containing up to 36 images and videotapes depicting each 
photograph, the Office believes that providing applicants with a 
variety of options will serve the purpose of facilitating the 
registration of photographs.
    The Office also concludes that the proposal to permit submission of 
photocopies of images has merit. This conclusion is reinforced by the 
Office's recognition that the current regulation governing registration 
of contributions to collective works, which can and often do include 
photographs, permit submission of a deposit in the form of ``a 
photocopy of the contribution itself as it was published in the 
collective work'' See 37 CFR 202.20(b)(2)(iii); 202.20(c)(2)(xv). 
However, this proposal is accepted with some hesitation, because the 
quality of photocopies of photographs can vary considerably. The final 
rule provides that photocopies must ``clearly depic[t] the 
photograph,'' and photocopies that do not present clear images of the 
underlying photograph will be rejected as deposits. The final rule also 
requires that when a photograph was first published in color, a 
photocopy deposit of the photograph must also be in color. This 
requirement will assist in insuring that photocopies received as 
deposits are clear representations of the photographs being registered.
    The permitted formats are listed in Sec. 202.20(c)(2)(xx) in the 
Library of Congress's order of preference, and applicants are 
encouraged to select a format as close to the top of that list as 
possible. It should be noted, however, that compliance with the 
requirements of Sec. 202.20(c)(2)(xx) is not necessarily compliance 
with the mandatory deposit requirement of 17 U.S.C. 407. If the Library 
determines that it desires the ``best edition'' of a particular 
photograph as published in the United States for its collections, it 
may demand the deposit of that photograph in its best edition as set 
forth in 37 CFR 202.19. This is a separate legal requirement, 
independent of the deposit requirements for registration of copyright.
    Finally, the Office rejects the plea of at least one commenter to 
permit the use of descriptive identifying material in lieu of the 
actual images. 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.'' 65 FR at 26164. Deposit of the work being registered is one 
of the fundamental requirements of copyright registration, and it 
serves an important purpose. As the legislative history of the 
Copyright Act of 1976 recognizes, copies of registration deposits may 
be needed for identification of the copyrighted work in connection with 
litigation or for other purposes. See H.R. Rep. No. 94-1476, at 171 
(1976). See also Seiler v. Lucasfilm, Inc., 808 F.2d 1316, 1322 (9th 
Cir. 1986) (noting that ``possibilities for fraud would be limitless'' 
if reconstructions of claimant's original work could be submitted as 
registration deposits); Tradescape.com v. Shiraram, 77 F.Supp.2d 408, 
413-14 (S.D.N.Y. 1999) (noting that when deposit of redacted version of 
computer program is permitted, the result in infringement litigation is 
uncertainty as to whether allegedly infringed code actually is the 
subject of an existing registration). The ability of litigants to 
obtain a certified copy of a registered work that was deposited with 
the Office prior to the existence of the controversy that led to a 
lawsuit serves an important evidentiary purpose in establishing the 
identify and content of the plaintiff's work.\3\
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    \3\ That ability is, however, limited by the Office's policy on 
retention of deposits of published works. See Notice of Policy 
Decision; Policy Statement on Deposit Retention Schedule, 48 FR 
12862 (March 28, 1983).
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    It is true that, as PPA observed in its comments, current 
registration procedures permit the deposit of identifying material in 
some contexts. However, as noted in the May 2000 notice of proposed 
rulemaking, the Office intends to issue a notice of inquiry to 
reexamine the purpose of section 408 copyright deposit for all classes 
of works, and this examination may cause the Office to reconsider 
whether many or all of the circumstances in which it accepts 
identifying material are justified when the identifying material does 
not reveal the copyrightable expression for which protection is 
claimed. Prior to the conclusion of such a study, the Office will not 
initiate as far-reaching an expansion of the practice of accepting 
identifying material as that which is proposed by PPA.\4\
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    \4\ The Office rejects PPA's assertion that its insistence that 
the actual copyrighted images be deposited is arbitrary, capricious, 
and contrary to law. The statute requires that for an unpublished 
work, ``one complete copy or phonorecord'' be deposited, and that 
for a published work, ``two complete copies or phonorecords of the 
best edition'' be deposited. 17 U.S.C. 408(b)(1)&(2) (emphasis 
added). It gives the Register discretion to permit the deposit of 
identifying material instead of copies or phonorecords. 17 U.S.C. 
408(c)(1). The Register's reasoned refusal to exercise her 
discretion to depart from a statutory deposit requirement is hardly 
arbitrary, capricious or contrary to law.
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    4. File formats for deposits on CD-ROM. While the Office 
sympathizes with the comment that a deposit in digital form should be 
accepted in any commercially available file format, it is necessary to 
limit the acceptable formats to those which the computers in the 
Office's Examining Division are equipped to handle. The file formats 
specifically identified in comments were JPEG, GIF, TIFF, and PCD. The 
Office accepts the assertions by the proponents of these file formats 
that they are the formats most commonly used by photographers. 
Currently, a claimant who submits deposits of photographs in digital 
form will be required to use one of these formats, and the Office will 
ensure that the Examining Division is equipped to view deposits 
submitted in those formats. If the Office becomes aware that other file 
formats have come into common use, it will include them in the list of 
acceptable file formats and acquire the necessary equipment and/or 
software to view them.
    5. The option of providing a range of dates. In the May 2000 notice 
of proposed rulemaking, the Office sought comments on whether 
applications for group registration of photographs should be permitted 
to state a range of dates of up to three months (e.g., January 1-March 
31, 2001) in which all the photographs in the group were published, 
rather than stating specific dates of publication for each photograph. 
The Office noted that it would consider such an alternative only if it 
were persuaded that requiring specific dates of publication for each 
photograph would impose an unjustifiable and burdensome hardship on 
photographers, and that the advantages (to claimants and to the public 
record) of such an alternative would outweigh its disadvantages.

