Home | Copyright | Copyright Compendium Updates Offer Added Guidance for Visual Artists
Copyright

Copyright Compendium Updates Offer Added Guidance for Visual Artists

copyright compendium

The U.S. Copyright Office recently issued a draft update to its Compendium of Copyright Office Practices, Third Edition, more commonly referred to simply as “the Compendium” — the administrative manual that governs how the Copyright Office conducts its business. At nearly 1,200 pages, the copyright Compendium is a dense, technical, and intensely specialized document intended to guide staff as well as those who have to interact with the Office. The Copyright Compendium was comprehensively revised in December 2014 — the first major update to the manual in more than fifteen years, which also marked the launch of the Third Edition. According to the Office, the document is intended to be a “living document,” available exclusively online.

The draft released on June 1 is the first update to the third edition, and in addition to making a complete draft of the revised version available, the Office also published a comprehensive set of release notes that summarize the revisions, as well as a more straightforward list of changes and additions. Most of the changes serve to clarify policies or procedures that are already detailed in the Copyright Compendium, and in many cases, the Office has added additional examples to illustrate how it will handle certain circumstances. In a few cases, the Office has revised its practices to accommodate changes in the law. While many of the changes are either perfunctory or mind-numbingly esoteric, the draft does contain a number of clarifications that may help visual artists.

The Copyright Compendium Clarifies The Standard for Conceptual Separability

The first, and perhaps the most significant, change involves a recent Supreme Court case that concerned the copyrightability of artistic features attached to functional items. In Star Athletica, LLC v. Varsity Brands, Inc., the Court clarified the longstanding doctrine of conceptual separability — the standard by which copyright law distinguishes between the utilitarian or functional characteristics of a particular object which are not protected by copyright and the artistic aspects which are. Specifically, the Court was called upon to determine whether certain ornamentation — “lines, chevrons, and colorful shapes” — attached to cheerleader uniforms could be protected by copyright, even though the uniforms themselves were plainly functional.

Concluding that the graphical elements were eligible for protection, the Court explained that an artistic feature of a useful article qualifies for protection in the feature “(1) can be perceived as a two-dimensional or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphical, or sculptural work — either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.”

art compilation
The Copyright Compendium provides guidance on copyrighting these colorful lamps with intricate design.

The Office thus updated its practices to reflect the Supreme Court’s rule, adding examples to help illustrate how it plans to apply the Court’s decision in future registration decisions. For example, it explains that “a lamp is considered a useful article, because it has an intrinsic utilitarian function, namely to provide lighting. By contrast, a three-dimensional floral design affixed to the base of a lamp or a two-dimensional garden design painted on a lamp shade does not have an intrinsic utilitarian function. Therefore the U.S. Copyright Office may register those design features if they are parable from the functional aspects of the lamp and if they are sufficiently original and creative.”

Although the Copyright Compendium provides the updated standard for copyrightability (and thus, registrability), the Office promises “updated guidance” on how to file registration for artistic features of utilitarian works — likely to require specific language and provide clear guidance on the application itself, so applicants can easily understand the distinction between the artistic and utilitarian features of a useful article for which the applicant seeks registration.

Additional Guidance on Typefaces

The new Copyright Compendium also provides guidance on the registrability of typefaces and fonts — an issue which has long confused the typography community. As the Office explains, it “typically refuses claims based on individual alphabetic or numbering characters, sets or fonts of related characters, fanciful lettering, and calligraphy, or other forms of typeface … regardless of how novel and creative the shape and form of the typeface characters might be.”

But, the Office adds a caveat, noting that “[p]ictoral or graphic elements that are incorporated into uncopyrightable characters or used to represent an entire letter or number may be registrable.” So an original image “that forms the entire body or shape of the typeface characters, such as a representation of an oak tree, a rose, or a giraffe that is depicted in the shape of a particular letter” may be registered. Note also that while typefaces — the individual letter forms or glyphs — are not themselves copyrightable, the software that instructs a computer to create those glyphs — embodied typically in OpenType or TrueType files — generally is protectable. That’s why it’s possible for typeface foundries to license fonts, and why copying fonts without permission can get you sued.

Clarifications on Batch Registration Options

Perhaps of most interest and importance to photographers are the Copyright Office’s clarifications to its batch registration policies and practices. For many photographers, the ability to register multiple images on a single application is the difference between being able to register their works and not, since filing individual applications for registration on hundreds of photos would be cost-prohibitive and administratively burdensome.

