[Federal Register Volume 83, Number 12 (Thursday, January 18, 2018)]
[Rules and Regulations]
[Pages 2542-2549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00687]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Parts 201, 202

[Docket No. 2016-10]


Group Registration of Photographs

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: The U.S. Copyright Office is modernizing its practices to 
increase the efficiency of the group registration option for 
photographs. This final rule modifies the procedure for registering 
groups of published photographs (GRPPH), and establishes a similar 
procedure for registering groups of unpublished photographs (GRUPH). 
Applicants will be required to use a new online application 
specifically designed for each option, instead of using a paper 
application, and will be allowed to include up to 750 photographs in 
each claim. The ``unpublished collection'' option (which allows an 
unlimited number of photographs to be registered with one application), 
and the ``pilot program'' (which allows an unlimited number of 
published photographs to be registered with the application designed 
for one work) will be eliminated. The corresponding ``pilot program'' 
for photographic databases will remain in effect for the time being. 
The final rule modernizes the deposit requirements by requiring 
applicants to submit their photographs in a digital format when using 
GRPPH, GRUPH, or the pilot program for photographic databases, along 
with a separate document containing a list of the titles and file names 
for each photograph. The final rule revises the eligibility 
requirements for GRPPH and GRUPH by providing that all the photographs 
must be created by the same ``author'' (a term that includes an 
employer or other person for whom a work is made for hire), and 
clarifying that they do not need to be created by the same photographer 
or published within the same country. It also confirms that a group 
registration issued under GRPHH or GRUPH covers each photograph in the 
group, each photograph is registered as a separate work, and the group 
as a whole is not considered a compilation or a collective work.

DATES: Effective February 20, 2018.

FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register 
of Copyrights and Director of Registration Policy and Practice; Sarang 
Vijay Damle, General Counsel and Associate Register of Copyrights; Erik 
Bertin, Deputy Director of Registration Policy and Practice by 
telephone at 202-707-8040 or by email at <a href="/cdn-cgi/l/email-protection#582a33392b1834373b763f372e"><span class="__cf_email__" data-cfemail="4c3e272d3f0c20232f622b233a">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#f78493969ab79b9894d9909881"><span class="__cf_email__" data-cfemail="fa899e9b97ba969599d49d958c">[email protected]</span></a>, 
and <a href="/cdn-cgi/l/email-protection#0c696e697e7865624c60636f226b637a"><span class="__cf_email__" data-cfemail="7d181f180f0914133d11121e531a120b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Copyright Act gives the Register of Copyrights (the 
``Register'') the discretion to allow groups of related works to be 
registered with one application and one filing fee. See 17 U.S.C. 
408(c)(1). Congress cited ``a group of photographs by one 
photographer'' as an example of a ``group of related works'' that would 
be suitable for a group registration. H.R. Rep. No. 94-1476, at 154 
(1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, 
at 136 (1975). When large numbers of photographs are grouped together 
in one application, however, information about the individual works may 
not be adequately captured. Group registration options therefore 
require careful balancing of the need for an accurate public record and 
the need for an efficient method of facilitating the examination of 
those works.
    On December 1, 2016, the Copyright Office (the ``Office'') 
published a Notice of Proposed Rulemaking (``NPRM'') setting forth 
proposed amendments to the current regulation governing the group 
registration option for published

[[Page 2543]]

