F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A L A S K A S T O C K , L L C, Plaintiff-Appellant

,

v.

H O U G H T O N M I F F L I

N H A R C O U R T P U B L I S H I N G C O M P A

N Y ; R.R. D O N N E L L E Y & S O N S C O M P A N Y , D efendants-Appellees

. No. 10-36010

D.C. No. 3:09-cv-00061-HRH

O PI NI ON

A ppeal from the United States District Court

for the District of Alaska H. Russel Holland, Senior District J udg e, Presiding

Arg ued and Submitted J uly 27, 2011 Submission W ithdrawn J une 7, 2012 Resubmitted J anuary

10, 2014 A nchorag e, Alaska

F iled March 18, 2014

B efore: Diarmuid F . O’Scannlain, * Andrew J . Kleinfeld, and Consuelo M. Callahan, Circuit J udg es.

Opinion by

J udg e Kleinfeld

* J u d g e B etty B

. Fletch er w as a m em b er o f th e p an el b u t p assed aw ay af ter o ral arg u

m en t. J u dg e O’ Scan n lain w as d raw n to rep l ace h er. H e h as read th e b rief

s, r e v iew ed th e reco rd

, an d listen ed t o th e tap e o f o ral
arg u m en t h eld

o n J u ly 2 7 , 2 0 1 1

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 2

SUMMARY * *

Copyright

Reversing the d istrict court’s dismissa l of a copy rig ht infring ement action, the p anel held that copy rig ht reg istration of a collective work r e g isters the component works w ithin it.

The panel h eld that the Reg ister of Copy rig hts h ad authority to p rescribe a form and g rant certificates ex tending
reg istration to individual stock photog r aphs within a collection w here the names of e ach of the photog r aphers, a nd titles f or e ach of t h e p h otog r aphs, w ere not provided on the
reg istration a

pplications. A gr eeing with other Circuits, a nd deferring to the Copy

rig h t Office’s interp retation o f the Copy rig ht Act, the panel held that where the pho t og raphers had assig ned their ownership of their copy ri g hts in their imag es to the stoc k ag ency , and the stock ag ency h ad
reg istered the c ollection, both the collection as a wh o l e and the individual imag es were reg istered.

COUNSEL

Maurice H armo n (arg

ued), Harmon & Seidman L L C, Northampto n, Pennsy lvania; Christopher Seidman, Autumn W

. B o y d, a

nd Craig F

. W allace, Harmon & Seidman L L C, G rand J unction, Colorado; B r ent R. Cole, Marston & C o l e PC, Anchorag e, Alaska, for Plaintiff-Appellant.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 3

J

. Russell J ackson (arg

ued), Skadden, Arps, Slate, Meag her & F lom L L P, New York, New York; Daniel C. Kent, B irch, Horton, B ittner, an d Cherot, A nchorag e, A laska, for Defendants-Appellees.

Tony W est, Assistant Attorney General; Scott McI ntosh a nd Melissa N. Patterson (arg ued), Attorney s, Appellate Staff, Department of J ustice, Civil Division, W ashing ton, D.C.; David Carson, Gen e r al Counsel; Robert Kasunic, Deputy G e n e r a l C o u n s e l

, U n i t e d S t a t e s C o p y r ig ht Off

i c e, W a shing ton, D .C., for Amicu s C u r iae United States o f America.

OP INION

KL EI N F EL D , Senior Circuit J udg e:

W e address whether copy rig ht reg istration of a collective work reg istered the component works within it.

F acts

This case was dismissed for failure to state a claim, so we

assume for p urposes of analy sis that the f acts were as pleaded in the complaint.

Alaska Stock, a s tock photog raphy ag e ncy , reg istered larg e numbers of photog raphs at a time, listing only some of the authors and not listing titles for each photog raph. I t licensed Houg hton Mifflin Harcourt Publishing Company to

use pictures it had reg istered, for fees based o n the number o f public a t i o n s. Houg hton Mifflin a nd its printer, R.R. D onnelly & Sons, g r eatly e x cee d ed the number of publicationsA L A S K A S T O C K V

. H O U G H T O N M I F F L I N 4

Houg hto n Mifflin had paid for, so Alaska Stock sued for injunctive relief, actual and stat u t ory damag es, attorney s’ fees, and costs.

Alaska Stock owned the copy rig hts to all the photog raphs
at issue, pursuant to assig nment by the in d i v i d ual photog raphers. I t reg istered the c opy rig hts by r eg istering CD catalog s and databases of the stock photos

, entitled “Alaska Stock CD c atalog 4” and so forth, which contained imag e s o f each of the photog raphs. F or “name of author” o n its application, it listed only three of many , in the form “1) J eff Schultz 2) Chris Arend 3) J ohnny J ohnson & 103 others.”

This form of reg istratio n w as p rescribed by the Reg ister of Copy rig hts and was consistent with Copy rig ht Office
pr o c e d ure f

or thirty y e ars. The district court nevertheless dismissed the claims on the g round that the reg istrations were defective, b ecause Alaska Stock had not provided the names of each of the photog r aphers and the titles of each of the photog raphs in its reg istrations. The theory of the d ismissal

was that the reg istrations succeeded o n l y i n reg istering the catalog s themselves, not the individ u al photog raphs within them, on a ccount of A laska Stock’s f ailure to list authors a

nd titles. The district court held that the statute unambig uously required t itles and authors, so the administrative practice to the contrary and a statutory saving s clause for immaterially inaccurate information could not save the claims.

W e reverse.