As I have written about before, the Office has developed two mechanisms by which photographers can file a single application to register multiple works: group registration for published photos, and collections for unpublished photos. The two approaches are very similar, but still, have some distinctions, the foundation of which is whether the works being registered are published or unpublished. Determining whether you works are published or unpublished is a bit tricky, since the Copyright Office takes no formal position on whether a work is or is not published — Chapter 1900 of the Copyright Compendium provides some guidance, but ultimately, as the Office states: “[t]he applicant — not the U.S. Copyright Office — must determine whether a particular work is published or unpublished.”

Many visual artists, and those who represent them — lawyers, agents, reps, and the like — have taken the position that registering works on anything less than a single registration application (one work per application) is legally precarious, because a court might construe the registration to apply to the whole collection or group, as opposed to the individual components, limiting the damages available in the event of an infringement. For example, suppose you register a group of published photographs comprising 200 images. The concern is that if you were to sue for infringement over the unauthorized use of one of those 200 images, the total damage award would be divided by 200, since the infringement related to only 1/200th of the total copyrighted work.

copyright compendium
Copyrighting multiple works at once remains the best approach, according to the updated Compendium.

While that concern is well-founded if the works were registered as an art compilation, the Copyright Office has long taken the position — and courts have agreed — that the registration extends to each individual image within the published group or unpublished collection, and the draft revisions to the Compendium make that even clearer:

If an applicant submits a number of unpublished works – but does not expressly assert a claim in the selection, coordination, and/or arrangement of those works — the U.S. Copyright Office will presume that the claim is limited to the individual works and will register them as an unpublished collection.

By contrast, if the applicant asserts a claim in the selection, coordination, and/or arrangement of the collection as a whole, the Office will register the works as an unpublished collective work, rather than an unpublished collection. This may have significant consequences in a copyright infringement action.

When a compilation claim has been asserted, and the Office has registered the works as an unpublished collective work, the copyright owner may be entitled to claim only one award of statutory damages in an infringement action, even if the defendant infringed all of the component works covered by the registration.

Copyright owners who use a group registration option may be entitled to claim a separate award of statutory damages for each work – or each issue in the case of serials, newspapers, or newsletters – that is covered by the registration, because a group registration covers each work or each issue that is submitted for registration (rather than the group as a whole).

As is so often the case in the law, the difference between a positive and a negative outcome relies on language. If you refer to the group of images a  compilation — a term of art meaning that you have engaged in some sort of copyrightable selection and arrangement — then you may be limited to a single damages award, but artists who properly use the group registration and unpublished collection procedures will maximize their legal protections. This has always been true, but recognizing the confusion and consternation, the Office sought to clarify it in is copyright Compendium revisions.

The new version of the Copyright Compendium is officially still in draft form, and won’t become effective until July 3, 2017. The Copyright Office welcomes public comments on the proposed revisions through June 30 by selecting “Submit a Comment” on the copyright Compendium draft website.

Which updates to the Copyright Compendium affect you?

About the author

Chris Reed

Chris Reed is a Los Angeles-based photographer and lawyer. He practices copyright law in the  media and entertainment industries and is the author of Copyright Workflow for Photographers: Protecting, Managing, and Sharing Digital Images from Peachpit Press.

Add Comment

Click here to post a comment

The Latest From Artrepreneur

  • An Interview With Syd Carpenter

    Sculptor Syd Carpenter on working as an ornamental gardener, Fellowship programs and the challenges of being a Philadelphia artist.The post An Interview With Syd Carpenter appeared first on Artrepreneur. […]

  • Mastering Your Pitch Presentation

    Your best ideas are only as good as how well you can sell them, and mastering the art of the pitch presentation takes time, research, and devotion.The post Mastering Your Pitch Presentation appeared first on Artrepreneur. […]

  • How to Land Top Freelance Gigs

    From cementing your personal branding to building a digital portfolio highlighting your best work, here's how you land the top freelance gigs available.The post How to Land Top Freelance Gigs appeared first on Artrepreneur. […]

  • Bill Carroll: Career Advice from the Artist, Professor & EFA Studios Director

    Pratt Institute professor and EFA director Bill Carroll talks about his career trajectory, lessons from the art market, and the fundamental shifts he's made in the pursuit of his art.The post Bill Carroll: Career Advice from the Artist, Professor […]