photographs (``GRPPH''), and proposing to create a new group 
registration option for unpublished photographs (``GRUPH''). See 81 FR 
86643 (Dec. 1, 2016).
    The NPRM described six major proposals. First, the proposed rule 
would require applicants to use a new online application specifically 
designed for registering a group of published photographs or a group of 
unpublished photographs, in lieu of using a paper application. Second, 
it would eliminate the ``pilot program'' that allows applicants to 
register an unlimited number of published photographs with the online 
application designed for registering one work.\1\ It also proposed to 
eliminate the registration accommodation that allows applicants to 
register an unlimited number of photographs as an ``unpublished 
collection.'' \2\ Third, the proposed rule would limit the number of 
photographs that may be included within each application to no more 
than 750 photographs. Fourth, the NPRM provided that all of the 
photographs must be created by the same photographer (similar to the 
requirement that applies under the current regulation governing GRPPH), 
and further provided that the photographs must be published within the 
same nation. Fifth, the proposed rule would modify the deposit 
requirement for GRPPH, GRUPH, and photographic databases by requiring 
applicants to submit (i) a digital copy of each photograph,\3\ and (ii) 
a separate document containing a list of the titles and file names for 
each photograph. Finally, the NPRM confirmed that when a group of 
photographs is registered under GRPHH or GRUPH, the registration covers 
each photograph, each photograph is registered as a separate work, and 
``the group as a whole is not considered a compilation, [or] a 
collective work . . . under sections 101, 103(b), or 504(c)(1) of the 
statute.'' \4\
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    \1\ As noted in the NPRM, the Office is not proposing to 
eliminate the corresponding ``pilot program'' for photographic 
databases. 81 FR at 86643, 86649 n.21. Applicants may continue to 
register these types of databases with the online application at 
least for the time being. 37 CFR 202.3(b)(5)(ii)(A).
    \2\ The Office recently issued a separate notice of proposed 
rulemaking that proposed to eliminate the ``unpublished collection'' 
option and replace it with a new group registration option for 
unpublished works (GRUW). Briefly stated, the GRUW option would 
allow applicants to register up to five unpublished works with one 
application and one filing fee (with certain limited exceptions for 
claims involving sound recordings). See 82 FR 47415, 47417 (Oct. 12, 
2017). To be clear, the GRUW option is not intended to replace the 
GRUPH option described in today's final rule. Photographers will be 
able to register up to 750 photographs with the GRUPH option. See 81 
FR at 86653; 82 FR 52258 (Nov. 13, 2017).
    \3\ 17 U.S.C. 408(b), (c).
    \4\ The NPRM clarified that this same presumption does not apply 
when photographs are registered as part of a photographic database 
under 37 CFR 202.3(b)(5), because a database is, by definition, a 
compilation. See 81 FR at 86653-54.
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    The Office received comments from several individuals, the 
Copyright Alliance,\5\ and the Coalition of Visual Artists,\6\ which 
consists of ten separate organizations that represent photographers, 
illustrators, designers, and other visual artists (``CVA'').\7\ The 
commenters generally supported the Office's proposal to eliminate the 
paper application and require applicants to submit their claims using 
an online application specifically designed for GRPPH and GRUPH.\8\ 
They welcomed the proposal to eliminate the ``pilot program'' for 
published photographs, and to replace the ``unpublished collections'' 
accommodation with a new group registration option for unpublished 
photographs.\9\ They also agreed that photographers should be entitled 
to claim a separate award of statutory damages for each photograph when 
they register their works under the GRPPH or GRUPH option.
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    \5\ The Copyright Alliance endorsed the views expressed by the 
Coalition of Visual Artists, in addition to submitting its own 
comments.
    \6\ The Coalition is comprised of the following organizations: 
The American Photographic Artists (APA), American Society of Media 
Photographers (ASMP), Digital Media Licensing Association (DMLA), 
Graphic Artists Guild (GAG), North American Nature Photography 
Association (NANPA), National Press Photographers Association 
(NPPA), Professional Photographers of America (PPA), the PLUS 
Coalition (PLUS), Schaftel & Schmelzer, and Doniger/Burroughs.
    \7\ The Office received comments from five individuals, 
including three photographers. All of the comments submitted in 
response to the NPRM can be found on the Copyright Office's website 
at https://www.copyright.gov/rulemaking/group-photographs/.
    \8\ See Copyright Alliance Comment at 2; CVA Comment at 6. The 
Office also issued a separate NPRM that proposed a similar online-
filing requirement for seeking a supplementary registration. See 81 
FR 86656 (Dec. 1, 2016). Under the rule proposed in that proceeding, 
most applicants would be required to file an online application to 
correct or amplify the information in an existing registration. The 
Office explained that this same online-filing requirement would 
apply when applicants seek to correct or amplify the information in 
a registration for a group of photographs or a photographic 
database. See 81 FR at 86648. The CVA expressed some concern about 
this proposal. CVA Comment at 10-15. The Office previously addressed 
those comments when it issued a final rule in the rulemaking on 
supplementary registration. See 82 FR at 27426.
    \9\ See Copyright Alliance Comment at 1-2; CVA Comment at 4.
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    Nearly all of the commenters objected to the proposed limit on the 
number of photographs that may be included in each claim. Some 
commenters said it would be difficult to determine if a particular 
photograph should be registered as a published or unpublished work. 
Some expressed concern that all of the photographs would have to be 
created by the same photographer and published in the same nation. 
Others expressed concern about the obligation to submit digital 
deposits. Finally, one commenter suggested that photographers should be 
entitled to seek the same legal remedies, regardless of whether they 
register their works using GRPPH, GRUPH, or the pilot program for 
photographic databases.
    Having reviewed and carefully considered the comments, the Office 
now issues a final rule that closely follows the proposed rule, with 
some alterations based on these comments, which are discussed in more 
detail below.\10\
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    \10\ The final rule makes a few technical amendments to the 
proposed rule that match amendments that were recently made to 
Sec. Sec.  202.3 and 202.4. See 82 FR 29410, 82 FR 52224 (Nov. 13, 
2017).
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II. Discussion of Comments

A. Online Application and Digital Deposits

    When this final rule goes into effect, applicants will be required 
to use the online applications designated for GRPPH and GRUPH. If an 
applicant attempts to use a paper application, the Office will refuse 
to register the claim. Applicants will be required to submit a digital 
copy of each photograph,\11\ either by uploading the photographs to the 
electronic registration system or by sending them to the Office on a 
physical storage device, such as a flash drive, CD-R, or DVD-R.\12\ In 
addition, applicants will be required to submit a separate document 
containing a sequentially numbered list that identifies the title and 
file name--and in the case of published photographs, the month and year 
of publication--for each photograph in the group.
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    \11\ The NPRM stated that applicants would be able to submit 
their photographs in the same formats listed in the current 
regulation, namely, JPEG, GIF, TIFF, or PCD. 81 FR at 86651; 37 CFR 
202.20(c)(2)(xx). Although the CVA supported this proposal, the 
Office did not include the PCD format in the final rule, because the 
electronic registration system will not accept these types of files. 
See www.copyright.gov/eco/help-file-types.html.
    \12\ The CVA offered some suggestions for standardizing the 
size, dimension, resolution, and compression of each image. CVA 
Comment at 35. The Office did not include these suggestions in the 
final rule, because the electronic registration system should be 
able to accept any digital image, as long as it is submitted in an 
acceptable file format and the file size does not exceed 500MB.
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    The Copyright Alliance supported this proposal, and predicted that 
online filing would ``facilitate economy and efficiency.'' Copyright 
Alliance

