New Rules! (for photo © registrations) UPDATED

Back in December of 2016, the US Copyright Office (USCO) proposed new rules for group photo registrations, including significant changes to registering a pile of unpublished photos. I wrote about the proposed rules then. Now, the final rules are out and they mostly match up with the proposed ones, but not completely.

The new rules make two categories of group photo registrations (leaving out databases, which are a different kettle of fish and most individual artists will not have to address those, so I’m skipping them here). The two categories are GRPPH for Group (of) Published Photographs and GRUPH for Group (of) Unpublished Photographs. Now, most of the rules are the same for both, making life a little easier as you will have to learn, essentially, one system.

First, though, you’ll notice that you still have to keep published and unpublished separated. The USCO looked at the issue and they simply can’t change that as it is not a “rule” but rather part of the law itself. The USCO has the authority to create and modify rules, but it can’t change the underlying law or create rules that conflict with those laws. It does sound like they think the split should be dropped, though, so maybe that will come sometime in the not terribly distant future?

Oh, and about the unpublished photographs… you will no longer be able to do the unlimited number of photos as a collection option. It is GRUPH only from here out.

Anyway, the new rules… first, the commonalities. These are the rules for both groups:

  • must have a title for the whole group
  • must have titles for each photograph in the group (can be just the file names, but with character restrictions)
  • limit of 750 photographs per registration
  • all photos must have the same author[1]
  • must register online–no paper registrations will be accepted
  • must pay the $55 fee
  • must submit digital deposit copies (jpeg, gif, tiff only), preferably in an uploaded .zip file containing all the photographs (that must be <500 megabytes total[2]);[3]
  • must submit a separate document that lists the photos in a very specific manner (more on that below) that should be included in the .zip file.

For published photographs, the pilot program is ending with these new rules. If you’ve been a part of the pilot program, the USCO should be contacting you about the changes. As for the registration differences, published photos have these additional rules: they all must be first published within the same calendar year (i.e., 2015 or 2018, etc.), same as the current rule; but, and this is new, they do not have to have been first published in the same country. Also, you will need the date of first publication for each photograph.

Now, about that list document… this is going to be a bit of extra work, but it really will be helpful in the case of an infringement as all the information about the deposit copies will be easily accessible. For this document, which the USCO says should be either xls (an Excel file) or a pdf, there are nitpicky rules. I suggest making a template and sticking to it.

First, the document itself must be named in a very specific manner: the title of the group plus the case number assigned to the application by the electronic registration system. Yes, that means you can’t name the document until after you have created the application online and get a case number, but you can still prep the document (that will be uploaded with the deposit copies) and have it ready, just add the case number to the title. An example for a group registration of unpublished photos that Photo Betty is making from her trip to Hawaii might be Group Unpublished Hawaii Photographs Case Number 123456789.xls. Or, for published photographs from the same trip, Group Published Hawaii Photographs Case Number 987654321.xls.[4]

The contents of the document need to be, in order:

  • sequential numbering (i.e., 1, 2, 3…)
  • title of the photograph (this may be the same as the file name)
  • file name of the photograph (no characters other than letters, numbers, and spaces).

So, for example, the contents of the document for unpublished photos might look something like[5]:

  1. title: Maui at Dusk 1 file: Maui1.jpg
  2. title: Maui at Dusk 2 file: Maui2.jpg
  3. (etc.)

If the photos are published, then you add the date of first publication. So, the example above, if Betty published them on her stock photo site on January 15, 2018, would be:

  1. title: Maui at Dusk 1 file: Maui1.jpg pub. date: 1/15/2018
  2. title: Maui at Dusk 2 file: Maui2.jpg pub. date: 1/15/2018
  3. (etc.)

That’s it and, really, it’s not that terrible.

More importantly, the rules specifically state that photographs registered as a part of one of these groups will each be individually covered by the registration. That is a very big deal. That eliminates one of the biggest arguments defendants make–that is that any one photograph is only a tiny part of the whole registration and so the damages must be less or, even, that fair use applies. Nope, now it will be clear that each photograph in the group gets the full measure of damages and is fully protected as its own self (not a part of a greater whole). Huge benefit there, especially for unpublished photos where this has been a particular problem.

