[Federal Register: May 5, 2000 (Volume 65, Number 88)]

[Proposed Rules]               

[Page 26162-26166]



Copyright Office

37 CFR Part 202

[Docket No. RM 95-7B]


Registration of Claims to Copyright, Group Registration of 


AGENCY: Copyright Office, Library of Congress.

ACTION: Proposed regulations with request for comments.


SUMMARY: The Copyright Office of the Library of Congress is proposing 

regulations to facilitate group registration of published photographs. 

These proposed regulations differ significantly from regulations 

proposed earlier in this rulemaking proceeding, as they require the 

deposit of the actual photographic images, rather than merely written 

identifying descriptions, for registration purposes and as they pertain 

only to published photographs. This option for group registration of 

photographs is available only for registration of works by an 

individual photographer which are published within one calendar year. 

In addition, the Office also proposes to liberalize the deposit 

requirements for groups of unpublished photographs registered as 

unpublished collections. The Office is seeking comments only on these 


DATES: Written comments on the proposed regulations should be received 

on or before June 19, 2000.

ADDRESSES: If sent BY MAIL, an original and 15 copies of written 

comments should be addressed to David O. Carson, General Counsel, 

Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 

20024. If delivered by hand, an original and 15 copies should be 

brought to: Office of the Copyright General Counsel, James Madison 

Memorial Building, Room LM-403, 101 Independence Avenue, SE., 

Washington, DC 20559.

FOR FURTHER INFORMATION CONTACT: David Carson, General Counsel, or 

Patricia L. Sinn, Senior Attorney Advisor, Telephone: (202) 707-8380. 

Fax: (202) 707-8366.


I. Background

    Registration of a copyright can be made at any time during the term 

of statutory protection; however, with the exception of a three-month 

grace period dating from first publication, the law prohibits the award 

of statutory damages or attorney's fees where a work has not been 

registered before infringement occurs. 17 U.S.C. 412.

    Under the 1976 Copyright Act, as amended, an applicant may register 

a claim in an original work of authorship with the Copyright Office by 

submitting a completed application, a fee, and a deposit of copies of 

the work to be registered. The nature of the copy to be deposited is 

set out in the statute in general terms, e.g., one complete copy or 

phonorecord of an unpublished work,

[[Page 26163]]

and two complete copies or phonorecords of the best edition of a 

published work if first published in the United States. 17 U.S.C. 

408(b). The Register of Copyrights may require or permit the deposit of 

identifying material instead of copies or phonorecords; and the 

Register may allow a single registration for a group of related works. 

17 U.S.C. 408(c).

A. Legislative Intent

    In explaining section 408(c), the House Judiciary Committee noted 

that it was intended to give the Register of Copyrights ``latitude in 

adjusting the type of material deposited to the needs of the 

registration system.'' H. R. Rep. No. 94-1476, at 153 (1976). It stated 

that ``Where the copies or phonorecords are bulky, unwieldy, easily 

broken, or otherwise impractical to file and retain as records 

identifying the work registered, the Register would be able to require 

or permit the substitute deposit of material that would better serve 

the purpose of identification. Cases of this sort might include, for 

example, billboard posters, toys and dolls, ceramics and glassware, 

costume jewelry, and a wide range of three-dimensional objects 

embodying copyrighted material. The Register's authority would also 

extend to rare or extremely valuable copies which would be burdensome 

or impossible to deposit.'' Id. at 154 (emphasis added).

    Finally, Congress noted that the provision 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. At present the requirement for separate registrations where 

related works or parts of a work are published separately has created 

administrative problems and has resulted in unnecessary burdens and 

expense on authors and other copyright owners.'' Id. A group of 

photographs by one photographer was cited as one example where these 

results could be avoided by allowing a group registration.

B. Registration Concerns Expressed by Photographers

    For some time the Copyright Office has been working with 

photographers to devise a registration system that works more 

effectively for photographers who have said that they find it difficult 

to register the many images they create due to concerns of time, effort 

and expense. At the same time, the procedure adopted must meet the 

requirement that the deposit adequately identify the work registered. 