  • Develop an Art Catalog, Sell More Work

    From keeping an art archive to keep your studio organized to developing a sleek art catalog for sales, artists should incorporate an organizational routine if they're looking to grow their business.The post Develop an Art Catalog, Sell More Work […]

  • How to Create the Perfect Pitch Deck

    When preparing to present your services to a potential client, what should go into your pitch deck? From services offered to payment schedules, here's how to create a deck that lands the gig.The post How to Create the Perfect Pitch Deck appeared […]

  • How Museum Hotels Like 21c Serve Art to Their Local Communities

    Museum hotels like 21c are finding new ways to engage with their local art communities. Here's how artists can work collaboratively with this innovative new concept.The post How Museum Hotels Like 21c Serve Art to Their Local Communities appeared […]

  • How to Host a Meetup for Local Artists

    Organizing an art meetup is an excellent way to build community. We sit down with the founders of successful initiatives like the Portland Artist Network and the Rural America Contemporary Art Group.The post How to Host a Meetup for Local Artists […]

  • AR as Visual Narrative: In Conversation with Todd Berreth

    NC State University professor Todd Berreth discusses his evolution as an artist and technologist, with a focus on exploring visual narrative within an AR framework.The post AR as Visual Narrative: In Conversation with Todd Berreth appeared first on […]

  • How This New Startup is Elevating AR Creatives

    As the prevalence of augmented reality technology continues to rise, more creatives look to incorporate it into their practice. Companies like Poplar are looking to support AR creatives.The post How This New Startup is Elevating AR Creatives […]

  • Ahol Sniffs Glue on Retail Partnerships and Never Selling Out

    Artist Ahol Sniffs Glue shares insights on managing your brand, taking on retail partnerships and embracing the hustle.The post Ahol Sniffs Glue on Retail Partnerships and Never Selling Out appeared first on Artrepreneur. […]

  • What is Participatory Design in the Arts?

    Introducing principles of participatory design and participatory art into your work can create a more personal experience for your audience, while also promoting repeated viewings for new experiences.The post What is Participatory Design in the […]

  • Let’s Get Virtual! VR Innovations Bridge Fine Arts & Technology

    How is VR and AR affecting the fine arts sector? In a conversation with [email protected] radio, Grace Cho and Todd Berreth discuss emerging trends in VR art.The post Let’s Get Virtual! VR Innovations Bridge Fine Arts & Technology appeared first on […]

  • Mi-Kyoung Lee on Developing a Practice Far From Home

    Born in South Korea, Philadelphia-based artist Mi-Kyoung Lee weaves fiber and plastic to create ethereal sculptures that meditate on labor and domesticity.The post Mi-Kyoung Lee on Developing a Practice Far From Home appeared first on Artrepreneur. […]

  • How an Artist and Musician Collab Can Help Double Your Audience

    From album cover art to costumes and set designs, pairing an artist and musician for an ongoing collaboration is a wonderful way to expand both their networks.The post How an Artist and Musician Collab Can Help Double Your Audience appeared first on […]

  • Why Artists Should Still Use Handwritten Notes

    Looking for a way to connect with your private collectors? Handwritten notes remain a charming gesture that makes a lasting impression.The post Why Artists Should Still Use Handwritten Notes appeared first on Artrepreneur. […]

  • Is The End of the Art Fair in Sight?

    Is the art fair model dead? The advent of online art sales and the high cost of participation has the art world wondering whether more fairs equals more problems.The post Is The End of the Art Fair in Sight? appeared first on Artrepreneur. […]

  • Ditch the Pricey Rent and Run a Pop Up Gallery Instead

    Throughout history, artists have held a pop up gallery exhibition as an intrepid way of drawing attention to their work. Here's why you shouldn't wait for a gallery to come knocking.The post Ditch the Pricey Rent and Run a Pop Up Gallery Instead […]

  • Exploring Alternative Art Spaces to Show Your Work

    Galleries aren't the only places looking to show art. Alternative art spaces like cafes and music venues can help you expand your influence and your market.The post Exploring Alternative Art Spaces to Show Your Work appeared first on Artrepreneur. […]

  • NYAA Grad Matthew Alfonso Durante on Taking Risks

    Artrepreneur sits down with NYAA grad Matthew Alfonso Durante and talk about rural Wisconsin, coming to New York and comic books.The post NYAA Grad Matthew Alfonso Durante on Taking Risks appeared first on Artrepreneur. […]