[[Page 2544]]

Comment at 2. The CVA agreed that ``[d]elivering images via the 
internet has become the norm for the majority of photographers and 
other visual artists,'' and that ``it is reasonable to require visual 
creators to submit deposit images in digital format.'' CVA Comment at 
6, 35. The CVA also agreed that uploading a list containing title and 
publication information would be preferable to the pilot program where 
applicants are expected to enter each title in the application one by 
one. CVA Comment at 34.
    The CVA acknowledged that photographers who use traditional film 
often ``reproduce or scan'' their images and ``deliver their work via 
electronic means.'' CVA Comment at 6. The CVA also acknowledged that 
there are fee-based services available for photographers who need help 
completing the online application and submitting a digital deposit. CVA 
Comment at 6. However, the CVA and the Copyright Alliance expressed 
concern that some of these creators may have ``vast archives'' of 
photographs fixed in ``traditional print media,'' and they encouraged 
the Office to maintain the paper application for two-years to give 
these creators time to ``catalog, archive, and register their works.'' 
Copyright Alliance Comment at 2; CVA Comment at 7.
    The Office recently issued a final rule for group registration of 
contributions to periodicals that addressed similar concerns. See 82 FR 
at 29412. As in that rule, a specific provision is being added to the 
regulations making clear that in an exceptional case, if photographers 
are unable to submit a digital copy of their works, they may request 
special relief and submit an actual copy of each photograph or other 
identifying material in lieu of a digital file. 37 CFR 
202.20(d)(1)(iii)-(iv).
    In addition, the Office is developing several new resources to ease 
the transition to the online filing requirement. The Office will 
prepare an online tutorial that explains how to use the new 
applications, and ``help text'' within the applications themselves that 
will provide answers to frequently asked questions. The Office will 
update the sections of the Compendium of U.S. Copyright Office 
Practices, Third Edition (``Compendium'') that discuss the Office's 
practices and procedures for group registration. The Office also 
intends to issue a new circular that will provide a general 
introduction to GRPPH and GRUPH. And as noted in the NPRM, the Office 
will contact each applicant that participated in the existing pilot 
program and notify them that this program has been replaced with a new 
procedure. 81 FR at 86647.

B. Number of Photographs That May Be Included in the Group

    The NPRM proposed to limit the number of works that may be included 
in each submission to no more than 750 photographs. This would 
represent a change in policy. Currently applicants may submit an 
unlimited number of photographs if they register their works as an 
unpublished collection, or if they use the pilot program for published 
photographs. By contrast, if they use a paper application submitted on 
Form VA and Form GR/PPh/CON, they may include no more than 750 
photographs in each claim.
    The Copyright Alliance, the CVA, and three individuals objected to 
this proposal. They commented that the limit would be burdensome, 
because many photographers take thousands of photographs in a single 
day.\13\ They commented that photographers would have to pay more fees 
to register the same number of photographs as before, and that they 
would be unable to pass these additional fees on to their clients.\14\ 
Before imposing a limit on the number of photographs that may be 
registered under GRPPH or GRUPH, the commenters encouraged the Office 
to monitor the actual cost of examining these claims to determine if 
there is a substantial increase in the Office's workload. CVA Comment 
at 17.
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    \13\ The CVA commented that the 750 limit is ``unnecessary,'' 
``unworkable, ``contrary to the way most photographers'' work, and 
``an arbitrary impediment to registering works as part of a visual 
artist's nature workflow.'' CVA Comment at 16. Photographer Eric 
Bowles commented that the proposed limit would be ``completely 
unsuitable for event photographers, wedding photographers, sports 
photographers, or nature photographers,'' because they typically 
take ``1000-2000 photos or more on a regular basis in a single 
day.'' Eric Bowles Comment.
    \14\ Under the current pilot program for published photographs, 
the CVA commented that photographers may register 7500 photographs 
for $55. Under the proposed rule, the CVA commented that 
photographers would have to file 10 applications to register the 
same number of works at the ``prohibitive cost'' of $550. CVA 
Comment at 16.
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    After carefully reviewing the comments and weighing the issues 
involved, the Office has decided to adopt the 750 limit proposed in the 
NPRM. As mentioned above, the Office imposes the same limit when 
applicants use Form VA and Form GR/PPh/CON. That requirement has been 
in place since 2005. 70 FR 15587, 15588 (Mar. 28, 2005). Since the 
Office introduced the pilot program for published photographs in 2012, 
the Office has monitored the cost of examining claims submitted through 
the electronic registration system. Based on this experience, the 
Office has concluded that 750 is a reasonable limit for GRPPH and GRUPH 
given its current staffing levels, the current filing fee for these 
group registration options, and the technical capabilities of the 
current system.\15\
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    \15\ To be clear, the 750 limit adopted in this final rule only 
applies to claims submitted under the group registration options for 
GRPPH and GRUPH. It does not apply to the pilot program for 
photographic databases. Applicants may continue to register an 
unlimited number of published photographs under this option, at 
least for the time being. But the Office intends to revisit this 
issue in a separate rulemaking or as part of its upcoming fee study. 
The Office notes that at least one database provider registered 
57,040 photographs between 2012 and 2016. According to the Digital 
Media Licensing Association (DMLA), this company filed 29 
applications during this four-year period, and each submission 
contained an average of 1966 photographs. If the Office imposed a 
750 limit on the pilot program for photographic databases, the DMLA 
stated that this company would have filed another 48 applications 
during this same period. CVA Comment at 41. The Office recognizes 
that this would require additional filing fees, and that those fees 
would have amounted to $660 per year. That is less than what the 
Office currently charges for expedited handling for one application 
under the current fee structure. And it represents a significant 
bargain for the privilege of registering nearly 60,000 photographs 
with 77 applications, instead of preparing a separate submission for 
each work.
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    When the system is functioning properly, it takes approximately 15 
to 30 minutes to examine a claim involving 750 photographs or fewer. By 
contrast, a claim involving more than 750 photographs typically 
requires an hour or more to complete. Applicants often fail to provide 
publication dates, they fail to list the dates in chronological order, 
or the dates provided in the application do not match the dates given 
in the deposit. If the applicant submits each photograph as an 
individual file, instead of uploading them in a .zip file, the examiner 
must click separate links to open each photograph. If any of the files 
are corrupt, the examiner must write to the applicant to request a new 
submission. The increasing work associated with these claims has had an 
adverse effect on the timeframe for examination of other types of works 
within the Visual Arts Division.
    There also may be problems once the claim has been approved. The 
title field in the Office's public database will not accept more than 
999 characters, but there is no corresponding limit in the registration 
application. When applicants submit more than 750 photographs, the 
information in the title files often exceeds these character limits. 
When this occurs, the Office must review each record one by one to 
identify the registration that was rejected by the system. Then the