W e first ex pand somewhat on the history that le d t o t he
reg istrations in the f

o r m u s ed, and then ex plain why the
reg istrations sufficed under the statute.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 5

Profess i onal photog raphers make their living in v arious
way s, sometimes shooting p ictures for wedding s, sometimes for advertisements, someti m es “stock.” I n “stock photog raphy ,” the phot o gr apher usually makes the imag e s before he h a s a customer

. H e then contracts with a stock
ag ency for the ag ency to handle copy rig ht reg istrati o n and licensing

, often for a cas h p a y m ent up front to the stock
ag ency and a percentag e of whatever the stock a g e n cy collects. Purchasers b uy permission from the stock ag ency to

use particular pictures, usually for a limited number of copies, with the prices vary

ing f ro m l es s than a dollar to perhaps a couple of hundred dollars. The photog rapher ’ s income depends on g etting noticed and on volume, since the pictures

are licensed so inex pensively

. Stock a g enci es relieve the photog raphers of some of the burden of manag ing the commercial end o f their business, so that they can focus more

on making imag e s, and they relieve publishers of the burden of locating photog r aphers and purchasing r i ghts to use the imag es they want.

A particularly important task the s t o ck a g encies may perform is a t issue here: reg istering copy rig hts, to deter pirating

. T hat is what A laska Stock did for the many photog raphers whose imag es are affected b y thi s c ase. Alaska Stock reg istered t h i rteen automated databases 1 a nd

one “CD-ROM collection” of photog raphs. Alaska Stock’s photog raphs are each independently copy rig h ted, s o the databases and CD-ROM at issue are each a “collective work” under the Copy

rig ht Act. T he several databases contained between 500 and 6
, 0 00 individual photog raphs each. Each database or CD-ROM contained the work of between 32 a nd 106 photog raphers.

1 3 7 C.F.R. § 2 0 2 .3 (b )(4 ) (2 0 0 6 ) reco d i fied a t § 2 02 .3 (b )(5 ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 6

The copy

rig ht laws and procedures are complex

, so photo stock a g encies worked o ut the r eg istration procedure with the federal ag ency in charg e. Some s t o ck ag encies (such as the plaintiff in t h i s c ase) are very small businesses reliant on a t r a d e association to work o ut the procedures they sho u l d follow. I n 1995, a trade a ssociation o f stock ag encies, Picture Ag ency Council of America, I n c. , met with the Reg ister o f Copy rig ht (the h ead o f the Copy rig ht Offic e )

, h er Chief Ex aminer, and other Copy rig ht O ffice staff, to work o ut h ow to reg ister larg e catalog s o f imag es. The Reg ister ag reed that

a stock a g ency could reg ister both a catalog of imag e s and the individual photog raphs in the catalog in one application if the photog raphers temporarily transferred their copy rig hts to the stock ag ency

for the purposes of reg istration.

The trade association confi r m e d this with the Copy rig ht Office in writing

, and advised its m ember stock ag encies. Using lang u ag e sug g ested by the Copy r i ght Office, Alaska Stock’s ty

pical pre-2001 ag reement with a photo gr a pher includes this lang u ag e: “I g rant Alask a S tock the rig ht to reg ister for copy

rig ht my p hotog raphs which appear in this catalog in the n ame of Alaska Stock solely for the p urpose o f catalog reg istration. A l a ska Stock shall reassig n such
copy rig ht to me upon r equest.” The post-2001 lang uag e was materially similar: “Photog r apher g rants to A laska Stock, solely for the purpose of reg istration, the copy rig ht . . . .”

The Copy

rig ht Office provided a letter t o the trade association t e lling it how stock photo catalog s oug ht to be
reg istered. The l e tter say s that listing only three individual photog raphers by name, followed by the p h rase “and x [ number] others,” and naming the ag ency as owner of the
copy rig hts was “acceptabl e when the accompany ing deposit copies are catalog s consisting of photog r aphs.” A copy rig htA L A S K A S T O C K V

. H O U G H T O N M I F F L I N 7

ex a miner would interpret such filing s to mean that the claim being reg istered would include the catalog a nd “ex tend also
to the p hotog raph s themselves.” The letter say s that a “reg istration application su b m i t t e d for a work c reated by a larg e number of authors is considered acceptable ‘if it names at least three of those authors followed by a statement such a s “and (number) others.”’” Thoug h the o f fice had a “preference” for naming all the authors, the Copy rig ht Office letter sa y s that it is “just that—a preference but not a requirement.”

Having the written blessing of the federal administrative
ag ency f or its method, Alaska Stock fi l ed its applications in accord with what the Copy rig ht Office had said was required. The reg istration quoted above is its standard form, an d was adequate under the Copy

rig ht Office procedures in e f f e c t at the time to reg ister the individual imag es. The deposits filed with the reg istration applications show innumerable beautiful imag es of mountains, g laciers, polar bears, g riz z ly bears, b ald
eag les, dog mushing

, and o ther subject s e v oking the North. The Copy r ig ht Office a

pproved Alaska Sto c k’s applications and issued certificates of reg istration to the company

.

Alaska Stock ’ s c o ntracts with photog raphers require the photog raphers to pay Alaska Stock substantia l a mounts per image

, and entitle them to 35% to 50% of revenues Alaska Stock obtains from their i m a ge s

. Alaska Stock sold Houg hton M i ff

l i n limited licenses to copy and distribute l i m i t e d numbers of copies of the desig nated imag es. Houg hton Mifflin g reatly ex c e e d ed the license limits. The complaint alleg es t h at this was a w illful and fraudulent business method, design ed to lull licensors into a false confidence, b ecause having placed a photog raph with a stockA L A S K A S T O C K V

. H O U G H T O N M I F F L I N 8

ag ency , a photog raphe r w ould assume nothing untoward when he saw it reproduced in a school tex tbook.

