Monday, October 23, 2017
 

Guest Post: Copyright Registration Strategies


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By Talia Kosh, Esq.

In my last blog post, “Is the Copyright Office Inflating the Need For Orphan Works Legislation?” my main discussion points there were few, if any, comments about the substantive opinions presented. But a few readers did have issues with my conclusory statements wherein I characterized copyright registration as “cheap and easy.” In one respect, I admit, I shouldn’t refer to anything as “cheap and easy” these days, as it is a wholly inaccurate description of pretty much everything. So, let me qualify this-it is cheap and easy compared to the costs and difficulty in protecting other kinds of intellectual property, like patents and trademarks. Copyright registration is something most artists can experiment without legal assistance and great cost, outside of more complex registration questions. However, this does not really help individual artists or small businesses who produce a lot of content. So let’s break it down and then you can make your own conclusions about how cheap and easy it is, depending on what type of content you are registering. At the very least t it can help you get strategic about what you choose to register, if anything at all. And what I state here will probably raise even more questions, but let’s dig in.

Reader and blogger, Edward Hasbrouck, was one of the commentators on my last post, and questioned my assessment of copyright registration being cheap and easy. He tweeted, Registering copyright in Website or blog w/daily updates or Twitter feed, Facebook timeline requires separate fee for each day of pub. Total $12K + per year.  Another reader stated, I represent a creator who has 8,000 creative works. At $35 a registration, the cost is $280,000. Getting documentation of first publication will take hours of research traveling to libraries to go through microfiche to find long bankrupt publications. The cost to hire someone to do this could run in the thousands too. If I register via the yearly publication fee, the process of filling out each form takes about an hour and costs $85 x 28 years = $2295 plus the labor costs of about $500 but doesn’t provide as much protection against works getting orphaned due to the mass grouping. There’s a lot of important issues raised by these readers, which I will attempt to address in this post.

To Register or Not to Register. Is that the Question?

It is assumed that registration is preferable over non-registration, but I don’t want to start off on any assumptions. Especially after receiving important feedback on a panel series I organized last year through New Mexico Lawyers for the Arts entitled, “The Artist as Entrepreneur.” On this panel, there were no “experts” opining on what artist “should” be doing in their practices to emulate the entrepreneur. Far too often, I think the entrepreneurial and traditional business models are forced upon artists without enough conversation about the creative difference. Instead, I wanted to explore only the businesses and lives of successful, professional visual artists and whether they had adopted entrepreneurial management systems for their businesses, or even whether they considered themselves entrepreneurs-a few of them did not. At any rate, what was the most shocking discovery that emerged was that not one of these professional and successful artists bothered with or was interested in copyright registration. They were not worried about appropriation- they felt it was a minimal issue in their business strategy and not a hindrance to their success or income streams. This is another blog post altogether, but the lesson here is, you don’t have to register your works to be a financially successful artist. It is a choice. While it does supersize your rights in the event of an infringement, there are plenty of successful artists out there who feel like registration is a waste of time and have no interest in pursuing infringement actions. But I would argue, if you chose not to register, it should be a conscious choice, or a part of an overall strategy for your business-selecting certain works to protect and others to be freely shared, perhaps even experimenting with a Creative Commons license on certain works.

Registration versus Deposit

If you do see the value in registration, but the cost and time-consumption is what is stopping you, then keep reading. First, I want to address the confusing issue of copyright registration versus the duty to deposit copies with the Library of Congress. Many may not know that each creator already has an affirmative duty to deposit the two “best” copies of a published work with the Library of Congress, even if those works are not registered with the Copyright Office. And they can fine you if you don’t deposit. This has actually been the rule since 1870 when President Ulysses S. Grant signed a law that required that two copies of every book, pamphlet, map, print, photograph and piece of music registered for copyright be deposited in the Library. Circular 7D from the United States Copyright Office states, “All works under copyright protection that are published in the United States are subject to the mandatory deposit provision of the copyright law.” Both examples from readers, discussed above, could be considered to be covered by this “published works” provision.

These “deposit copies” are to be filed within three months of the first U.S. publication date. The failure to file these deposit copies may result in a demand of copies from the Library of Congress and the imposition of fines and additional expenses for not complying, ranging from $250 to $2500 per work. Now, the Library of Congress doesn’t often respond to noncompliance with fines, or even enforcement, but they have the power to do so. With regard to the issue of orphan works, this could very well be a way to get out from under the orphan works issue without actually having to pay to register your copyright-if registration is sounding too expensive. Exceptions aside, a work on deposit with the Library of Congress could not be considered an orphan work, as long as the owner of the work keeps updated their contact information. So if you’re solely worried about the orphan works issue, then you should deposit copies with the Library of Congress.

However, considering the circumstances of the two readers mentioned above, regarding more prolific bodies of work, submitting two of the best copies of each work could still be a great burden. And if you want the protection that comes along with registration, then one has to turn to developing a strategy regarding registration and deposit, so that priority works are selected for registration, and a financial decision is made whether to wait to take action on the remaining works unless one receives notice of an infringement, understanding that, for published works, this will limit your recovery to actual damages versus statutory damages.

Registering Online Content

Regarding such registration strategy considerations, let’s take the example of someone wanting to register their daily Twitter feed or Facebook timeline, as was suggested by one reader. Exceptions aside, I would argue that this strategy is unnecessary and generally not a strategy worth pursuing. First, one must ask, what would be the benefit of registering social media timelines or feeds? If there were valid reasons for this, even then you must remember, you would have to except from registration work that is not yours, including any third party content, or “facts” which make up a large amount of what is shared in social media feeds and timelines.