[[Page 2545]]

examiner must contact the applicant to request permission to amend the 
title field, he or she must update the record, and issue a new 
certificate.
    Moreover, when applicants upload thousands of photos to the 
electronic registration system, it strains the system as a whole. This 
has an adverse effect on other applicants, because it delays the 
receipt of their submissions and it prevents the Office from issuing an 
email acknowledging the receipt of those claims. Many applicants then 
contact the Office's help desk to confirm that their submission was 
received, which places additional strains on the Office's limited 
resources.
    Registering 750 photographs with the same application and the same 
filing fee represents a significant value and provides significant 
legal benefits. An applicant who submits the maximum number of 
photographs effectively would pay $0.07 to register each work under the 
current fee structure. As discussed below, the Office will examine each 
photograph in the group, and if the claim is approved, the registration 
covers each photograph and each photograph is registered as a separate 
work. Thus, if the photographs are subsequently infringed, the 
copyright owner should be entitled to seek a separate award of 
statutory damages for each individual photograph. See 17 U.S.C. 
504(c)(1) (authorizing a separate award of statutory damages ``with 
respect to any one work'').
    The Visual Arts Division estimates that 75% to 80% of the 
applicants who register their works using the pilot program include 
fewer than 750 photographs in each claim. Thus, the final rule will not 
have an adverse effect on the vast majority of applicants. The Office 
recognizes that some applicants routinely include more than 750 works 
in each claim, and going forward, these applicants will need to file 
multiple applications instead of submitting all of their photographs 
with the same application. But it is important to recognize that the 
final rule does not impose any limit on the number of applications that 
may be submitted at a given time.
    The CVA surveyed 1,744 photographers and asked them to identify the 
average number of photographs that they take in a single day and over 
the course of a single month. The vast majority of the respondents--
70%--reported that they take fewer than 750 photos on an average day, 
while another 17% reported that they take between 751 and 1,500 photos 
on an average day. This presumably represents the average rate for a 
daily photo shoot, but it seems unlikely that the average photographer 
would create this many images on every day of the month. The CVA's 
survey supports this assumption. The results indicate that during an 
average month nearly half of the respondents--47%--would be able to 
register all the photos with four applications or fewer, and during a 
slow month, the majority of the respondents--61%--would be able to 
register all of their photos with one submission.
    The CVA encouraged the Office to expand the scope of the group 
registration option by developing a tiered filing fee based on the 
number of photographs included within each claim, or a sliding-scale 
subscription model that would let photographers register an unlimited 
number of photographs with an annual, semi-annual, or quarterly filing 
fee. CVA Comment at 17. The Copyright Alliance and another individual 
expressed similar views. Copyright Alliance Comment at 3; Brian Powell 
Comment.
    The Office welcomes these suggestions. But unfortunately, the 
current registration system is not capable of supporting this type of 
fee structure.
    The Office, however, is beginning preparations for the initial 
development of its next generation registration system,\16\ and will 
take the commenters' suggestions into account in developing the 
business requirements for the new system. In the near future, the 
Office will be seeking additional comments and conducting extensive 
outreach to gather additional suggestions and recommendations for the 
new system.
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    \16\ See generally Modified U.S. Copyright Office Provisional IT 
Modernization Plan (Sept. 5, 2017), available at https://www.copyright.gov/reports/itplan/.
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C. Distinguishing Between Published and Unpublished Photographs