[[Page 37148]]

    As noted above, a large number of commenters endorsed this 
alternative, noting the considerable difficulty and burden of 
identifying specific dates of publication for each photograph in a 
group of photos published over a period of as much as a year. The 
Office recognizes the burden and believes that some relaxation of the 
requirement that the date of publication be specified is justified. On 
the other hand, a key benefit of copyright registration is the 
availability of statutory damages and attorney's fees for a plaintiff 
in a copyright infringement suits who has registered a work within 
three months after first publication of the work. 17 U.S.C. 412(2). 
Moreover, 17 U.S.C. 409(7) requires that an application for copyright 
registration include the date and nation of first publication.\5\
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    \5\ In recognition of the fact that an author may not always 
know the precise date of publication of a work, it is permissible to 
qualify the date stated on the application; e.g., ``approximately,'' 
``on or about,'' ``circa,'' ``no later than,'' or ``no earlier 
than.'' Compendium of Copyright Office Practices, Compendium II, 
Sec. 910.02 (1984).
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    The Office believes that the requirements of section 409 and 412, 
and the needs of photographer claimants, can best be reconciled by 
offering the option to designate a range of dates of publication for 
all the photographs in a group, rather than requiring the specific date 
of publication for each photograph, so long as all of the photographs 
were first published within three months of the effective date of 
registration, i.e., the date on which an acceptable application, an 
acceptable deposit, and the applicable fee are received in the 
Copyright Office. Thus, a correctly completed application for group 
registration received (with the applicable fee and acceptable deposit) 
on March 31, 2002 could include photographs first published as early as 
January 1, 2002 and as late as March 31, 2002, and the date of 
publication could be entered in space 3 of the Form VA application as 
``January 1-March 31, 2002.'' \6\ Because all of the photographs would 
have been first published within three months of the effective date of 
registration, the applicant would legitimately obtain the benefit of 
section 412(2) without having to identify, in the application, the 
precise date of publication of each photograph.\7\
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    \6\ As a practical matter, a registration using this option 
might have to consist of photographs first published over a period 
of slightly less than three months, unless the applicant is able to 
deliver the application, fee and deposit to the Office on the same 
day as the day of publication of the last of the photographs in the 
group.
    \7\ The certificate of registration would be prima facie 
evidence that each of the photographs included in the group was 
first published between January 1 and March 31, inclusive. 17 U.S.C. 
410(c). Of course, that conclusion could be rebutted by evidence 
that a specific photograph was not first published within that time 
period.
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    6. The number of photographs that may be included in a group 
registration. In light of the comments from photographers observing 
that the proposed 500-photo limit is too low, the Office has reexamined 
its reasons for proposing such a limit. The Office has concluded that 
the administrative burdens of processing a group registration of a 
large number of photos in excess of 500 would be acceptable. Therefore, 
the final rule contains no limitation on the number of photographs that 
may be included in a group.
    7. Works made for hire. The final rule clarifies that works made 
for hire may be included in a group registration of published 
photographs, but does not permit an employer for hire to include works 
by a number of different photographers in the same group registration. 
