Old Photos by Blue Elf Imagine how surprised some photographers are when we tell them  that the government fee for registering the copyrights of a complete photo shoot — comprising hundreds of photographs — is only $35.00 if you do it online.  It seems like nothing the government charges these days is only $35.00!  It represents one of the best bargains available for protecting intellectual property.  Registration gives photographers and other authors of original content access to federal courts, a presumption of validity, a public record of ownership and customs protection.

So, how do you record hundreds of unpublished works (i.e., each photo) in one single registration?  To do that, the registration must qualify as a “collection.”  The Code of Federal Regulations (37 C.F.R. Sec. 202.3(b)(4)) provides the rules:

(4) Registration as a single work. (i) For the purpose of registration on a single application and upon payment of a single registration fee, the following shall be considered a single work:
(B) In the case of unpublished works: all copyrightable elements that are otherwise recognizable as self-contained works, and are combined in a single unpublished “collection.” For these purposes, a combination of such elements shall be considered a “collection” if:

(1) The elements are assembled in an orderly form;
(2) The combined elements bear a single title identifying the collection as a whole;
(3) The copyright claimant in all of the elements, and in the collection as a whole, is the same; and
(4) All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.

Registration of an unpublished “collection” extends to each copyrightable element in the collection and to the authorship, if any, involved in selecting and assembling the collection.

A photo shoot usually meets the above requirements.  It can bear a single title, e.g., “Photo Shoot August 30, 2013”; the claimant is the same for all the images, i.e., the photographer or, perhaps, the photographer’s employer; and all the elements are by the same author, i.e., the photographer. But what about the first requirement that all the elements be “assembled in an orderly form”?  Usually, numbering the images from one to whatever is deemed to be sufficient.  Recently, the U.S. Court of Appeals for the Seventh Circuit considered this question in Quincy Neri v. Melinda Monroe, No. 12-3204, (August 12, 2013, Cir. 7th).

In Neri, a defendant renovation company posted photographs of a completed architectural renovation on various Internet sites.  The photos included, without permission, images of the plaintiff’s sculpture.  This bought them a lawsuit by Neri for copyright infringement.

The magistrate dismissed the lawsuit because Neri had not registered her copyright in the sculpture — yes, registration is important but it must be done correctly! Neri had registered her copyright by submitting to the Copyright Office an application together with a collection of photographs  consisting of a bound booklet and some loose photographs of her unpublished works, the latter of which contained a picture of the sculpture.  The Magistrate judge, though, concluded that the application and resulting certificate were invalid because her submission was not in an “orderly form”.   The magistrate judge believed only a single bound book or booklet could meet the “orderly” requirement but not the loose photographs.

The Court Appeals wrote that it failed to see why only a single document can be orderly and why a court should set aside “an agency’s application of its own regulations without a strong reason.”  But just how much order is required?  No other court had addressed the question and the Court of Appeals was on its own.  The court wrote that the key question is “whether the submission [to the Copyright Office] is organized well enough to permit users and the court to pin down the “information” on which copyright enforcement depends.  The Court went on to hold that this “implies that loose photographs could suffice if numbered or labeled…”   Merely because Neri may have submitted loose photographs in support of her copyright registration was not a de facto reason to reject the registration.  Neither the copyright office nor the Court Appeals concluded that Neri’s submission was invalid.

So, photographers out there, you can submit your loose photographs to the Copyright Office but just make sure they are numbered or labeled for identification purposes.

— Adam G. Garson, Esq.