The United States h as f

iled an amicus brief in support of Alaska Stock, urg ing that we reverse. The position of the United States is that th e C opy rig ht Office “ has long interpreted the Copy

rig h t Act to permit a

n application to seek
reg istration o f a collective work a nd the component works that the c l a i m a n t owns, e ven if the application does not specify the authors and titles of the c omponent works.” The
g overnment’s brief say s that internal g uidanc e for the
copy righ t ex aminers has, c o nsistent with this position, provided that reg istration of a collective work a lso re gi s t e rs independentl y copy

rig htable works within the c omponent work. T h e Copy

rig ht Office takes the p osition that only the

au thor of the c ollective work, not the individual authors o f

s e parate contributions, need be p rovided in the applicati o n

. The names of three authors followed b y a statement “and [ number] o thers” suffices, as the letter from the Office to the trade a ssociation said. Circulars f rom the Office say the same t h ing

. Alaska Stock complied with Copy rig ht Offi c e procedures. The United States say s t h a t this has b een the Copy rig ht Office interpretation “[ f ] or more than thirty y ears, since the Copy

rig ht Office started r eg istering works under the Copy rig ht A ct of 1976.” I n addition to a deference arg ument, the g overnment makes a p r a gmatic arg ument, that “[ m] any traditional forms of collective works, such as newspapers a nd
mag az ines, c an contain hundreds

– i f not thousands – o f
copy rig htable works that the claimant owns but did not author,” and lis t i n g them individually would be unduly burdensome for applicants.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 9

Analysis

W e review de novo. 2

One can o wn a c o p y

rig ht without reg istering

. W hen a photog rapher has fix ed an imag e i n a tang ible medium o f

ex p ression, he owns the co p y r i gh t , even thoug h he has not reg istered it with the Copy rig h t O ffice. 3 Reg istration is permissive, not mandatory

, and may be made long after the work c omes into ex istence. 4 The owner has various ex clusive rig hts in the work, r eg ardless of whether it is reg istered. 5 The photog r a p h er may transfer ownership of the copy rig ht in whole o r i n p a rt, a

nd any of the ex clusive rig hts of a copy rig ht owner may be transferred and owned separately

. 6 The owner to whom any parti c u l a r rig ht is transferred is entitled to all the protection a n d remedie s o f a copy

rig ht

owner to the ex tent of the rig h t t r a n s ferred. I t is undisputed that the limited a ssig n ments by the p hotog rap h e r s to Alaska Stock w ere valid transfers, and that Alaska Stock is the owner of the copy

rig hts for the purposes relevant to this case.

W h a t this case concerns is reg istration, not ownership. Thoug h a n o wner has property rig hts w ithout r eg istration, he

2 Do S u n g U h m v. Hu ma n a , In c. , 6 2 0 F.3 d 11 3 4
, 1 1 3 9 (9 th Cir. 2 0 1 0 ).

3 S ee 1 7 U.S.C. § 1 0 2 (a).

4 1 7 U.S.C. § 4 08 (a).

5 S ee 1 7 U.S.C. § 1 0 6

.

6 1 7 U.S.C. § 2 01 (d ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 10

needs to reg ister the copy rig ht to su e f

o r infring ement. 7 Reg istration prior to infring ement o r, if the work is published, within three months of publication, is necessary for an owner to o btain statutory damag es and attorney s’ fees. 8 I n this c ase, the photog raphers owned the copy rig hts a nd as sig n ed ownership for reg istration purposes to A laska Stock, w h ich did indeed reg ister them.

W h en a r eg istration application is approved, the Reg ister “shall reg ister the claim” a n d issue a c ertificate o f
reg istratio n

. 9 This c e rtificate is not merely proof that an ap p lication was filed. I t is an administrative a pproval. The Reg ister makes a d e t e r

m i n a t i on after ex amination whether the statutory requirements f

or reg istration are met, and eith er g rants or refuses a reg istration cert i f i c a t e depending on that determination. 1 0 I f a certificate is refused, the applicant must be g iven notice of the reasons, w h i c h would enable the applicant to cure such defects as are alleg ed in this case. 1 1 The Reg ister g ranted certificates to Alaska Stock, which she could only do if after ex amination she d e t ermined that the leg al and formal requirements for reg istratio n were met. Alaska Stock lost in district court on the theory that its
reg istration was defective.

7 1 7 U.S.C. § 4 11 (a).

8 1 7 U.S.C. § 4 12

.

9 1 7 U.S.C. § 4 10 (a).

10 S ee id

. § 4 1 0 (a)– (b ).

11 Id

. § 4 1 0 (b ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 11

The iss u e i n this case arises because the phrase in the
statute deleg ating authority to the Reg ister to pre s c r i b e the forms used for reg istration applications say s that the application “shall include” “the name

. . . of the a uthor o r authors” a

nd “the title o f the wo rk ,” among other thing s. 1 2

12 1 7 U.S.C. § 4 0 9 . In relev an t p art, th at su b sectio n p ro v i d es:

T h e ap plicatio n f

o r co p y rig h t reg istratio n sh all be m ad e

o n a f o rm p rescrib ed b y th e R eg ister of Co p y rig h ts an d sh all in clu d e—

(1 ) th e n am e an d ad d ress o f th e co p y rig h t claim an t;

(2 ) in th e case o f a w o rk o th er th a n a n an o n y m o u s or p seu d o n y m o u s w o r k

, th e n am e an d n atio n ality or d o m i cile o f th e au th o r o r au th o rs, an d

, i f o n e o r m o re of th e au th ors is d ead , th e d ates o f th eir d eath s;

(3 ) if th e w o rk is an o n

y m o u s or p s e ud o n y

m ou s, th e

n atio n ality

o r d om icile o f

th e au th o r o r au th ors; . . .

. . . (5 ) if th e co p y

rig h t claim an t is n ot th e au th o r, a brief
statem en t o f h o w th e claim an t ob tain ed o w n ersh ip of th e co p y rig h t;

(6 ) t h e title o f th e w o rk

, to g eth er w ith an y p rev io u s or altern ativ e tit l es u n d er w h ich th e w o rk can b e id en tif i ed ; . . .

. . . (9 ) i n th e case o f a co m

p i l atio n o r d eriv ativ e w ork

, an id en tif i catio n o f an y p reex istin g w o rk o r w o rk s t h at i t i s b ased o n o r i n co rp orates, an d a b rief

, g en er a l
statem en t of th e ad ditio n al m ateri a l co v ered by th e

co py rig h t claim

b ein g reg istered [.]A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 12

The Reg ister of Copy

rig h ts h as authority to permit “a sing le
reg istration for a g roup of related w orks.” 1 3 Th e i s sue is whether the Reg i s t e r could prescribe a form and g rant certificates ex tending re g i s t ra t i on to the individual photog raphs at issue where the names of each o f t he photog raphers were not p r o v i d ed, and titles for each of the photog raphs were not provided, on the applications.