These new rules go into effect on February 20, 2018. For the detailed information, go here (pdf).

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UPDATE: The USCO has come out with help pages that include links to templates (Excel) for making the lists. Go here for unpublished and here for published.

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[1] “Author” does not necessarily mean “photographer” although it can. If you are an individual photographer then you are the author of your photos. Easy-peasy. However, for studios with multiple photographers and other employers of photographers, the employer is the author of all the work, even if created by multiple photographers.

[2] The photos may be compressed to fit the file size requirement.

[3] You can send flash drives or DVDs or similar instead, but it’s really easier (and much faster to get your certificate) to upload the files.

[4] While the rules do not specifically say you must say “group” in the title, it has been preferred that one do that and I suspect that preference will continue. It won’t hurt to use that format so I suggest sticking to it, at least for now.

[5] The new rules state that the information I note must be included, as I have it here, but it doesn’t say what the preferred format is. This is a best guess for how they want it from the description in the rule. I expect the USCO will clarify in the instructions on their website soon. For example, maybe the Excel sheet can have the words “title” and “file name” (and “pub date”) in the column headers rather than in the text.

27 Replies to “New Rules! (for photo © registrations) UPDATED”

  1. Hi Leslie,

    Quick question about “Author”.
    If an individual purchased 10 unpublished photographs, from 3 photographers (30 images), complete with an exclusive full assignment of copyright and ownership of these images, would that individual then qualify as “Author” and allowed to use the Group restoration? Thanks!

    1. Bill: You’re asking for specific legal advice that you should consult with a lawyer about. I will say generally that an author (for © purposes) is not someone who acquires a work’s copyright later, even under these new registration rules.

  2. This is really terrible news for people who shoot a lot. It’s going to exponentially increase the cost for registration of unpublished photos.

  3. Hi Leslie,
    Given the rule change coming on Feb 20 that limits group registration to 750 per application, is it worth trying to get as many unpublished images registered before it becomes way more expensive to do so?
    I know a lot of photographers that register their raw unpublished collection in mass every 6 months or so. I have not since I do a lot of post processing (cropping, color correction, and application of filters like HDR, etc.) and have always chosen to wait till I have the finalized image before registering. This has naturally resulted in way fewer images being registered.
    Something I’ve always wondered about regarding the mass registration of raw unpublished images is: if you tend to do a decent amount of post-processing of those images before you come to the final publishable image, are you still covered by the registration of the original raw unaltered image? I.e., Say the final image looks quite a bit different than the original raw one but derivation of final from original is still recognizable. Is the final image still covered? Is there a certain criterion for similarity here btwn the original raw and the final image for registration coverage to still apply to manipulated final image? Sorry for the long question.

    Thanks, Derek

    1. Derek,
      I can’t answer legal questions like what you’ve posed–not without being hired and paid. That is my product. 🙂
      Seriously, though, if you have questions, you need to hire an attorney. A general answer won’t help you because how much change is an important part of the equation.

      As for registering as much as you can now, I think that is a terrible idea. The law is not on your side with the current system, but it is with the new one. See the link I just posted in my reply to Greg.

      1. Leslie, Fair enough. Sounds like the answer to my question boils down to an individual assessment. Btw, what are your rates for a consultation on a question like this?

  4. I have over 200,000 images in my Lightroom catalog. Total registration cost if I wanted to register them all? Nearly $15,000. Total cost under the old system? About $600. How good does my business need to be, exactly?

    1. Greg: According to the quick USCO search I just did (I searched your name and your business name), you have only made one registration ever, and that was over 10 years ago. I don’t think you can complain about it being more costly now when you didn’t bother to do it regularly before.

