Changes at Copyright Office 2.0

More Changes at the Copyright Office

By John DeBoer

Just when you thought the Copyright Office had a full agenda in undertaking modernization tasks (we discussed a few items in a previous post), a few new ones have just surfaced.  First, the Office has launched a new website,    This new version has been redesigned with the goal of being organized, responsive, and easier to to use.  Second, to go along with the new site, the Copyright Office has even launched its own Blog,

Copyright Office in 2017

What to Expect at the Copyright Office in 2017

By John M. DeBoer

Last month I discussed how the DMCA Agent program is undergoing a revamp that is intended to coincide with modernization of the Copyright Office.  At the end of December I was pleased to see further changes put on the table by the House Judiciary Committee.  In particular, the memo from Chairman Goodlatte stated:
“The 20th Century statutory framework for the U.S. Copyright Office is not sufficient to meet the needs of a modern 21st Century copyright system.”

Registration of photographs - one work or multiple works?

Does Group Registration of 750 Photographs Register One Work or 750 Works?

By John M. DeBoer

I. Introduction
We take A LOT of photos.  And why not?  Photos are a great means of communication, and technology makes it easy to take an amzing picture that can be immediately shared with friends and family.  Volume is even more applicable for professional photographers who by their nature take thousands of a photos in a given year, but of those may only publish (or license) a select few.  In order to better deal with copyright protection, photographers (pro and amateur alike) have had the ability to register their photographic works in a ‘group registration’ -- provided that the photographs submitted in the deposit were all published within the same year, and were all taken by the same photographer (along with a few other rules).
Recently the U.S. Copyright Office extended a deadline for the submission of comments in response to its earlier Notice of Proposed Rulemaking regarding online group registration of certain copyright protected materials, including unpublished photographs.  Written comments are now due on or before January 30, 2017.  This is a great step toward modernizing the copyright office and utilizing common sense, as in reality most photographic works are created with an unpublished status.
The benefit to using a ‘group registration’ for multiple photographic works speaks for itself: it’s $65 for a single application!  But while this may seem a boon on the surface of it, should multiple applications for multiple works be considered instead?  Consider the scenario where someone copies multiple photographs related to a group registration... Did that person copy a single ‘work’ or multiple ‘works’?

512(h) DMCA Subpoena: Legislative History

512(h) DMCA Subpoena – Legislative History in Support of Statutory Construction
The other day I briefly overviewed the trials and tribulations related to seeking a § 512(h) DMCA subpoena.  Courts, including with respect to my own request, routinely interject legal precedent related to Rule 45 discovery request to that of a subpoena request pursuant to § 512(h).  This then results in a misconstruction of § 512(h), and leaves copyright owners with poor clarity with respect to the overall subpoena process.

To clarify the meaning of the subsection, a brief look at the legislative history may be useful.

512(h) DMCA Subpoena

Recently I took a dive into the murky waters associated with a “DMCA subpoena” or a subpoena pursuant to 17 U.S.C. § 512(h), only to end up in the same spot I started from: nowhere.  My ordeal may be viewed in PACER under 15-mc-00654.

This particular case is related to a Facebook User ID involved with an (alleged) act of infringement against a photographer client and his copyright material.  Though the Page associated with, and presumably “owned by”, the User ID provides contact information associated with a related entity, all attempts to contact the entity were to no avail.

As a result, my Client was forced to consider alternative options to determine the identity of the alleged infringer associated with the Page/User ID, leading to the unenviable task of trying to sort out how to obtain infringer information pursuant to a DMCA subpoena.

Q and A with Artists: creation, fair use, infringement - fun times!

Follow up Q&A

In a recent post I discussed my experience with Chadwick and Spector and the applicability of (or lack thereof) the ‘transformation’ aspect of fair use to their creative works.  Some additional questions subsequently arose that I wanted to take some time to follow up on.

Is there anything to help artists understand the implication or consequence of using a photograph(s) as a reference for a new works, such as a painting or collage?

Well this goes straight to the heart of the issue I discussed in the post – that, from a legal standpoint, there is no black/white, yes/no, bright line, etc. answer to such a question.  And more poignantly: underlying rights in preexisting works are not meant to stifle creation, but instead inspire it.

That said, I would make a few comments, emphasizing this is from the legal perspective.  Most importantly: if you do not own it, do not use it; if you use it, no matter the fashion, you assume the risk and consequence of doing so.  The risk can be reduced or mitigated by getting permission, such as with a written agreement or a license.  If you cannot determine who owns a copyright, the answer shouldn’t be, “hhmm, must be o.k. to use” – this can be grounds for willfulness.  Instead, move on to another work where the rights can be determined or resort to independent creation.

Transformation of Art

Transformation of Art: something more than meets an ‘eye’ test.

As I sat here for quite some time trying to think up a catchy title encapsulating something about “transformers” and “more than meets the eye”, I am reminded at just how uncreative I am.  Which only serves to underscore my amazement and appreciation of the artists I work with.

Recently I had the pleasure of working with Laura Spector and Chadwick Gray, the artists behind the compelling Museum Anatomy series and other related pieces of work – their work viewable on the website

I met Laura and Chadwick through unfortunate circumstance, as it turned out a so-called “artist” based in France was reproducing, offering to sell, etc. counterfeit paintings of their Museum Anatomy series via a number of online French galleries.  What I told Laura at the outset is that taking an action here in the US and trying to accomplish a legal result in France would be nothing short of a miracle.  However, through crafty legal work and utilization of the public report site, Copypedia, we were ultimately successful in getting each and every gallery to remove any and all of the infringing content.  Success!