F irst, na m es

. The statute requires that the a pplication include “the n ame and address o f the copy rig ht claimant,” 1 4 “the name and nationality or domicile of the a u t h or o r authors,” 1 5 and if the “claimant is not t h e author, a brief
statement of how the claimant obtained the ownership of the
copy rig ht.” 1 6 A laska Stock g ave its n ame and address as the claimant and a statement of how it came to be the owner.

The issue of names arises from th e p r o v ision requiring “the name and nationality or domicile of t h e author o r authors.” 1 7 Pursuant to the Reg ister of Copy r i gh t ’s long standing procedure, Alaska Stock’s applications g ave three names and said how many other authors there w e re. The Reg ister o f Copy

rig hts g ranted certificates based on these applications. Addressing this practice, the Associate Reg ister

13 1 7 U.S.C. § 4 0 8 (c)(1 ).

14 Id

. § 4 0 9 (1 ).

15 Id

. § 4 0 9 (2 ). If th e w o rk is an on y m o u s o r p seu d o n y

m o u s, o n ly

“ n atio n ality o r do m icile o f th e au th o r o r au t h o rs” m u s t b e listed

. Id

. § 4 0 9 (3 ).

16 Id

. § 4 0 9 (5 ).

17 Id

. § 4 0 9 (2 ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 13

for Reg istration and Recordation of the United States C o p y r ig ht Office filed a declaration stating that “[ s] in c e 1980, the Copy

rig ht Office has p ermitted, as a m a t ter o f practice, copy

rig ht reg istrations of collective works to cover underly ing c ontributions wh e r e the rig hts in those contributions belong to the claimant even thoug h the individual c ontributors ar e n o t named in the reg istration form.” She a ttached a portion of the Copy r i ght Office, Compendium II: Compendium of Copyright Office Practices (1984), co r

roborating her declaration. T he Compendium say s “the names of the individual authors of separate contributions being reg istered as part of the claim need not be g iven on the application.”

Thus there is no qu e s t i o n that Alaska Stock provided

names as required by the Reg ister of Copy rig hts p ursuant to

a long standing administrative pra c t i c e

. A nd there is no question that Alaska Stock did n ot pr o v i d e names o f the authors of each of the photog raphs reg istered.

S e c o nd, titles. T h e statute requires a “ title” for t h e “work,” but only “an identificati o n o f a ny preex isting work

or works that it is based o n or incorporates” for compilations or derivative works. 1 8

The application for copy rig ht reg istration shall be made on a form prescribed by the Reg ister of Copy

rig hts and shall include . . .

. . .

18 1 7 U.S.C. § 4 0 9 (6 ), (9 ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 14

(6) the title o f the work, to ge t h e r with any previous or alternativ e titles under which the work can be identified; . . .

. . . (9) in the case of a c o mpilation o r derivative work, an identification of any preex isting work or w orks that it is based on o r incorporates, and a brief, g eneral statement o f the add i tional material covered by the
copy rig ht claim being reg istered[ .] 1 9

Alaska Stock provided titles for each work it reg istered, such

a s “Alaska Stock CD c atalog 4,” and identified the con t e n t s with such p hrases as “ CD c a t alog of stock p hotos.” The applications did not provide titles for each photog r aph.

The district court concluded that the Copy r ig ht Office practice c ould not be reconciled with the statu te, as to both authors and titles, so the reg istrations w ere inadequate. Houg hton Miffl in arg ues that the statute unambig uously requires the names o f all the a u t h o rs and titles o f all the constituent works. T h is tension between at least a superficial

r eading of the statutory tex t and the long standin g administrative practice, remains a serious issue.

F or titles, the statutory tex t a nd administrative practice a re easily reconciled. The statute does n o t s a y that the
reg istration application must include a “title” f or e ach constituent work, just an “identification” of any “preex isting work or works”—Alaska Stock identified the contents with

19 Id

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 15

such phrases as “CD catalog o f stock photos” and with CDs showing each imag e, even thoug h it did not g ive each imag e a title.

The r equirement that the applicati o n m u st include the “title of the work” refers to the collective work itself

. T h e sta t ute ex pressly requires only “ identification,” in the sing ular, n ot titles of preex isting works incorporated, and a “brief, g eneral statement of the additional material being covered.” 2 0 The definitions s e c t ion defines a “collective work” in the sing ular, disting u ishing it from “contributions” therein. 2 1 Thus, the statute requires a title for “the work,” in the sing ular, which would b e the collective work in this c ase. There is no inconsistency between the statutory lang uag e a nd the Copy rig ht Office p rocedure, allowing identification of the “work” without requiring titles for each constituen t of the work.

The same analy sis, that t he “work” is what needs an author desig nated, applies to the auth o rs subsection, even thoug h unlike the “title” requirement it mentions “authors” in the plural:

The application for copy rig ht reg istration shall be made on a form prescribed by the Reg ister of Copy

rig hts and shall include

. . . (2) in the case of a w o r k o ther than an anony mous or pseudony

mous w ork, the name and nationality or domicile o f the author o r

20 1 7 U.S.C. § 4 0 9 (9 ).

21 1 7 U.S.C. § 1 0 1

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 16

authors, and, if one or more of the authors i s dead, the dates of their deaths[ .] 2 2

This subsection say s that the name of the author or a uthors o f “the work” must be provided, the statute defines a “collective work” a s being a ty

pe of “work,” 2 3 and here, the author of the collective w ork was Alaska Stock. The references to nationality and d o micile h a v e to do with the provisions for protection of works of f

oreig n o rig in in another section of the statute, 2 4 which are immaterial to this case. The “author o r authors” th a t m u s t b e listed in this contex t are the author o r

au t h o rs o f the collective work itself, a nd the applications in this case do name the author of “the work,” Alaska Stock.