    Under the rule proposed in the NPRM, applicants would be able to 
register a group of unpublished photographs or a group of published 
photographs, but they would not be able to combine published and 
unpublished photographs in the same claim. See 81 FR at 86650. After 
considering the comments, the Office has decided to maintain this 
requirement in the final rule.
    The CVA commented that it is difficult to separate published and 
unpublished photographs, in part, because photographers do not know if 
or when their images are published after they have been sent to a 
particular client. CVA Comment at 29. The Copyright Alliance expressed 
similar concerns. Copyright Alliance Comment at 3.
    At the same time, however, the CVA and the Copyright Alliance 
acknowledged that the Copyright Act requires applicants to separately 
identify published and unpublished works for purposes of registration, 
and that this requirement cannot be changed without amending the law. 
CVA Comment at 29, 59; Copyright Alliance Comment at 3. Moreover, this 
distinction is firmly embedded in the current electronic registration 
system and the Office's internal processes. For example, when the 
Office issues a certificate of registration, the prefix assigned to the 
certificate begins with the letters VA if the work is published, and it 
begins with the letters VAu if the work is unpublished. If an applicant 
attempted to combine published and unpublished works in the same claim, 
the resulting registration number would be misleading. The Office may 
revisit this issue when it develops the business requirements for its 
new registration system, but for the time being, it is not feasible to 
ignore these distinctions within the context of the current system.
    The CVA also commented that the photographers who participated in 
its survey would prefer to register all of the photographs that they 
create for a particular job, project, or client with the same 
application, regardless of whether those photographs are published or 
unpublished. CVA Comment at 31, 48-49. The final rule provides that 
flexibility. When registering a group of photographs under GRPPH or 
GRUPH, applicants will be asked to provide a title for the group as a 
whole. If a photographer wants to register the works he or she created 
for a particular client, the group title provides a convenient means 
for adding that information to the record. If a photographer needs to 
file separate applications for his or her published and unpublished 
photographs, the applicant may assign the same title to each 
application followed by the phrase ``Group 1 of 3,'' ``Group 2 of 3,'' 
and so on.
    The CVA acknowledged that photographers should be able to determine 
if their photographs are published or unpublished if they are given 
proper guidance. CVA Comment at 31. The CVA and the Copyright Alliance 
also acknowledged that the Compendium provides useful information and 
asked the Office to make this document accessible from within the 
electronic registration system. CVA Comment at 29; Copyright Alliance 
at 3. As mentioned above, the

[[Page 2546]]

Office intends to update the sections of the Compendium that discuss 
this group registration option, and it intends to add examples to 
explain the difference between published and unpublished photographs. 
In addition, the Office intends to prepare a new circular that 
summarizes the various options for registering photographs, and will 
provide links to these resources from within the help text for the new 
applications.

D. The Photographs Must Be Created by the Same Author (Including a 
Work-Made-for-Hire Author), Rather Than the Same Photographer

    The NPRM proposed that all the photographs must be taken by the 
same photographer. If the photographs were created as works made for 
hire, the NPRM proposed that, in order to be eligible for group 
registration, all the photographs in the group must have been taken by 
the same employee, and the applicant must have identified both the 
employer and the employee in the application. To register photographs 
taken by different photographers, applicants would be required to 
submit a separate application for each individual. See 81 FR at 86649-
50. Both of these proposals were based on the regulation that currently 
governs GRPPH.\17\ See 37 CFR 202.3(b)(10)(ii), (ix).
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    \17\ When the Office established these requirements in 2001, it 
relied on the statement in the legislative history citing ``a group 
of photographs by one photographer'' as an example of a ``group of 
related works.'' See 66 FR 37142, 37148 (July 17, 2001); H.R. Rep. 
No. 94-1476, at 154. The Office also relied on the statutory and 
regulatory requirements governing the group registration option for 
contributions to periodicals, which permit ``a single registration 
for a group of works by the same individual author.'' See 66 FR at 
37148; 17 U.S.C. 408(c)(2).
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    The CVA commented that commercial studios often use multiple 
photographers and assistants during each photo shoot, and that a shoot 
involving a particular job or client may occur on different dates. 
Given the way these studios operate, the CVA said it would be 
``impractical'' to segregate their photographs into separate groups, 
and it would be ``time consuming and expensive'' to prepare a separate 
application for each photographer.\18\ CVA Comment at 26-27. One 
individual expressed similar concerns and suggested that applicants 
should be allowed ``to include up to three photographers working under 
contract for a single copyright owner.'' Eric Bowles Comment.
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    \18\ The NPRM stated that ``the Office will not accept 
applications claiming that two or more individuals jointly created 
each photograph in the group as a joint work.'' 81 FR at 86650. The 
CVA commented that some photographers work as a team with both 
partners jointly owning each photograph, and that the proposed rule 
would prevent these teams from registering their works. CVA Comment 
at 26. It is unclear from the CVA's comments whether these 
photographs would be considered joint works or works made for hire. 
On rare occasions, the Office has received inquiries from applicants 
expressing interest in registering a photograph as a joint work. But 
to be effective, a group registration option must be narrowly 
tailored to fit the claims that are most frequently received, and it 
cannot be expected to accommodate exceptional cases that fall 
outside of these expected norms.
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    Section 408 of the Copyright Act authorizes the Register to 
``require or permit . . . a single registration for a group of related 
works.'' 17 U.S.C. 408(c)(1). The statute indicates that the Register 
has ``general authority'' to determine whether ``particular classes'' 
of works are sufficiently related to warrant group registration. 17 
U.S.C. 408(c)(1), (2). After considering the comments, the Office has 
determined that this requirement may be met if the photographs were 
created by the same ``author'' (a term that includes an employer or 
other person for whom a work is made for hire), if the works are owned 
by the same claimant, and in the case of published photographs, if the 
works were published in the same calendar year.\19\ Therefore, 
photographs can be included in one group even if they were created by 
different employees, as long as the photographs were created by the 
same author as works for hire.
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    \19\ In this respect, the final rule is similar to the group 
registration option for photographic databases, which may be 
registered if the updates or other revisions are owned by the same 
claimant and were created or published within a three month period. 
37 CFR 202.3(b)(5)(i)(A), (F).
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    The final rule does not represent a change in policy for most 
photographers. When an individual creates a photograph, that individual 
is considered the ``author'' of the work, and thus, the ``author'' and 
the ``photographer'' are the same person. But it does represent a 
change in policy for works made for hire. When a photograph is created 
as a work made for hire, the employer or commissioning party is 
considered the author and owner of the work, rather than the 
photographer who actually created the image. Thus, if the photographs 
were created as works made for hire, the applicant may name the 
employer or commissioning party as the author/claimant, instead of 
dividing the photographs into separate groups and submitting a separate 
application for each photographer.
    For similar reasons, work-made-for-hire authors do not need to 
identify their employees in the application. However, the Office 
developed the new application before it decided to modify this 
requirement; as a result, the application contains a space where 
applicants may provide employee information. If the applicant checks 
the work made for hire box--but fails to complete the employee space--
the application will not be accepted by the electronic registration 
system. The Office intends to remove this space in a future update to 
the system. In the meantime, work made for hire authors who are 
unwilling or unable to identify their employees may complete this 
portion of the application by stating that the individual 
photographer(s) are ``not named in the application.'' \20\
---------------------------------------------------------------------------