Photographers have urged that the nature of much photography, where 

thousands of images may be created, particularly by free-lance 

photographers, with only a few images, if any, being published, makes 

registration difficult. They assert that at the time registration may 

be sought, the photographer may not know which photographs, if any, 

will be or have been published. Often a photographer's film is turned 

over to another party which processes and uses the images, leaving the 

photographer with nothing to deposit with the Copyright Office for 

registration purposes.

    In an attempt to make registration easier for such photographers, 

the Office expanded its procedures regarding deposit materials for two 

and three dimensional works of the visual arts. For example, the Office 

accepts the deposit of a videotape or filmstrip as identifying material 

for collections of unpublished photographs. Despite the liberalization 

of deposit procedures, many photographers continued to urge that the 

requirement that they deposit a visual image of each photograph covered 

in the registration precludes them from registering. They claim that 

while they have been given a legal right by the copyright law, they 

have no effective remedy, thus leading to continued infringement of 

their works.

    During congressional hearings on the proposed Copyright Reform Act 

of 1993, photographers stated that they could not take advantage of the 

benefits of copyright registration because the Office's practices were 

too burdensome in terms of the time and cost required to submit a copy 

of each image included in a collection of photographs.\1\


    \1\ See Copyright Reform Act of 1993: Hearings on H.R. 897 

Before the Subcomm. on Intellectual Property and Judicial 

Administration of the House Comm. on the Judiciary, 103d Cong., 1st 

Sess. 370-72 (1993). See also, Copyright Reform Act of 1993: Hearing 

on S. 373 Before the Subcomm. on Patents, Copyrights and Trademarks 

of the Senate Comm. on the Judiciary, 103d Cong., 1st Sess. 169 



    In June, 1993, the Librarian of Congress appointed an Advisory 

Committee on Copyright Registration and Deposit (ACCORD) to advise him 

``concerning the impact and implications of the [proposed] Copyright 

Reform Act of 1993. . .'' Library of Congress, Advisory Committee on 

Copyright Registration and Deposit, Report of the Co-Chairs, vii 

(1993). The Committee recommended that the Office expand ``the use of 

group registration and optional deposit to reduce the present burdens'' 

and ``consult more actively and frequently with present and potential 

registrants to hear their problems and to respond to them whenever 

possible.'' Id. at 20.

C. Office's Further Attempts to Address Photographer's Concerns.

    After the ACCORD report was issued, the Copyright Office met with 

photographers and their representatives and sought a workable solution 

for photographers which would not cause unforeseen problems for 

publishers, photofinishers, and other users of photographs. On December 

4, 1995, the Office initiated a rulemaking proceeding by publishing 

proposed regulations with a request for comments. 60 FR 61657 (Dec. 4, 

1995). The proposed regulations would have permitted individual 

photographers and photography businesses to make group registrations of 

mixed unpublished and published photographs with the deposit of 

identifying material consisting of written descriptions of the photos 

in a particular grouping rather than copies of individual photo images. 

The notice of proposed rulemaking also framed questions regarding 

possible consequences of adopting the proposed regulations which were 

much more liberal than anything the Office had previously proposed.

    The proposed regulations elicited a great deal of controversy. In 

an effort to reach consensus, the Office held a public hearing and 

provided for an additional comment period. See 61 FR 28829 (June 6, 

1996).\2\ Some respondents approved the proposed regulations, in whole 

or in part, as aiding photographers in their desire for access to legal 

remedies. Others raised a number of concerns, the most serious of which 

is the value of the copyright deposit as an identification of the work 

registered and the question of whether descriptive identifying material 

serves as well as the deposit of the complete image of a photograph for 

a court's purposes. Some respondents claimed that based on past 

experience, it was likely that the proposed regulations would promote 

frivolous litigation targeting parties who unknowingly reproduced 

copies of copyrighted photographs without the copyright owner's 

permission. In response to this concern, industry representatives 

presented a set of proposed guidelines that not only would be followed 

by industry members who had previously agreed to them, but also were 

proposed to be included in, or referenced by, the Office's final 



    \2\ All comments and the transcript of the June 26, 1996, public 

meeting are available for inspection in the Copyright Office Public 

Information Office.