Houg hton Mifflin arg ues that because the word “work” is used to refer to an individual “ copy rig hted work” e l sewhere in the Copy

rig ht Act, it must have that m e a n i n g in section 409. This arg u ment a

r g u ably shows that the term “work” is ambig uous, but does not tell us w hich sens e of the word “work” must be applied in the contex t of reg istering

c o l l e c t i v e w o rk s

. M o re o v e r , Ho u gh t o n M i f f l i n ’ s interpretation of section 409 would render another portion o f the Copy rig ht Act superfluous. Section 408(c)(2)(B ) requires sing le r e g istration s of certain previously published works to identify e ac h w o rk and “its date of first publication.” This requirement is redunda n t if section 409(8), imposing an identical requirement, applies to constituent w orks as well a s to collective w orks. W e should not “adopt a n interpretation

22 1 7 U.S.C. § 4 0 9 (2 ).

23 1 7 U.S.C. § 1 0 1

.

24 1 7 U.S.C. § 1 0 4

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 17

of a cong ressional enactment which renders superfluous another portion of that same law.” 2 5

Additionally

, Houg hton Mifflin points us to what it sees

as the “purpose” of reg istration: to create a public record o f “what specific works of intellectual property are reg istered.” I t contends that “[ v ] alidating r eg istrations that intentionally lack the basic identify ing information tha t Section 409 requires would make that g oa l u n a ttainable.” This p olicy

ar gument sug g e sts that nu merous imag es by “ Phillip Photog rapher” entitle d “ Mt. McKinley ” would somehow identify the imag es more specifically than t h e imag e s themselves, which were on the CDs.

The g overnment makes a practical policy arg ument to the contrary in its brief, that the ex pensive and error-prone tedium of the Copy

rig ht Office ty

ping a ll the names into its records may ex plain why the Reg ister of C o p y rig hts was satisfied to have the names o f o nly three authors for so many y ears. The g o vernment sug g ests that the e limination of this ty ping

, b ecause o f electronic reg istrations, ex plains why the Reg ister now is ex perimenting with new provisions requiring

more in f ormation on material included within collective works.

A 2011 interim rule ex plicates the administrative history relating to stock ag ency reg ist r a t i o ns. Subsequent to the
reg istrations a t issue in this case, the Copy rig ht Office b eg an beta testing of new p rocedure s

. A 2007 interim reg ulation addressed “the Be t a test phase of the electronic, online

25 Ma ckey v. L an ier Co llectio n Ag en cy & S erv., In c. , 4 8 6 U .S. 8 2 5
, 8 3 7 (1 9 8 8).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 18

reg istration sy stem.” 2 6 Then in 2011, the Copy rig ht Office issued interim reg ulations for a pilot prog ram for reg istration of automated databases and group r eg istrations o f photog raphs. The Office recited that for many y ears, “stock photog raphy ag encies have b ee n a ble to obtain reg istrations covering all the photog raphs added to their databases within

a three-month per i od when they have obtained copy rig ht assig nmen t s from the photog raphers.” 2 7 This alludes to the administrative practice the ag e ncy followed w it h Alaska Stock. The interim rule, setting out what forms to use, say s that, even a s of 2011, “questions remain about the capacity o f the sy stem to accommodate applications listing very larg e numbers of authors or titles,” which may affect file siz e a nd transmission speed. 2 8

The r eg ulations in effect w h e n Alaska Stock reg istered the catalog s at issue d o not a dd muc h re ga rding names a nd titles. They do not say one way or t h e other whether the

names of e ach of the authors and titles of each o f the contributions have to be listed.

The reg ulations do make clear the r eg istration status o f separate contributions to collective works. “Reg istration o f

an unpublished ‘collection’ ex tends to each copy rig htable

e l e m ent in the collection and to the authorship, if any , involved in selecting a n d assembling the coll e ction.” 2 9

26 7 2 Fed . Reg . 3 6 ,8 83 (J u ly 6 , 2 0 0 7 ).

27 7 6 Fed . Reg . 4 0 7 2 , 4 07 3 (J an . 2 4, 2 0 1 1 ).

28 Id

. at 4 0 7 4

.

29 3 7 C.F.R § 2 02 .3 (b )(3 ) (2 0 06 ), reco d ified a t § 2 0 2 .3 (b )(4 ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 19

W h ere as here, the ph otog r aphers have assig ned their

o w nership of their copy

rig hts in their imag es to the sto c k
ag ency , and the stock ag ency reg isters the collection, both the collection as a whole and the individual imag es a re reg istered. 3 0

H o ug h ton Mifflin arg ues that a reg ulation requiring a continuation sheet to list titles within a collection shows that the Reg ister does indeed require listing of a ll titles. 3 1 This
arg ument i s m e r i tless, because the reg ulation it d e pends on has an effective date of J u l y 6, 2007, subsequent to all the
reg istrations at issue i n this case. 3 2 W hile the previous version of the reg ulation provided f o r continuation sheets if applicants n eeded more space, it d o e s not mandate, as the

new reg ulation does, identify ing titles and a u t hors of the component w orks in a collection r eg istered as an automated database. 3 3

The r ecord reflects that the Reg ister of Copy rig hts issued certificates of copy

rig ht on each of the reg istrations at issue. The statute say

ing what must be in an application appears to be addressed to her: “The application shall be made on a form prescribed by the Reg ister of Copy r i g hts and shall include

30 S ee Melv i lle B

. Nim

m er & Dav id Nim

m er, 2 Nimmer on Co

p yrig h t § 7 .1 6 (B )(5 )(c) (2 0 13 ).