    \20\ If the claim is approved this information will appear in 
the online public record as follows: ``employer for hire of 
photographer not named in the application.''
---------------------------------------------------------------------------

E. The Photographs Do Not Need To Be Published Within the Same Country

    When registering a group of published photographs, applicants 
should identify the author's country of citizenship or domicile, as 
well as the country where the photographs were published for the first 
time. The Office will use this information to determine if the 
photographs are eligible for registration under U.S. copyright law. 17 
U.S.C. 104(b)(1)-(2); 409(2), (8).
    The NPRM further proposed that all the photographs within each 
group should be published in the same country. 81 FR at 86650. This 
proposal was based on the current limitations of the electronic 
registration system. To identify the nation of publication in the 
current system, applicants must select from a list of countries 
appearing in a drop down menu, but the system will not allow applicants 
to select two or more countries from this list.
    The CVA objected that photographers would need to prepare separate 
applications if their works are published in multiple countries. The 
CVA also noted that it may be difficult to determine where a photograph 
was published for the first time, particularly if the work was 
published online. CVA Comment at 32-33.
    The Office did not include the single-country requirement in the 
final rule. In most cases, the Office should be able to determine if 
the photographs are eligible for copyright protection based on the 
author's citizenship or domicile. If the applicant is unable to 
establish eligibility based on this information, the Office may ask the 
applicant to confirm that the photographs were published in a country 
that has entered into a copyright treaty with the United States.

[[Page 2547]]

If the photographs were published in different countries, the applicant 
may provide that information in the application in the ``Note to 
Copyright Office'' field.

F. The Scope of Protection for Photographs Registered Under GRPPH and 
GRUPH vs. Photographs Registered Under the Pilot Program for 
Photographic Databases

    The Copyright Alliance and the CVA agreed that photographers should 
be entitled to claim a separate award of statutory damages if they 
register their works under the GRPPH or GRUPH option. See Copyright 
Alliance Comment at 2; CVA Comment at 4. The Copyright Alliance also 
agreed that GRPPH and GRUPH would provide ``more comprehensive and 
effective legal protections'' than a registration for a photographic 
database, because photographers who register their works as part of a 
database would only be entitled to seek one award of statutory damages 
for the database as a whole. See Copyright Alliance Comment at 2. 
Although one member of the CVA disagreed with this view of the scope of 
a database registration,\21\ the Office continues to believe that the 
view it expressed in the NPRM is the correct one. See 81 FR at 86653-
86654. Regardless, under the Copyright Act and the Office's 
regulations, a group registration of published photographs (GRPPH) or a 
group registration of unpublished photographs (GRUPH) will expressly be 
treated as a separate registration for each photograph that is included 
within the group, and applicants who wish to ensure the availability of 
separate statutory damages awards should select one of those group 
registration options.
---------------------------------------------------------------------------

    \21\ CVA Comment at 45 (noting that DMLA contended that 
``databases [should] not be considered compilations,'' and that 
``individual images'' should be ``treated in the same way,'' 
regardless of whether they are registered under GRPPH, GRUPH, or as 
part of a photographic database).
---------------------------------------------------------------------------

G. Additional Considerations

    The Copyright Alliance and CVA also asked the Office to create a 
new group registration option for other types of visual art works, such 
as illustrations, video clips, and textile designs. Alternatively, they 
asked the Office to create another pilot program that would allow 
visual artists to register groups of related works with the online 
application that is designed for registering one work. Copyright 
Alliance Comment at 2, 4; CVA Comment at 5, 8-9, 27, 46-47, 49, 51-52, 
56, 60. The Office recognizes a need for establishing new and updated 
practices for examining and registering visual art works.\22\ The 
Office is considering these issues and will take them into account when 
developing its priorities for future upgrades to the electronic 
registration system.
---------------------------------------------------------------------------