Rather, the rule provides that ``[t]he photographer who photographed 
each of the photographic works submitted for registration as part of 
the group must be the same person.'' Thus, a photographic studio that 
employs a number of photographers under work-for-hire agreements may 
register those photographers' works in group registrations, but must 
submit separate registrations for the photos taken by each 
photographer. The Office recognizes that many photographers work as 
employees of photographic studios, and that their employers--many of 
them small businesses--experience the same difficulties that individual 
photographers experience in registering their photographs. However, the 
Office is also mindful that its power to fashion group registrations is 
limited to cases involving ``groups of related works.'' 17 U.S.C. 
408(c)(1). Some of the commenters objecting to this group registration 
proposal contended that it lacks the type of nexus required by the 
Copyright Act. See, e.g., MPA/NAA comments at 3. The Office disagrees 
with that objection, but it recognizes that there must nevertheless be 
a relationship between all the photographs in a group. The Office 
believes that limiting the group to photographs (1) taken by the same 
individual and (2) first published within the same year, satisfies that 
requirement. This conclusion finds support in the statutory and 
regulatory requirements for group registration of contributions to 
periodicals, a form of group registration similar in many respects to 
the new group registration of photographs. The Copyright Act limits the 
availability of group registration of contributions to periodicals to a 
group of works by the same individual author, and the Office's 
regulations implement this statutory requirement by providing that all 
the works in the group must be by the same author and that the author 
of each work must be an individual, and not an employer or other person 
for whom the work was made for hire. See 17 U.S.C. 408(c)(2); 37 CFR 
Sec. 202.3(b)(7); see also 17 U.S.C. 408(c)(3). The legislative history 
of the 1976 Copyright Act also supports such a limitation, noting that 
group registration may be desirable for ``a group of photographs by one 
photographer.'' House Report at 154 (emphasis added).
    When a group registration consists of works made for hire, the 
claimant will be required to designate as the author, in space 2 of the 
Form VA, the name of the employer for hire as well as the name of the 
photographer who took the photograph (e.g., ``XYZ Corporation, employer 
for hire of John Doe'').
    8. Photo industry guidelines. The Office does not believe that it 
has the authority to impose those guidelines on photographers who 
register their copyrights using the group registration regulation, nor 
does it believe the incorporation of the guidelines is advisable. 
Although representatives of photographers, photofinishers and users 
agreed upon the Photo Industry Guidelines several years ago, that 
agreement was in the context of a proposal that would have permitted 
photographers to register groups of photographs without depositing the 
images of the works. The Office has declined to permit such a liberal 
registration scheme. We do not infer from PPA's endorsement of the 
guidelines in the former context that photographers would accept 
incorporation of the guidelines into the more modest group registration 
proposal adopted today.
    Whatever the merits might have been when the guidelines were being 
considered in the context of a more liberal group registration scheme, 
the Office does not believe that requiring photographers to surrender 
valuable rights enjoyed by other copyright owners is justified in the 
context of the more modest group registration proposal adopted in the 
final regulation. Photographers have long been able to register 
collections of their unpublished photographs under conditions similar 
to those adopted today for published photographs, and have not been 
required to waive their rights to statutory damages and attorneys fees 
in