31 S ee 3 7 C.F.R. § 2 02 .3 (b )(3 ).

32 S ee 7 2 Fed . Reg . 3 6 ,8 83 , 3 6 ,8 8 6 (J u ly 6 , 2 0 0 7 ).

33 S ee 37 C.F. R. § 2 0 2 .3 (b )(9 ) (2 0 0 6); see a lso 7 2 Fed

. Reg

. 3 6 ,8 8 3
, 3 6 ,8 8 6, 3 6 ,8 88 (J u ly

6 , 2 0 0 7 ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 20

. . . .” 3 4 I f an ag g rieved party objected to the Reg ister’s long

s t a n d i n g p r o c e d u r e r e g a r d i n g s t o c k p h o t o a ge n c y reg istrations, petitions to the ag ency , p art i cipation in rule making

, and actions for violations of the Administ r at ive Procedure Act mig h t have afforded remedies. 3 5

The Regi s t er of Copy

rig hts does not perform a mere clerical f unction of r ecording applications. I nst e a d

, the Reg ister makes a judg ment af ter e x amining a

n application. “W h e n, after ex am i n ation, the Reg ister of Copy rig hts determines” that the requir e m e n t o f the statute are met, she
reg isters the claim and issues a certificate, as s h e d id in this

case. 3 6 W hen she determines that “the c laim is inval i d ” she refuses reg istration and provides written notice of the reasons why

. 3 7 Thoug h the c ertificate is not binding upon a c ourt, it is prima facie evidence of the validity o f the copy rig ht. 3 8 The
reg ulations provide for an appellate process when reg istration is denied. 3 9 Thus, the ag ency charg ed with responsibility for administering the Copy

rig ht Act has det e r m ined for each o f the applications at issue that it was valid in all respects. Had the Copy r ig ht Office d eclined A laska Sto c k’s applications and g iven notice that titles and a uthors for all the imag es must

34 1 7 U.S.C. § 4 0 9

.

35 S ee 1 7 U.S.C. § 7 0 1 (e).

36 S ee 1 7 U.S.C. § 4 1 0 (a).

37 Id

. § 4 1 0 (b ).

38 Id

. § 4 1 0 (c).

39 3 7 C.F.R. § 2 0 2 .5

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 21

be provided, Alaska Stock could have submitt e d s u ch applications at that time.

The F ourth Circuit recently confronted the question we face in this case a

nd adopt e d the position advocated b y Alaska Stock and the g overnment. M etropolitan Regional Information S

y stems, Inc. v. American Home Realty Network, Inc.
, addressed whether a r e a l e state listing service h ad properly reg istered the individual ph o tog raphs of properties contained w ithin their listing s by reg istering their listing s a s

a database. 4 0 A competing real estate listing s ervice used these individual imag es w ithout permission. The defendants in that c ase made the same arg ument Houg hton Miff l in makes h ere, namely

, that the “failure to identify names o f
creators and titles o f individual works as required b y 17 U.S.C. § 409(2) and (6) limits the r eg istration[ s] to the Database itself and therefore that the r eg istration[ s] do[ ] not

ex tend to the individual elements in the Database.” 4 1 Th e F ourth Circuit rejected this arg ument, holding that “collective work reg istrations [ are] sufficient to permit a n i n f ring ement action o n behalf of component works, at least so long as the
reg istrant owns the rig h ts to the component w orks as well.” 4 2 W e ag r ee.

The F ifth Circuit held similarly in Szabo v. E r rison that

a musician who filed a sing le reg istration for his collection o f

40 Metro

. Reg ’ l I

n f o

. S ys., In c. v. Am. Ho me Rea lty Netwo r k, In c. , 7 2 2 F.3 d 5 9 1 (4 th

Cir. 2 0 1 3 ).

41 Id

. at 5 9 7 (alteratio n m ark s o rig i n a l a n d in tern al q u o tatio n m ark s

o m itted ).

42 Id

. at 5 9 8

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 22

his “Song s of 1991” succeeded in reg istering individual song s within the c o l l e ction. 4 3 Szabo rejected the arg ument that because he had not li s ted titles for each of the song s, he h ad
not reg istered the constituent song s, the same arg ument Houg hton Mifflin makes h e r e

. S zabo applies the rule that “when one copy

rig hts a c o l l ection, the copy rig ht ex tends to each individual work in the collection e ven thoug h the names of e ach work are not ex p r e s s l y listed in the copy rig ht
reg istration.” 4 4

A Second Circuit case holds that the reg istra t i o n of a

c ollective work, Allure mag az ine, did not reg ister t h e copy r ig ht in a component work w here it d id not own the
copy rig ht to the component work and failed to list its author

or title. 4 5 Alaska Stock does own the co p y r i ghts to the components of the collective w orks. The Second Circuit clarified in an order deny ing rehearing in that case that if “ all rig hts have been transferred to the clai m a n t , then the constituent work is included in the reg ist r a t i o n of the

c o l l e ctive work” even if the authors and titles of the constituent works are not listed. 4 6 T h e T h i r d Circuit also

43 S za b o v

. E r ri s s o n , 6 8 F.3 d 9 40 (5 t h Cir. 1 9 9 5 ), a b ro g ated o n o t her
g ro u n d s b y Reed Elsevier, In c. v. Mu ch nick , 5 5 9 U.S. 1 5 4 (2 0 1 0 ).

44 Id

. at 9 4 3

.

4 5 Mo rris v. Bu s

. Co ncep ts, In c. , 2 5 9 F.3 d 6 5, 71

– 7 2 (2 d C ir. 2 0 0 1 ), a s cla rified o n d

en ia l o f reh ’g
, 2 8 3 F.3 d 50 2 (2 d Cir. 2 0 0 2), an d a b ro ga ted

o n o th er g ro u n d

s b y Reed Elsevier, In c. , 5 5 9 U.S. 1 5 4

.