  5. Derek,
    Can you point us to a source that defines a published photograph and an unpublished photograph. Also, would a photograph posted to Instagram be considered published or unpublished?
    Thanks,
    Philip

    1. Not sure why are you asking Derek for advice on my blog…. but anyway…
      As regards your question, “published” for the purposes of copyright law is defined in the law, but sadly it’s not a great definition: “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.” See this USCO pdf. There is some debate about whether posting on social media is publication, since it’s not always an offering for further distribution but, if you are going to take a guess about the publication status of a work, it is better to register something that might be unpublished as published, than the other way around.

  6. Thank you, Leslie, for responding to my question. Much appreciated. Also, please accept my apologies for mixing up your name. (Reading on a small phone screen didn’t help….)

    Thanks again,
    Philip

  7. Hi Leslie,
    Thanks for the link to the alpha universe article above. Very informative. But I am confused on one point. On the point you make below, why does this only apply to a Group of Unpublished Photos and not a Group of Published ones as well? It seems to me that the weakness the former is being attacked on is shared by the latter as well (i.e., in both cases, 1 image is just a small fraction of the whole, no?)?

    “Also,” she adds, “for unregistered collections (the previous method of registering lots of unpublished photographs), the case law was a bit murky so defendants would often try to argue that a photographer could only get one award of statutory damages, no matter how many images in the collection were infringed, or that the award should be small since only a part of the whole collection was infringed. The other side of that is they would also try to say it was fair use when they used only one or a couple of images since that was a teeny part of the 1,000 images in that one registration! These new rules make it clear that each image is fully and individually covered. That’s a huge win for photographers.”

    Thanks, Derek

    1. Derek: about my rates, please email me privately.
      About the Group Published Photos–that category existed before the rule change and the case law (and rules) already made it clear that for those specific registrations, each individual photo was covered. Not so for the previous “unpublished collection” photos.

  8. Leslie,

    Greater protection for each and every infringed image is a plus, but it comes at a great cost, metaphorically and literally. I am guessing overall people will be less inclined to register all their images under these new rules/fees.

    When I register a bunch of images from one shoot, the likelihood of more than one of them being infringed is not very likely, as usually a client only selects one out of say every 750 (for arguments sake) to use, which only puts one image out there. The other 749 never see the light of day (and which one it will be is almost ever certain) so the potential of multiple awards from multiple infringements of multiple images is almost nil.

    On the flip side, instead of registering 4,470 images (my last registration) for one $55 fee, I would be forced to register them in six separate registrations for $330 worth of fees, plus the added time of doing six registrations. $330 for insurance is not a huge expenditure in the grand scheme of things, but it’s a lot more than $55, which is more than when it was $35 a few years ago- a six fold increase. When I have a slow period, am I likely to spend $330 (plus the added time and work) on a series of six back to back copyright registrations, or maybe spend the money fixing a misbehaving lens? It’s not a matter of squeezing pennies, it’s trying to have enough pennies to squeeze in the first place.

    The copyright office should be making it easier on us to register our copyrighted images, instead of making it harder and in effect discouraging us from doing so, IMHO.

    Thanks.

    1. Robert:
      You’re misunderstanding some of the risks in the current scheme: one image infringed out of 750 can be argued to be fair use as only 1/750 of the work was used. One of the factors for a fair use analysis is how much of the work was used. 1/750 is a loser on that factor. While not determinative in and of itself, it is something else the bad guys can argue. It makes settlement and litigation much harder.
      With the new system, that is impossible.

  9. I get your point Leslie, although I never heard of that being a major impediment to collecting a reasonable amount on a copyright infringement case, but you’re the lawyer and I am not ;). And, I am not arguing that the part of the change that protects all images, each as a separate potential infringements is bad, just what we lose in return, i.e. being able to register thousands of images at once, in one registration, for one $55 fee is an issue for some of us. For someone who has never had any images infringed (that I know of), an estimated $1,000- $1,500 a year is a lot to spend on the off chance someone does help themself to an image(s), assuming that I will even be able to collect based on where they are located.

  10. This seems like a relatively simple question, but I couldn’t find an answer that made sense to me. If I register my unpublished photographs, and at a later time decide publish some of them, put them in my portfolio, sell prints, etc, do I need to re-register these as published?

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