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Notice of Proposed Rulemaking regarding online group registration of certain copyright protected materials, including unpublished photographs.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modernizing the copyright office and utilizing common sense, as in reality most photographic works are created with an unpublished status.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’?

II. Background
On more than one occasion I have spoken with a client about infringement (copying) of multiple photographs that were registered with a single application.  Time and time again the registration occurred prior to the group registration functionality, thus leaving the registration as more akin to a single collection or compilation.  Though I have seen as many as 5,000 photographs registered in this manner in a collection, the law is clear that statutory damages against an individual are per registered work infringed.  
So, for example, if one copies 1000 photographs out of the one collection of 5,000 photographs, the liability is one statutory damage for the infringement of the one registered work (i.e., the collection).  The court reasoning is that this is not 1000 acts of infringement of different works, but rather a single act of infringement of one work.  As a typical statutory damage has a range of $750 to $30,000 per registered work infringed, how one registers multiple works can be of great significance.
III. Work vs. Works
17 U.S.C. § 504 provides that a copyright owner may elect to recover an award of statutory damages for an act of infringement with respect to any one [registered] work.  So does a group registration of photographs yield a registered  ‘work’ or ‘works’?  To date, I am not aware of any case law that specifically addresses this, so it is difficult to say one way or another with absolute black and white certainty.  However, the history behind the concept of ‘group registration’ would appear to favor the latter, especially in the case of published photographs.
When the Copyright Act was amended in 1976, the House Judiciary Committee intended to give the Register of Copyrights “latitude in adjusting the type of material deposited to the needs of the registration system.”  At the time, separate registrations (even for related works or parts of a work) were required, which resulted in administrative problems and unnecessary burden and expense on copyright owners.  It was noted that empowering the Register to allow a number of related works to be registered together as a group “represents a needed and important liberalization of the law now in effect.”
In 2000, the Copyright Office promoted rulemaking and guidelines that further hinted: To register qualified works [in a group registration], an applicant should submit an application Form VA, with the appropriate fee and a deposit consisting of an image of each photograph included in the group.  The recent Rulemaking of December 1, 2016 indicates: A supplementary registration is a special type of registration that may be used ‘‘to correct an error in a copyright registration or to amplify the information given in a registration,’’including a registration for a group of related works.  Perhaps of most significance is the Group Registration form itself, which says (in section B): “To make a single registration for a group of works by the same individual author, all published within 1 calendar year…”
IV. The Wrap-up
In order to best protect your photographs, consider using a medium that results in publication.  Then utilize a single group registration application to register up to 750 qualifying photographs.  In the event multiple photographs of the group registration are copied, assert that multiple works have been infringed (and thus multiple statutory damages are in play).
Expect (or maybe hope) the same capability for unpublished photographs to follow this year!

© 2017 John M. DeBoer  The views expressed in this article are those of the author and do not reflect the views of Rao DeBoer, PLLC, or any of its clients. All rights reserved.