46 S ee M o rri s v

. B u s i n ess Co ncep ts, In c. , 2 8 3 F.3 d 5 0 2
, 5 05 (2 d Cir. 2 0 0 2 ) (d en y in g reh earin g an d clarify i n g p r e v io u s o pin io n ). T h e p an el

o p in io n h ad p rev io u sly relied o n sectio n 40 9 o f t h e Co p y rig h t A ct to h old th at a m ag azin e p u

b l ish er h ad n ot reg istered an article co n tain ed in o n e of its m ag azin es b ecau se th e p u b lish er did n o t in clu d e th e au th o r an d title ofA L A S K A S T O C K V

. H O U G H T O N M I F F L I N 23

ag rees that reg istration of a collective work suffices to allow suit on the individual components, 4 7 thoug h not i n response to the specific arg ument that the statute r e quires the i n d i vidual a

uthors and titles of the c o mponent works t o b e listed on the reg istration application for the r eg istration to be effective.

Nimmer on Copyright ag rees as well, ex plaining that if the copy rig ht owner of the collective work is not m e r e l y a licensee, but also the copy ri gh t o wner of the c omponents, reg istration of the collective work reg isters the components. 4 8 Nimmer r easons that the reg istr a tion of a collective work should effect r eg istration of the component works, e ven if the individual titles are not li s t e d in the reg istration. 4 9 W e recog niz e that Houg h ton Mifflin’s p osition has prevail e d in

th e article o n its reg istratio n ap p l icatio n

. Mo rris
, 2 5 9 F.3 d at 7 1

– 7 2

. T h e

o rd er d en y i n g re h earin g clarif ied th e o pin i o n t o say ex p ressly th at th e req u irem en t o f listin g all th e n am es d o es n o t ap p ly if th e c l a i m an t o w n s th e co p y rig h t to th e co n stitu en t w o rk s as w ell as th e co llectiv e w o rk it is
reg isterin g , as A lask a Sto ck d i d at t h e tim e it reg istered th em

. S ee Mo rris
, 2 8 3 F.3 d at 5 05

.

47 Ka y Berry, In c. v. Ta

ylo r Gifts, In c. , 4 2 1 F.3 d 1 9 9 , 2 0 4
, 2 0 6 n .2 (3 d Cir. 2 0 0 5 ) (“ A lth o u g h th e issu e is n o t b ef o re u s o n ap p eal, w e no t e th at d ecisio n s o f th is Co u rt an d o th ers co u n sel th at reg istratio n o f a co llectiv e

w o rk i s s u f

f icien t to su

pp o rt an actio n f

o r in f rin g em en t o f th e u n d erly in g self

- co n tain ed p arts.”).

48 Melv ille B

. N i m m e r & Dav id Nim m er, 2 Nimmer o n Co

p yrig h t § 7 .1 6 (B )(5 )(c) (2 0 13 ).

49 Id

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 24

one p ublished and sev eral unpublished district court decisions, 5 0 but we do not ag ree with them.

W e h a ve held that “[ w] hen interpreting the Copy rig ht Act, we defer to the Copy rig ht Office’s interpretations in the appropriate circumstances.” 5 1 Here, where the Cop y r ig ht Office h as announced its i n t e r p retation primarily throug h “internal ag ency m a n u a ls [ and] opinion letters, we defer to the Copy rig ht Office’s views ex pressed in such materials only
to the ex tent that those interpretations have th e p ower to persuade.” 5 2

50 S ee Mu en ch Ph o to g ra

p h y, In c. v. Ho u g hto n Mifflin Ha rco u rt Pu b l’g Co

. ,7 1 2 F. Su

p p

. 2 d 8 4 , 9 2

– 9 4 (S.D.N.Y. 2 0 10 ); Mu en ch Ph o to g ra p h y, In c. v. Pea rso n Ed

u c., In c. , 20 13 W L 6 1 8 5 2 0 0
, at * 1 0

– 1 3 (N.D. Cal. No v

. 1 9
, 2 0 1 3 ); Bea n v. Ho u g h to n Mifflin Ha rco urt Pu b l’g Co

. , 2 0 1 0 W L 3 1 6 8 6 2 4
, at * 3 (D. A riz. A u g

. 1 0
, 2 0 1 0). Bu t see Pa n o ra mic S to ck Ima g es, Ltd

. v. McGra w-Hill Co m

p a n ies, In c. ,

_

_ F. Su p p

. 2 d

_ _ , 2 0 1 3 W L 4 0 4 7 6 5 1
, at * 2

– 7 (N.D. Ill. A u g

. 9
, 2 0 1 3 ); Pa no ra mic S to ck Ima g es, Ltd

. v. Jo hn W iley & S o n s, In c. ,

_

_ F. Su p p

. 2 d

_ _ , 2 01 3 W L 4 5 5 1 6 6 6
, at * 7

– 9 (N.D. Ill. A u g

. 2 8
, 20 1 3 ); Ma sterfile Co rp

. v. Ga le

, 2 0 1 1 W L 4 7 0 2 86 2
, at * 1

– 2 (D. Utah Oct. 4 , 2 0 1 1).

5 1 In h a le, In c. v. S t

a rb u zz To b a cco , In c. ,

_

_ F.3 d

_ _ , 2 0 14 W L 6 9 0 0 0
, at * 2 ( 9 th Cir. J an

. 9
, 20 1 4 ); see also Ba tja c Pro d s. In c. v. Go o d Times Ho me Vid

eo C o rp

. , 1 6 0 F.3 d 1 2 2 3
, 1 2 3 0

– 3 1 (9 th Cir. 1 9 9 8 ) (T h e Co p y rig h t Of f ice’ s “ in t erp retatio n s are en t itled to j u d icial d ef eren ce if

reaso n ab le.”) (q u o tin g Ma r a sca lco v. Fa n t

a sy, In c. , 9 5 3 F

. 2d 46 9
, 4 7 3 (9 th Cir. 1 99 1 )).