    Another controversial issue highlighted by commenters was whether 

registration claimants who decided to use proposed group registration

[[Page 26164]]

procedures would (or could), by making that choice, be forced by 

provisions of the industry agreement to waive rights to statutory 

damages and attorney's fees in innocent infringement determinations. 

Further comments concerned other registration requirements, identifying 

deposit information, effective date of registration, and consumer 

education about copyright law.

    Professor Peter Jaszi, a member of the ACCORD advisory committee, 

asserted that although some specific and limited suggestions about how 

to address photographers' concerns were incorporated in recommendations 

made by the Librarian of Congress' advisory group ACCORD in response to 

the proposed 1993 Copyright Reform Act, ``there is little if anything 

in the ACCORD record which lends support to such a far-reaching 

revision of registration and deposit practice'' as was contained in the 

Office's proposed group registration regulations. Jaszi reply comments 

in RM 95-7 at 1.

D. Further Reflection on the 1995 Proposal

    When the Office opened this rulemaking proceeding in 1995, its 

goals were to determine how to modify registration and deposit 

procedures to ensure deposit of works for the record, to register works 

to protect claimants, and ultimately to benefit the public by providing 

access to information on copyright status and ownership of photographic 

works. Its efforts to further liberalize deposit provisions for 

photographers led to what seemed insurmountable differences about the 

purpose of the copyright deposit which could not be resolved to the 

satisfaction of all interested parties. Although the rulemaking 

proceeding has remained open for a considerable period of time, the 

Office has continued to consider the issues raised in the proceeding 

and in other contexts (e.g., the adjustment of registration fees and 

other statutory fees). It has also determined that it should reexamine 

the purpose of the section 408 copyright deposit for all classes of 

works and expects to publish a Notice of Inquiry to begin the study 

this year. Meanwhile, the Office is reluctant to implement a procedure 

that would permit the acceptance of deposits that do not meaningfully 

reveal the work for which copyright protection is claimed.

    The Office has decided that it should move forward with a more 

modest proposal which would permit group registration of related 

published photographs. Since this rulemaking proceeding commenced in 

1995, there have been advances in the technology that permits the 

taking and/or preservation of photographs in digital form, and in the 

commercial availability of such technology. The Office expects that 

such advances over the next several years will make identification and 

imaging of photographs for registration purposes even easier so that 

registration will become more readily available for photographers.

II. Group Registration of Photographs Published in the Same 

Calendar Year

    Continued reflection on the issue suggested a possible alternative 

that would give many photographers a more flexible group registration 

procedure by permitting registration of multiple photographs created by 

one photographer which are published on different dates but in the same 

calendar year. The Office is now proposing regulations that would 

permit such an alternative. A.

A. Works Covered and Required Identification.

    Each submission for group registration must contain photographs by 

an individual photographer that were all published \3\ within the same 

calendar year. The claimant(s) for all photographs in the group must be 

the same. The date of publication for each photograph must be indicated 

either on the individual image or on the registration application or 

application continuation sheet in such a manner that for each 

photograph in the group, it is possible to ascertain the date of its 

publication. However, the Office will not catalog individual dates of 

publication; the Copyright Office catalog will include the single 

publication date or range of publication dates indicated on the Form 

VA. If the claimant uses a continuation sheet to provide details such 

as date of publication for each photograph, the certificate of 

registration will incorporate the continuation sheet, and copies of the 

certificate may be obtained from the Copyright Office and reviewed in 

the Office's Card Catalog room.


    \3\ The definition of ``publication'' in the 1976 Copyright Act, 

as amended, is as follows: ``Publication'' is the distribution of 

copies or phonorecords of a work to the public by sale or other 

transfer of ownership, or by rental, lease, or lending. The offering 

to distribute copies or phonorecords to a group of persons for 

purposes of further distribution, public performance, or public 

display, constitutes publication. A public performance or display of 

a work does not of itself constitute publication. 17 U.S.C. 101.