[[Page 37149]]

order to do so. Photographers have also been able to register groups of 
published photographs so long as those photographs were published as 
contributions to periodicals, also without being required to waive 
those rights. The proposal adopted today is not a radical departure 
from those already-existing group registrations, and the Office does 
not believe that the case has been made for incorporating the 
guidelines into this particular group registration regulation.
    On the merits, the arguments made in support of the Office's power 
to require photographers to comply with the guidelines in order to 
participate in the group registration program are unconvincing. The 
existing registration requirements cited by PMA in support of the 
guideline proposal related to the nature of the deposit or the 
application, and not to other legal obligations having nothing to do 
with registration. The requirement of additional identifying material 
to accompany applications to register holograms exists simply to assist 
the Office's examiners in their examination of the deposits. The 
Office's statement when it adopted regulations on group registration of 
daily newsletters that ``[t]he group registration privilege is 
contingent upon the claimant meeting the conditions specified in the 
regulation,'' 64 FR 2922 (1999), is a truism. None of the conditions in 
that regulation required claimants to comply with any industry 
guidelines or waive any rights; rather, all of the conditions related 
to registration and deposit. The guidelines on classroom copying cited 
by PPA have not been incorporated into any registration regulations; 
rather, Congress simply endorsed those guidelines, in legislative 
history, as offering guidance on fair use in the classroom.
    The Office is unconvinced that it has the power to require 
copyright owners to waive statutory rights they have against infringers 
in order to take advantage of a registration option designed to 
facilitate the registration of their works. Even if the Office had such 
power, it does not appear that this would be a wise precedent to set. 
The purpose of the group registration regulation is to make it possible 
for photographers to obtain the benefits conferred by registration, not 
to require them to waive those benefits.
    9. The threat of litigation. The Office understands the fears of 
photofinishers and others that by making it easier for photographers to 
register their works, the Office is also increasing the risk that those 
who process film and make copies of photographs will be sued for 
copyright infringement. With that risk comes the prospect of statutory 
damages and attorney's fee awards. But the concerns expressed by these 
opponents of the regulation really relate not to the group registration 
option being adopted today, but to longstanding provisions of copyright 
law that permit awards of statutory damages and attorney's fees to 
prevailing plaintiffs who have made timely registration of their works. 
A photofinisher who is truly an ``innocent'' infringer and who had no 
reason to believe that he was infringing probably has little to fear 
from this regulation. Courts are not likely to award attorney's fees to 
such innocent infringers, and the minimum award of statutory damages, 
even against a defendant who is not an innocent infringer, is very 
modest. Litigation can be burdensome and expensive, but those burdens 
and expenses are borne by plaintiffs as well as defendants. The Office 
has no reason to believe that photographers will wish to bear the 
burdens and expenses of litigation to pursue claims against photo 
finishers who have acted reasonably and in good faith, when the costs 
of such litigation are likely to outweigh any recovery. But 
photographers, like all other copyright owners, should be entitled to 
enforce their copyrights. The Office rejects any suggestion that a 
regulation that enables photographers to register their copyrights is 
unjustified because it makes it easier for them to assert their rights.

IV. Conclusion

    The final regulation announced today liberalizes requirements for 
registration of photographs by permitting photographers to register 
their published photographs in groups, with a variety of deposit 
options (all of which require deposit of the actual images of the works 
being registered). In practice, it represents an incremental expansion 
of current options available to photographers (such as group 
registration of contributions to collective works and registration of 
unpublished collections). It also expands the list of options for 
deposit for photographs registered under the existing regulation for 
registration of unpublished collections. The Copyright Office believes 
that this regulation will make it easier for photographers to register 
their works, thereby populating the public record with many more works 
in a field where registration has been difficult. The Office has 
attempted to strike the appropriate balance between those who urge 
adoption of a group registration scheme that would leave the public 
record bereft of any reliable indication of what works are actually 
included in a registration, and those who urge that liberalizing 
registration procedures for photographers will open the floodgates of 
litigation against those who unwittingly infringe copyrights in 
photographs.

Regulatory Flexibility Act

    Although the Copyright Office, located in the Library of Congress 
and part of the legislative branch, is not an ``agency'' subject to the 
Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of 
Copyrights has considered the effect of a proposed amendment on small 
businesses. The purpose of this regulation is to facilitate the ability 
of photographers, who usually constitute small businesses, to register 
the copyrights in their works, by simplifying the requirements for 
registration.