    \22\ See generally Copyright Protection for Certain Visual 
Works, 80 FR 23054 (Apr. 24, 2015).
---------------------------------------------------------------------------

    The CVA also offered some suggestions for improving the current 
system. It encouraged the Office to improve the user interface, and 
allow applicants to populate each field with information stored in a 
spreadsheet or other database instead of entering it by hand. CVA 
Comment at 8. In addition, the CVA encouraged the Office to collaborate 
with third parties to develop apps and APIs that would help 
photographers register works directly from their cameras and photo 
editing programs. CVA Comment at 6, 36. The Office welcomes these 
suggestions. As mentioned above, the Office is in the early stages of 
developing the business requirements for its next generation 
registration system, and it will be seeking further comment on these 
issues in the future.
    Finally, the CVA suggested that a registration for an unpublished 
work would be more effective if copyright owners could claim statutory 
damages and attorney's fees for any infringements occurring within 
three months before the effective date of registration (similar to the 
rule that applies to published works under section 412(2) of the 
Copyright Act). CVA Comment at 48. The CVA also suggested that the 
Office could create a ``deferred examination'' procedure, whereby the 
Office could issue a ``provisional'' registration after examining a 
sampling of the photographs in each group (similar to a provisional 
patent or intent to use trademark registration). If the photographer 
wanted to enforce the copyright in a particular photograph, he or she 
could ask the Office to conduct a ``full'' examination of that 
photograph for an additional fee. CVA Comment at 57-58.
    The Office does not express any views on these suggestions, but 
simply notes that this rulemaking is not the proper forum in which to 
address them. The registration requirements CVA identified in its 
comments are part of the Copyright Act and the Office cannot expand or 
create exceptions to them as part of this rulemaking.

List of Subjects in 37 CFR Parts 201 and 202

    Copyright.

Final Regulations

    For the reasons set forth in the preamble, the U.S. Copyright 
Office amends 37 CFR parts 201 and 202 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority:  17 U.S.C. 702.


0
2. Amend Sec.  201.3 as follows:
0
a. Redesignate paragraphs (c)(3) through (19) as paragraphs (c)(4) 
through (20), respectively;
0
b. Add new paragraph (c)(3); and
0
c. Revise newly redesignated paragraph (c)(4).
    The revision and addition read as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (c) * * *

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(3) Registration of a claim in a group of published                   55
 photographs or a claim in a group of unpublished photographs
(4) Registration for a database that predominantly consists
 of photographs and updates thereto:
(i) Electronic filing........................................         55
(ii) Paper filing............................................         65
------------------------------------------------------------------------

* * * * *

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
3. The authority citation for part 202 continues to read as follows:

    Authority:  17 U.S.C. 408(f), 702.


Sec.  202.3  [Amended]

0
4. Amend Sec.  202.3 as follows:
0
a. In paragraph (b)(3) remove the phrase ``, subject to the limitations 
in paragraph (b)(10)(v) of this section''.
0
b. Remove and reserve paragraph (b)(10).

0
5. Amend Sec.  202.4 as follows:
0
a. Add paragraphs (h) and (i).
0
b. In paragraph (l) remove ``(9), or (10).'' and add in its place ``or 
(9).''.
0
c. In paragraph (n) remove ``paragraph (g) or (k)'' and add in its 
place ``paragraphs (g) through (i) or paragraph (k)''.
    The additions read as follows:


Sec.  202.4  Group Registration.

* * * * *
    (h) Group registration of unpublished photographs. Pursuant to the 
authority

[[Page 2548]]

granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has 
determined that a group of unpublished photographs may be registered in 
Class VA with one application, the required deposit, and the filing fee 
required by Sec.  201.3(c) of this chapter, if the following conditions 
are met:
    (1) All the works in the group must be photographs.
    (2) The group must include no more than 750 photographs, and the 
application must specify the total number of photographs that are 
included in the group.
    (3) All the photographs must be created by the same author.
    (4) The copyright claimant for all the photographs must be the same 
person or organization.
    (5) The photographs may be registered as works made for hire if all 
the photographs are identified in the application as such.
    (6) All the photographs must be unpublished.
    (7) The applicant must provide a title for the group as a whole
    (8) The applicant must complete and submit the online application 
designated for a group of unpublished photographs. (The Office will not 
register a group of unpublished photographs as an unpublished 
collection under Sec.  202.3(b)(4)(i)(B).) The application may be 
submitted by any of the parties listed in Sec.  202.3(c)(1).
    (9) The applicant must submit one copy of each photograph in one of 
the following formats: JPEG, GIF, or TIFF. The file name for a 
particular photograph may consist of letters, numbers, and spaces, but 
the file name should not contain any other form of punctuation. The 
photographs may be uploaded to the electronic registration system 
together with the required numbered list, preferably in a .zip file 
containing all the photographs. The file size for each uploaded file 
must not exceed 500 megabytes; the photographs may be compressed to 
comply with this requirement. Alternatively, the photographs and the 
required numbered list may be saved on a physical storage device, such 
as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office 
together with the required shipping slip generated by the electronic 
registration system.
    (10) The applicant must submit a sequentially numbered list 
containing a title and file name for each photograph in the group 
(matching the corresponding file names for each photograph specified in 
paragraph (h)(9) of this section). The title and file name for a 
particular photograph may be the same. The numbered list must be 
contained in an electronic file in Excel format (.xls), Portable 
Document Format (PDF), or other electronic format approved by the 
Office, and the file name for the list must contain the title of the 
group and the case number assigned to the application by the electronic 
registration system (e.g., ``Title Of Group Case Number 
16283927239.xls'').
    (11) In an exceptional case, the Copyright Office may waive the 
online filing requirement set forth in paragraph (h)(8) of this section 
or may grant special relief from the deposit requirement under Sec.  
202.20(d), subject to such conditions as the Associate Register of 
Copyrights and Director of the Office of Registration Policy and 
Practice may impose on the applicant.
    (i) Group registration of published photographs. Pursuant to the 
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights 
has determined that a group of published photographs may be registered 
in Class VA with one application, the required deposit, and the filing 
fee required by Sec.  201.3(c) of this chapter, if the following 
conditions are met:
    (1) All the works in the group must be photographs.
    (2) The group must include no more than 750 photographs, and the 
application must specify the total number of photographs that are 
included in the group.
    (3) All the photographs must be created by the same author.
    (4) The copyright claimant for all the photographs must be the same 
person or organization.
    (5) The photographs may be registered as works made for hire if all 
the photographs are identified in the application as such.
    (6) All the photographs must be published within the same calendar 
year, and the applicant must specify the earliest and latest date that 
the photographs were published during the year.
    (7) The applicant must provide a title for the group as a whole.
    (8) The applicant must complete and submit the online application 
designated for a group of published photographs. The application may be 
submitted by any of the parties listed in Sec.  202.3(c)(1).
    (9) The applicant must submit one copy of each photograph in one of 
the following formats: JPEG, GIF, or TIFF. The file name for a 
particular photograph may consist of letters, numbers, and spaces, but 
the file name should not contain any other form of punctuation. The 
photographs may be uploaded to the electronic registration system 
together with the required numbered list, preferably in a .zip file 
containing all the photographs. The file size for each uploaded file 
must not exceed 500 megabytes; the photographs may be compressed to 
comply with this requirement. Alternatively, the photographs and the 
required numbered list may be saved on a physical storage device, such 
as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office 
together with the required shipping slip generated by the electronic 
registration system.
    (10) The applicant must submit a sequentially numbered list 
containing the title, file name, and month and year of publication for 
each photograph in the group (matching the corresponding file names for 
each photograph specified in paragraph (i)(9) of this section). The 
title and file name for a particular photograph may be the same. The 
numbered list must be contained in an electronic file in Excel format 
(.xls), Portable Document Format (PDF), or other electronic format 
approved by the Office, and the file name for the list must contain the 
title of the group and the case number assigned to the application by 
the electronic registration system (e.g., ``Title Of Group Case Number 
16283927239.xls'').
    (11) In an exceptional case, the Copyright Office may waive the 
online filing requirement set forth in paragraph (i)(8) of this section 
or may grant special relief from the deposit requirement under Sec.  
202.20(d), subject to such conditions as the Associate Register of 
Copyrights and Director of the Office of Registration Policy and 
Practice may impose on the applicant.
* * * * *

0
6. Amend Sec.  202.20 as follows:
0
a. Revise paragraph (c)(2)(vii)(D)(8).
0
b. Remove paragraph (c)(2)(xx).
    The revision reads as follows:


Sec.  202.20  Deposit of copies and phonorecords for copyright 
registration.

* * * * *
    (c) * * *
    (2) * * *
    (vii) * * *
    (D) * * *
    (8) In the case of an application for registration of a database 
that consists predominantly of photographs (including a group 
registration for revised or updated versions of such a database), 
``identifying portions'' shall instead consist of all individual 
photographs included in the claim. Photographs must be submitted in 
digital form in one of the following formats: JPEG, GIF, or TIFF. In 
addition, the applicant must submit a sequentially numbered list 
containing

[[Page 2549]]

the title and file name--and if the photographs have been published, 
the month and year of publication--for each photograph in the group. 
The title and file name for a particular photograph may be the same and 
may consist of letters, numbers, and spaces, but the file name should 
not contain any other form of punctuation. The numbered list must be 
contained in an electronic file in Excel format (.xls), Portable 
Document Format (PDF), or other electronic format approved by the 
Office. The file name for the list must contain the title of the 
database, and the case number assigned to the application by the 
electronic registration system, if any (e.g., ``Title Of Database Case 
Number 162883927239.xls''). The photographs and the numbered list may 
be uploaded to the electronic registration system with the permission 
and under the direction of the Visual Arts Division, preferably in a 
.zip file containing these materials. The file size for each uploaded 
file must not exceed 500 megabytes; the photographs may be compressed 
to comply with this requirement. Alternatively, the photographs and the 
numbered list may be saved on a physical storage device, such as a 
flash drive, CD-R, or DVD-R, and delivered to the Copyright Office 
together with the required shipping slip generated by the electronic 
registration system or with a paper application submitted on Form VA.
* * * * *

    Dated: December 19, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2018-00687 Filed 1-17-18; 8:45 am]
 BILLING CODE 1410-30-P


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