The U.S. Copyright Office has announced changes to the way it will accept applications for registration of photographs. Effective February 20, 2018, these changes are intended to streamline the registration process for photographers, as well as the Copyright Office staff who review them. Although the new requirements are not especially onerous, they are different and will require some getting used to. As of February 20, 2018 the Office will reject applications filed under the old rules (and because application fees are nonrefundable, an incorrect filing could prove to be a costly mistake).
A Quick Primer on Copyright Registration
Recall that although copyright protection is automatic upon the creation of an eligible work, in the United States, copyright registration affords additional benefits, such as the ability to collect statutory damages and attorney’s fees. Most importantly, a copyright registration (or in some cases, merely an application on file with the Copyright Office) is required to bring a copyright infringement lawsuit. Thus, while you have copyright protection in your images from the moment they are created, as a practical matter, it isn’t all that helpful until the copyrights are registered. Because fighting copyright infringement is already an uphill battle, it has become axiomatic that photographers should register their works.
You can read more about the benefits of copyright registration in Steve Schlackman’s article Why Is Copyright Registration Important? Ask Urban Outfitters.
What’s Changed: The Basics
Under the old system, the Copyright Office offered three ways to register photographs: as a single image (which would be either published or unpublished), a collection of unpublished photographs, and a group of published photographs. Although applications for single image registrations and unpublished collections could be filed online, groups of published works still had to be registered on paper forms, that often took much longer to process than applications filed electronically (there was a pilot program that allowed some electronic applications for published groups, but that program is now obsolete given the new rules).
The new rules both giveth and taketh away. The unpublished collection option has been eliminated and replaced with an unpublished group option, and the applications for published groups must now be filed online — paper applications will no longer be accepted.
So, everything is online now, so that’s good. But, here’s the rub: the old unpublished collection had no limit to the number of images you could submit on one application. Under the new unpublished group option, there is a limit of 750 images per application (the same limit that has long applied to published groups). That means that for some photographers, the cost of copyright registration will go up because what used to be able to go in as a single application will now have to be split into batches of 750, which each application requiring a separate fee.
The Rules: Unpublished Photographs
Many of the rules for registering unpublished photographs as a group (the new way) are the same as they were for unpublished collections (the old way).
All of the works in the group must be unpublished photographs, they must have been created by the same author, and the copyright claimant for each image must be the same person or organization. There must also be a title for the group as a whole, which can be simple but should be sufficiently descriptive that it properly identifies the works in the registration, something like “Chris Reed Photography (Fourth Quarter 2018)” or “Chris Reed Photography (London 2017).”
As noted above, the new unpublished group registration option is limited to 750 images per application. The other big change is that the Copyright Office now requires a more detailed explanation of the images included in the group, something that has long been required for published works, but has now been applied to unpublished works as well. The Copyright Office now requires a “sequentially numbered list containing a title and file name for each photograph in the group.”
Fortunately, the Office has prepared a template (XLS file) to help guide photographers through the process of compiling the list. Although the list is fairly straightforward, some may balk at the requirement that each image be assigned a title. If you have given your images individual titles, then by all means, use them; but if you haven’t, no need to panic. It is sufficient to use the filename that your camera automatically assigns to each image. I use the filename established for each image during the import phase of my workflow, where I instruct Lightroom to append a description of the subject to the camera’s native filename. For instance, an image from a recent trip to Oregon was called 20170811-Oregon2017-1693.CR2, which is also the “title” of the image for copyright registration purposes.
Finally, the Copyright Office now requires that deposit copies be submitted electronically — either online (ideally as a single ZIP file, though that file cannot exceed 500 megabytes) or on physical media such as a DVD or flash drive. The images must be in JPEG, GIF, or TIFF format, and must be accompanied by a list of file names that link them to the title list (thus, the easiest way to go about creating that list is to use the same template).
The Rules: Published Photographs
The copyright registration rules for filing applications for a group of published photographs are more or less the same as described above, except that the works must have been published in the same calendar year, and the applicant must provide the date of first publication for each image in the group, neither of which are new requirements. The only difference now is that such applications must be filed online, whereas before they could only be filed on paper forms.
As with the unpublished groups, the published group application also requires that the applicant submit a title list that is essentially the same as the unpublished group title list, except it contains an additional column on which to include the month and year of publication. Again, the Office has prepared a template to help guide copyright owners through the new process.
The Gift that Keeps on Giving: Defining Published versus Unpublished
One thing that hasn’t changed under the new rules is the familiar problem of having to decide what is published and what is unpublished. The distinction has long been the bane of photographers everywhere, because the definition of “publication” in the Copyright Act is not particularly helpful, especially in the internet age.
As I wrote in my 2014 book:
Doing away with the distinction has been an on-again-off-again focus for many of the photographer advocacy organizations, but as I also wrote in my 2014 book, I don’t think that’s a great idea:
Although the concept of “publication” might seem arcane, the distinction is important for more than just determining which form to file with the Copyright Office. In fact, it comes up in several places throughout copyright law. For example, whether a work is published or unpublished is a consideration in some fair use cases, and certain limitations on the copyright owner’s exclusive rights apply only to published works. For works made for hire, the length of copyright protection is determined by the publication date, and publication status also governs the type of deposit materials that a copyright owner is required to submit along with his or her registration (although for most photographers the rules on deposit are generally the same regardless of whether the work is published or unpublished).