    The Office notes that although it will accept group registration 

claims for all photographs published within a calendar year, an 

applicant who wishes to ensure that he is eligible for statutory 

damages and attorney's fees must register within three months of 

publication. 17 U.S.C. 412. Applicants would be well-advised to submit 

a group registration claim within each three-month period in which any 

photographs in the group were published.

    The Office recognizes that some commenters have previously 

expressed the view that photographers sometimes have difficulty knowing 

exactly when--or even whether \4\--a particular photograph has been 

published. With respect to date of publication, it should be noted that 

the Office's longstanding practices permit the claimant some 

flexibility in determining the appropriate date. See, e.g., Compendium 

of Copyright Office Practices, Compendium II, Sec. 910.02 (1984) 

(Choice of a date of first publication).\5\


    \4\ The Compendium of Copyright Office Practices, Compendium II, 

Sec. 904 states the Office's general practice with respect to 

publication, including that ``The Office will ordinarily not attempt 

to decide whether or not publication has occurred but will generally 

leave this decision to the applicant.''

    \5\ ``1) Where the applicant is uncertain as to which of several 

possible dates to choose, it is generally advisable to choose the 

earliest date, to avoid implication of an attempt to lengthen the 

copyright term, or any other period prescribed by the statute. ``2) 

When the exact date is not known, the best approximate date may be 

chosen. In such cases, qualifying language such as `approximately,' 

`on or about,' `circa,' `no later than,' and `no earlier than,' will 

generally not be questioned.''


    Notwithstanding such concerns, the Office has concluded that it 

cannot establish a group registration procedure that permits claimants 

to include both published and unpublished photographs within a single 

group registration due to their inability to determine whether a 

particular photograph has been published. A procedure permitting 

inclusion of both published and unpublished works in a single 

registration would be unprecedented and would ignore critical 

distinctions between the copyright law's treatment of published works 

and its treatment of unpublished works. See, e.g., 1 Melville B. Nimmer 

and David Nimmer, Nimmer on Copyright Sec. 4.01[A] (1999). Moreover, an 

application for copyright registration must identify the date and 

nation of first publication for each published work. 17 U.S.C. 409(8). 

That statutory requirement would be inconsistent with a procedure that 

permitted claimants to refrain from identifying whether a particular 

photograph has been published.

    The Office also requests comments on whether applications for group 

registration of photographs should be permitted to state a range of 

dates of up to three months (e.g., January 1-March

[[Page 26165]]

31, 2001) in which all the photographs in the group were published, 

rather than stating specific dates of publication for each photograph. 

The Office would consider such an alternative only if it were persuaded 

that requiring specific dates of publication for each photograph would 

impose an unjustifiable and burdensome hardship on photographers, and 

that the advantages (to claimants and to the public record) of such an 

alternative would outweigh its disadvantages.

    The Office believes that it would be beneficial and would create a 

clearer public record if claimants are required to number the 

photographs in a group consecutively (e.g., from 1 to 500), and to 

indicate the number of each photograph on or affixed to the individual 

image of the photograph that is deposited. The Office requests comments 

on whether such a requirement would be desirable.

B. Use of the Appropriate Form, Deposit, and Fee

    To register qualified works as a group, 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 

statutory requirement of a deposit of two complete copies of the best 

edition of each published photograph is waived, and a claimant may 

submit a single copy of each image in any of the following formats: 

Iimages in digital form on CD-ROM or DVD-ROM; single images (prints, at 

least 3 inches by 3 inches and preferably archivally-processed on 

fiber-based paper); contact sheets (preferably archivally-processed on 

fiber-based paper); slides with single images; slides each containing 

up to 36 images; or multiple images on video tape. In addition, any or 

all of the photographs may be deposited in the format in which they 

were originally published, such as clippings from a newspaper or 

magazine. The Office seeks comment on whether there are other formats 

for deposit of full images of photographs that will minimize the burden 

on photographers while providing the Office and the public record with 

accessible and usable images. The Office also seeks comment on what 

file formats should be acceptable for photographs submitted on CD-ROM.

