Hat Tip: Photo District News Online
An Appeals Court has reinstated a lawsuit against a textbook publisher that was thrown out by a lower court on the grounds of improper copyright registration.
Alaska Stock sued textbook publisher Houghton Mifflin after the textbook company (allegedly) violated the licensing agreement with the company, including exceeding the print run allowed by the agreement. Houghton Mifflin argued in court that the stock company's Federal Copyright application was invalid on the grounds that it didn't include a description of every work that the company was registering for protection.
Alaska Stock followed the procedure set out by the Copyright Office for registering collective works. This allows for registering in bulk by describing the general nature of the work being registered. It has been in place for 30 years and, as the appeals court points out, has been used by the publishing industry to file for copyright protection for things like magazines and newspapers. (More to the point, works like Houghton Mifflin's textbooks.)
According to he Court of Appeals, the registration for a collective work only needs the title of the collective work and the name of the collective work's author. (Here, that would be "Alaska Stock CD catalog 4"with Alaska Stock as the author.) Alaska Stock included both of those in its registration application. The names and titles of the including works were additional information not needed to make the application valid.
Allowing this type of bulk registration makes sense when you consider the purpose behind registration.
Registration is not done to put individuals on notice that a work has been copyrighted. Copyright protection is automatic.
Registration for Federal Copyright protection is done for the benefit of the Federal Government. One of the requirements is that the copyright holder provide the Government a copy of the work being registered. This allows the Government a way to procure works without having to pay for them. It also provides a way for the Government to determine what is subject to protection in case of a lawsuit. In exchange, the Government provides a cause of action for copyright violation beyond what is available absent registration.
Copyright law provides the Copyright Office the authority to determine how works are registered. It developed the method for bulk registration followed by Alaska Stock and there is no legal reason to deny them the benefit of registration. The registration process in question allows the Government to determine that the works involved (both the catalog and individual images) were included in Alaska Stock's application.
This is all that is needed as far as the Government is concerned.
Copyright registration is not required to put the infringing party on notice that the work in question is subject to Copyright protection. Protection is automatic. It only impacts the penalty for violating protection.
In this case, the Appeals Court basically held that registration was effective for the collection as a whole and for the individual works in the collection. That means Houghton Mifflin could face fines for every single image it used not just a single fine for violating the copyright on the catalog. Multiple willful violations could result in a penalty running into the millions.
This case does provide some good news for photographers. It means that any photographer that engages in the bulk registration of photographs should have a Federal cause of action for the copyright violation of any image registered by this method.
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