List of Subjects in 37 CFR Part 202

    Claims, Copyright.

Final Regulation

    For the reasons set forth in the preamble, the Copyright Office 
amends 37 CFR part 202 as follows:

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, 702.

    2. 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 published photographs. Pursuant to the 
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights 
will accept a single application (on Form VA), deposit and filing fee 
for registration of a group of photographs if the following conditions 
are met:
    (i) The copyright claimant in all of the photographs must be the 
same.
    (ii) The photographer who photographed each of the photographs 
submitted for registration as part of the group must be the same 
person.
    (iii) The photographs in the group must have been published within 
the same calendar year.
    (iv) If the photographs in a group were all published on the same 
date, the date of publication must be identified in space 3b of the 
application. If the photographs in a group were not all published on 
the same date, the range

[[Page 37150]]

of dates of publication (e.g., January 1-December 31, 2001) must be 
provided in space 3b of the application, and the date of publication of 
each photograph within the group must be identified either on the 
deposited image or on a continuation sheet, in such a manner that for 
each photograph in the group, the date of publication can be 
identified. A special continuation sheet for registration of a group of 
photographs shall be made available by the Copyright Office.
    (v) If each photograph within the group was first published within 
three months before the date on which an acceptable application, an 
acceptable deposit, and the applicable fee are received in the 
Copyright Office, the applicant may, in lieu of the procedure set forth 
in paragraph (b)(9)(iv) of this section, simply state the range of 
dates of publication (e.g., February 15-May 15, 2001) in space 3b of 
the application, without specifically identifying the date of 
publication of each photograph in the group either on the deposited 
image or on a continuation sheet.
    (vi) The deposit(s) and application must be accompanied by the fee 
set forth in Sec. 201.3(c) of this chapter for a basic registration.
    (vii) The applicant must state ``Group Registration/Photos'' and 
state the approximate number of photographs included in the group in 
space 1 of the application Form VA under the heading ``Previous or 
Alternative Titles'' (e.g., ``Group Registration/Photos; app. 450 
photographs'').
    (viii) If the photographs in the group are works made for hire, the 
applicant must note, as part of the applicant's entry in space 2 of the 
application Form VA for ``Name of Author,'' both the name of the 
employer for hire and the name of the photographer who photographed the 
works in the group (e.g., ``XYZ Corporation, employer for hire of John 
Doe'').
    (ix) As an alternative to the best edition of the work, one copy of 
each photograph shall be submitted in one of the formats set forth in 
Sec. 202.20(c)(2)(xx).
* * * * *
    3. 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) Photographs: group registration. For groups of photographs 
registered with one application under Secs. 202.3(b)(3)(i)(B) 
(unpublished collections) or 202.3(b)(9) (group registration of 
published photographs), photographs must be deposited in one of the 
following formats (listed in the Library's order of preference):
    (A) Digital form on one or more CD-ROMs (including CD-RW's) or DVD-
ROMs, in one of the following formats: JPEG, GIF, TIFF, or PCD;
    (B) Unmounted prints measuring at least 3 inches by 3 inches (not 
to exceed 20 inches by 24 inches);
    (C) Contact sheets;
    (D) Slides, each with a single image;
    (E) A format in which the photograph has been published (e.g., 
clippings from newspapers or magazines);
    (F) A photocopy of each of the photographs included in the group, 
clearly depicting the photograph, provided that if registration is made 
pursuant to Sec. 202.3(b)(9) for group registration of photographs, the 
photocopy must be either a photocopy of an unmounted print measuring at 
least 3 inches by 3 inches (not to exceed 20 inches by 24 inches) or a 
photocopy of the photograph in a format in which it has been published, 
and if the photograph was published as a color photograph, the 
photocopy must be a color photocopy;
    (G) Slides, each containing up to 36 images; or
    (H) A videotape clearly depicting each photograph.
* * * * *

    Dated: July 9, 2001.
Marybeth Peters,
Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 01-17864 Filed 7-16-01; 8:45 am]
BILLING CODE 1410-30-P