    The Office also seeks comments on whether it should provide an 

optional specialized continuation sheet, similar to Form GR/CP (the 

adjunct application form for group registration of contributions to 

periodicals), which could provide specific information (e.g., title or 

other description, date of publication) about each photograph included 

in the group.

C. How Many Photographs May Be Included in One Registration?

    Due to administrative and workload considerations, a maximum of 500 

photographs may be included in a single group registration. The 

approximate number of photographs in the group submitted must be 

indicated on the application.

D. Relationship of This New Procedure to Other Types of Registration of 


    Registration and deposit requirements for unpublished photographs 

remain unchanged, and may be found in 17 U.S.C. 408(b)(1) and 37 CFR 

202.20(b)(1)(i), and (c)(4)(xix). Registration for individual 

photographs may still be made using a Form VA, submitted with a 

registration fee of $30.00 and a copy of the photograph which complies 

with the existing deposit requirements found at 37 CFR 202.20.

    Unpublished collections of photographs may be registered pursuant 

to the requirements set forth in 37 CFR 202.3(b)(3). The new 

liberalized deposit requirements of 37 CFR 202.20(c)(2)(xx), discussed 

above in section C for group registration of published photographs, 

shall also apply to deposit of unpublished collections of photographs. 

Thus, photographers will be able to register groups of unpublished 

photographs in much the same manner as that in which they can register 

groups of published photographs.

III. Public Comment

    The Copyright Office is seeking comment only on the rules proposed 

in this notice. Reargument of issues raised earlier in this rulemaking 

that have, at this point, been rejected by the Office (e.g., acceptance 

of descriptive identifying material as deposits in lieu of actual 

images) will not be productive. Following review of comments, the 

Office will adopt final regulations. Interested parties are invited to 

submit comments on the following points:

    1. Under the proposed regulations, a claimant must identify the 

date of publication of each image published within the same calendar 

year and submitted for registration. As deposit copies, the Office will 

accept images in digital form on CD-ROM or DVD-ROM; single images; 

contact sheets; slides with single images; slides each containing up to 

36 images; or multiple images on video tape. The Office will also 

accept copies of the photographs in the formats in which they were 

originally published (e.g., clippings from newspapers or magazines). 

The final regulation will specify how dates must be provided for each 

photograph in the group in such a way that for each photograph, one can 

ascertain its date of publication. Recommendations about the best 

methods for providing this information are invited now. In the proposed 

regulations, applicants will have the option of identifying each 

photograph and its date of publication separately on a continuation 

sheet or of indicating the date of publication on each photograph 

itself. For example, if separate photographic prints were deposited, 

the date of publication of each photograph could be written on the back 

of the print. However, for other formats (e.g., CD-ROM, slides 

containing up to 36 images, videotapes, contact sheets), other ways of 

indicating the date of publication for each image will be necessary.

    A. Comments are invited on how the date of publication of each 

photograph can be indicated on the deposit itself for deposits made in 

such formats, and how each date can be connected to the pertinent 


    B. Comments are also invited on how the date of publication of each 

photograph can be indicated on a continuation sheet, and how each date 

of publication entry on the continuation sheet can be related to a 

particular photograph or photographs. For example, if the continuation 

sheet is used, should each photograph be numbered consecutively; and 

for each photograph, should that number be written or otherwise 

indicated on the corresponding copy of the photograph that is 


    C. Comments are also invited on whether the Office's general 

continuation sheet, Form CON, should be used for this purpose or 

whether the Office should provide an optional specialized continuation 

sheet, similar to Form GR/CP (the adjunct application form for group 

registration of contributions to periodicals), which could provide 

specific information (e.g., title or other description, date of 

publication) about each photograph included in the group.