If your purpose for registering copyright in your social media feeds and timelines would be to prevent others from using your content without your permission, think twice. Fair use would, in many instances, still allow them this right if they are commenting on or critiquing your work, especially for noncommercial gain. Additionally, this proprietary mindset ignores the incredible benefits that come with others sharing your content. You can keep swimming upstream against the rapidly-developing sharing economy, but is this actually helping your business strategy? Would it negatively affect your reputational value by trying to prevent others from sharing information in your feeds? If you want to engage in this battle, you could be spending a lot of time and money fighting something that is seen by many as an instrumental (and free) marketing tool, allowing potential clients to discover you- someone they otherwise may never know. As Tim O’Riley states, “Obscurity is a far greater threat to authors and creative artists than piracy.”

But let’s say, for the sake of this post, that you share only original content on social media and you still want to pursue registering such content. You would need to register this content within three months of publication to take advantage of statutory damages. Let’s look at the actual costs of registration and talk about some tricks and tips that might reduce your filing fees.

Online works such as websites, blogs, timelines and feeds, are a challenge to register because they are typically updated frequently, with content changing regularly. Instead of filing a single application for each separate day, as was suggested by one of our readers, one strategy that has been suggested by some, including Sarah Bird on moz.com and Stephen Fishman in “The Legal Guide to Web and Software Development,” is to register your website, blog or feed and then every three months register the updated version as a derivative work, so that you are registering a revised version every three months. That would be $35 every three months.  Examples of the description you would want to use when you file this derivative work would include, “editorial revisions” and “revisions and additional text.” For the initial registration, use words that are associated with copyrighted works; instead of describing your registration as only “a website” use words like “text and photographs,” “artwork,” “audiovisual material,” “HTML code,” etc. See “Legal Guide to Web & Software Development,” by Stephen Fishman.

Registering Multiple Works In A Single Application

Outside of this derivative work strategy, there are several ways to register multiple works under one application. I wont speak to all of them in this post, but some of the more relevant categories include:

(a) As a Collection of unpublished works. ($35-$55)
(b) As a Single Unit of published works ($35-55)
(c) As a Group Registration for published photographs ($55-$65 fee)
(d) As a Group for contributions to periodicals ($85)

A. Registering Multiple Unpublished Works as a Collection

You can register an unpublished series of paintings or a collection of jewelry designs, for example, as a collection, which is far more affordable than registering each of them individually, and there is no limit to the number of images you can register at one time. What if there has been a questionable publication regarding some of the works? Interestingly, when registering a collection there is no requirement that pre-existing or published individual works be identified in the registration, unless they are derivative works. Therefore,  it would not invalidate the entire registration, but only unpublished works would be covered in this filing. See Eyel v. Jewelex New York, Ltd.
For this to work, the copyright claimants must be the same for all works, they must be organized in some kind of order, and the combined elements of the collection must bear a single title identifying the collection as a whole. See 37 C.F.R. 202.3(b)(3)(i)(B). Choose an overall succinct title that will identify the collection as a whole. The copyright office doesn’t provide detailed examples of what cannot qualify as a collection, but the qualifications are fairly broad. If your unpublished works are in some form of order and you can identify a broad, common title, it might be worth experimenting with this option.
The registration will show one year of creation for the entire collection, which should be the year that the last work in the collection was finished. It does not matter if some of the works in the collection were completed earlier.

B. Registering Multiple Published Works as a Single Unit

All copyrightable elements that are included in a single unit of publication and in which the copyright claimant is the same can be considered a single work for registration purposes. See Circular 40 at copyright.gov. All works in the group have to be published at the same time. This requirement makes it a bit more difficult to qualify works under this option-unless you are publishing all your works on the web at the same time, or in a book or catalogue, for example.

I know some of you will say, but if you file in a group, it weakens the copyright in each individual work. This is not true.  In Carell v The Shubert Org., 104 F. Supp. 2d 236 (S.D.N.Y. 2000) the court held that group registration does not prevent a copyright owner from bringing a claim for infringement as to individual designs within the group. See also, Woods v. Universal City Studios, Inc., 920 F. Supp. 62 (S.D.N.Y. 1996)( registration of copyright for collective work satisfies requirements of 17 U.S.C. Section 411(a) to bring copyright infringement action based on constituent parts where owner of copyright for collective work also owns constituent parts.

C. Group Registration of Published Photographs

You can register a group of published photographs or images under a single application as a group if all the images were published in the same calendar year, with the same author and the same copyright claimant for all images.  This makes it easy for stock photographers, for example, to register hundreds of images every quarter with a single filing fee.

D. Group Registration of Contributions to Periodicals

While this normally applies to written works, it can also apply to works like cartoon strips, photographs, drawings and illustrations if  all the works have the same claimant and author, the author is an individual and all works were published in the same 12-month period. You must identify each contribution separately, including the periodical and date. This will not work for blogs, but it would work for freelance writers, for example.

As you can see, there are a number of registration options. If you decide to register multiple works in one of the ways outlined above, I would suggest doing a bit more research and inquiry to determine whether your works qualify under that registration option. Whatever strategy you choose to pursue with protecting and sharing your content, view experimentation as a key element of that strategy. The feedback that can come from experimentation is priceless.


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Talia Kosh holds a J.D. from Loyola University New Orleans College of Law and an LLM. in International Law from American University. Talia practices law in Santa Fe with The Bennett Law Group and is Founder and President of New Mexico Lawyers for the Arts, counseling and educating artists on a wide variety of legal issues. Talia also serves on several nonprofit boards, as well as the Governor’s Counsel of Film and Media Industries, and as past Chair and board member of the Intellectual Property Section of the New Mexico Bar . Talia also teaches at Santa Fe Community College and University of New Mexico’s Continuing Education Program. She received the Santa Fe Mayor’s Award for Excellence in the Arts in 2014. The views expressed by Talia are hers and not those of any entity and/or organization.

 

 

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