52 In h a le, In c. , 2 0 1 4 W L 6 9 0 00
, at * 2 (in tern al q u o tatio n m ark s o m itted ). T h e Co p y

rig h t Of f ice also an n o u n c e d its p ositio n by pro m u lg atin g

co p y rig h t f o rm s. B ecau se th e f

o rm s created b y th e Co p y rig h t Of f i ce are statu to ri l y au th o rized

, it is p o ssib le th at th ey q u alif y f o r th e m ore d ef eren tial C h evro n d ef

eren ce u n der M

e a d

. S ee Un i ted S ta tes v. Mea d Co rp

. , 5 3 3 U.S. 2 1 8
, 2 27

– 3 1 (2 0 0 1 ); see also Ba tja c Pro d s. In c. , 1 6 0 F.3 d
at 1 2 3 1 (“ T h e Reg i s t e r ’s p o sitio n is reaso n ab le an d co n sisten t w i th ou r

rev iew o f th e co n tem

p o ran eo u sly

u sed reg i stratio n

f o rm s u s ed u

n d er th eA L A S K A S T O C K V

. H O U G H T O N M I F F L I N 25

W e find the Copy

rig ht Office’s interpretation persuasive. Thus, we conclude that Alaska Stock successfully reg istered the copy rig ht both to its colle c t i o ns and to the individual i mag es contained therein. 5 3 Th e s t a t u t e r e q u i r e d identification o f the author and title of the “work,” which was the collective w ork, and ex tended reg istrat i o n to the component parts if the party reg istering the co l l e c tive work owned the copy

rig ht to the component parts, as Alaska Stock did. The procedure applied f o r over three decades by the Reg ister of Copy

rig hts to reg istration by stock photo ag encies complied w ith the statutory requirements and did not violate
any c lear requirement to list individual authors and titles o f the components w ithin the work. W hile arg uably the statute could be read otherwise, the Reg ister of Copy rig hts’ r eading that a collection of stock photos may be reg istered w i t hout in dividual titles, and without naming more than three of the authors and merely desig nating the n umber of authors, pursuant to an assig nment in the lang uag e Alaska Stock used,

was reasonable and persuasive. Reg istration by a song writer and sing er of a CD of his song s reg isters both t h e collection and the individual song s, 5 4 and reg istration by a s t o ck photo
ag ency of a CD c ollection of imag es t h e copy rig ht to which the stock ag e ncy owns, r eg i s t e rs both the collection a nd the individual imag es.

1 9 0 9 A ct. W e co n clu d e th at it is en titled to d ef eren ce.”). W e n e e d n o t d ecid e th i s q u estio n , h o w ev er, as w e co n clu d e th at th e Co p y rig h t O f f ice’ s p o sitio n is p ersu asiv e u n d er less strin g en t S kid mo re d ef eren ce.

53 W e t h eref o re d o n o t reach th e qu estio n of w h eth er 1 7 U.S.C. § 4 11 (b )

w o u ld h av e ex cu sed A lask a Sto ck ’ s “ f ailu re” to list th e titles an d au th o rs

o f th e in d iv id u al p h oto g rap h s.

54 S ee S za b o , 6 8 F.3 d at 9 4 3

– 44

.A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 26

Chevron and its prog eny g enerally a rticulate several

reasons for d e ferring to a dministrative interpretation, including g ap filling pursuant to implicit or ex plicit deleg ation to the ag ency , ex pertise of the ag ency in addressing technical and complex matters, and resolution o f policy debates by “leg islators a nd administrators” rather than judg es. 5 5 W hile these c o n siderations counsel in favor o f deference in this case, an even strong er reason does as well.

A long standing administrative interpretation upon which private actors have relied a i d s i n construction of a statute precisely because p rivate p a r ties have long relied upon it. 5 6 The Supreme Court said long ag o in United States v. Hill that “[ t] his principle has been applied, a s a wholesome one, f o r the establishment and e nforcement of justice, in many c ases in this c ourt, not only between man and man, but between the
g overnment and those w ho deal with it, and put fa i t h i n the action of its constitu t e d authorities, judicial, ex ecutive, a nd administrative.

. . . A contemporaneous constru c t i o n , by the officers upon whom was imposed the d uty of ex ecuting those

s t a t u t es, is entitled to g reat weig ht; and since it is not c l e a r that that construction was erron e o u s , i t oug h t not now to be overturned.” 5 7 The Court instructed in modern times that

“ [ i ] n lig ht of

. . . substantial reliance interests, t h e

55 C h evro n U.S .A., In c. v. Na t’l R e s

. D e f

. Co u n cil

, 4 6 7 U.S. 8 3 7
, 8 6 4 (1 9 8 4).

56 2 B No rm an J

. Sin g er & J .D. S h am b ie Sin g er, S

u t h erla nd Sta tu tes a n d S ta tu to ry Co n stru ctio n § 4 9 :3 (7 th ed . 2 01 2 ).

57 1 20 U.S. 1 6 9 , 1 8 2

– 8 3 (1 8 8 7 ) (in tern al q u o tatio n m ark s o m itted ).A L A S K A S T O C K V

. H O U G H T O N M I F F L I N 27

long standing administrative c onstruction of [ a] statute should ‘not be disturbed ex cept for cog ent reasons.’” 5 8

W e are not performing a mere verbal, abstract task when

we construe the Copy

rig h t Act. W e are affecting the fortunes of people, many of w hose fortune s are small. T h e stock
ag encies throug h their trade association worked out what they should do to reg ister imag es with the Reg ister of Copy rig hts, the Copy rig ht Office established a clear procedur e a n d the stock ag encies followed it

. The Copy rig ht O f fice has maintained its procedure for three d ecades, spanning multiple administrations. The livelihoods of p hotog raphers and stock
ag encies have long be en founded on their c ompliance with the Reg ister’s reasonable interpretation of the statute. Their reliance u p on a reasonable and long standing a d ministrative interpretation should b e h onor ed. Deny ing the fruits o f reliance by citiz ens on a long standing a dministrative practice reasonably

construing a statute is unjust.

REVERSED AND REMANDED.

58 Zen ith Ra d io Co rp . v. Un i ted S ta tes , 4 3 7 U.S. 4 4 3 , 4 5 7 –5 8 (1 9 7 8 ).