    2. Comments are invited on whether claimants should be required to 

number the photographs in a group consecutively (e.g., from 1 to 500), 

and to indicate the number of each photograph on or affixed to the 

individual image of the photograph that is deposited. Would such a 

numbering requirement assist in identifying dates of publication of 

each photograph when a continuation sheet is used, as

[[Page 26166]]

suggested in question 1.B. above? Would such a requirement assist in 

creating a clearer public record? How burdensome would such a 

requirement be?

    3. Should the Office accept deposits in formats other than those 

mentioned in item 1? If so, what other formats should be accepted? Each 

format must be capable of providing a complete image of each photograph 

in the group.

    4. For photographs submitted on CD-ROMs or in other electronic 

formats, what file formats (e.g., JPEG, GIF, etc.) should be accepted, 

and why?

    5. As an alternative to requiring a claimant to provide the date of 

publication of each photograph in the group, should the Office consider 

offering the alternative of providing a range of dates over a three-

month period (e.g., January 1-March 31, 2001)? What would be the 

advantages and disadvantages--to claimants and to the public record -of 

such an approach?

List of Subjects in 37 CFR Part 202

    Claims, Copyright.

Proposed Rule

    In consideration of the foregoing, the Copyright Office proposes to 

amend 37 CFR part 202 in the manner set forth below:


    1. The authority citation for part 202 is revised to read as 


    Authority: 17 U.S.C. 408, 702.

    2. In section 202.3, paragraph (b)(9) is redesignated as paragraph 

(b)(10), and a new paragraph (b)(9) is added to read as follows:

Sec. 202.3  Registration of copyright.

* * * * *

    (b) * * *

    (9) Group registration of published photographs. Pursuant to the 

authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights 

will accept a single application (on Form VA), deposit and filing fee 

for registration of a group of at least two and no more than 500 

photographic works if the following conditions are met:

    (i) The author of all the photographic works submitted for 

registration as part of the group must be the same person.

    (ii) The copyright claimant in all of the photographic works must 

be the same.

    (iii) The photographs in the group must have been published within 

the same calendar year.

    (iv) The date of publication of each work within the group must be 

identified either on the deposited image, on the application form, or 

on a continuation sheet, in such a manner that one may specifically 

identify the date of publication of any photograph in the group. If the 

photographs in a group were not all published on the same date, the 

range of dates of publication (e.g., January 1-March 31, 2001) should 

be provided in space 3b of the application.

    (v) The deposit(s) and application must be accompanied by the fee 

set forth in Sec. 201.3(c) of this chapter for a basic registration 

using Form VA.

    (vi) The applicant must note on the application Form VA the 

approximate number of photographs included in the group.

    (vii) As an alternative to the best edition of the work, one copy 

of each photographic work shall be submitted in one of the formats set 

forth in Sec. 202.20(c)(2)(xx).

* * * * *

    3. Section 202.20 is amended by adding a new paragraph (c)(2)(xx) 

to read as follows:

Sec. 202.20  Deposit of copies and phonorecords for copyright 


* * * * *

    (c) * * *

    (2) * * *

    (xx) Photographs: group registration. For groups of photographs 

registered with one application under Sec. 202.3(b)(3) or 

Sec. 202.3(b)(9), photographs must be deposited in one of the following 

formats (listed in the Library's order of preference):

    (A) Digital form on one or more CD-ROMs (including C-RW's) or DVD-


    (B) Unmounted prints measuring at least 3 inches by 3 inches (not 

to exceed 20 inches by 24 inches) submitted on fiber-based paper;

    (B) Contact sheets on fiber-based paper;

    (C) Slides, each with a single image;

    (E) The form in which each photograph was originally published 

(e.g., clippings from newspapers or magazines);

    (F) Slides, each containing up to 36 images; or

    (G) A videotape clearly depicting each photograph.

* * * * *

    Dated: April 25, 2000.

Marybeth Peters,

Register of Copyrights

    Approved By:

James H. Billington,

The Librarian of Congress.

[FR Doc. 00-10986 Filed 5-4-00; 8:45 am]