- Posted on: Feb 20 2014
Registering an entire album of music or a group of several photos saves money on filing fees. However, it also limits potential damages if your works are infringed.
In the internet age, where digital music and image files are rapidly and easily shared, copyright protection is extremely important to musicians and photographers. Even though the filing fees for a copyright registration are relatively inexpensive, for a prolific musician or photographer who creates dozens or possibly hundreds of songs or photos, those fees can add up if the artist seeks registration of every song or every photograph. Rather than having to choose to register some works and leave others unregistered, the U.S. Copyright Office offers artists another alternative: registration of a group or collection of many works together under a single registration. This alternative enables an artist to register more works for significantly reduced filing fees, but artists should be aware that there are also some practical limitations to this approach if the works are later copied without permission.
The Mechanics of a Group Copyright Registration
Not all photos or songs can be grouped together in a group registration. Although the rules vary slightly with respect to different types of works, generally works may only be grouped together in a single registration if they all have the same publication status and if they all have the same owner or author(s). However, some of these concepts have a special meaning under U.S. Copyright law.
- What Is “Publication” Under US Copyright Law? A work has been “published” under US Copyright law if it has been distributed to the public by sale or other transfer of ownership such as lease or rental, or if it has been offered for sale. However, a public display of a work, without more, actually does not constitute “publication.” Therefore, uploading a song for sale on iTunes or a band’s website is a “publication.” But uploading a photo to Flickr or some other photo sharing site would only be a “publication” if the site also offers to sell or license the photo.
- Who Is a Copyright Owner? The owner of a copyrighted work is the person or company that holds the copyright rights. This is usually the author, photographer, or musician that created the work, but not always. A work created by an employee as part of his or her job duties is usually owned by the company. Also, an artist can assign or transfer his or her rights, as in the case of a musician that transfers rights in songs to a record label through a recording contract.
- Who Is the Author of a Copyrighted Work? The author is the person or persons who created the work, except in cases in which an employee creates a work as part of his or her job duties. However, each and every person that makes a creative contribution to a work is a co-owner of the work. This issue does not often arise in the context of photography, but in music, all members of a band that contribute to the writing or performance of a song may be co-owners if there is no contract or employment arrangement that would transfer those rights.
With these definitions in mind, we can now look at the specific rules for the group registration of photographs and musical works. If the works have not been “published,” the rules are the same for photos and songs. A group of unpublished photographs or songs may all be filed in a single group registration if:
- All of the photos or songs have the same “author,” or, if there are multiple “authors,” they all have at least one author in common.
- All of the photos or songs have the same copyright owner.
If the works have been “published,” the rules differ slightly for photos and songs. A group of published photographs may all be filed in a single group registration if:
- All of the photos were taken by the same photographer. Note that this requirement is different from who is the “author”; even if the “author” of all photos is the company that employs several different photographers, each employee-photographer’s work must be separate from all other employee-photographer’s works.
- All of the photos were “published” in the same calendar year.
- All of the photos have the same copyright owner.
And a group of published songs may all be filed in a single group registration if:
- All of the songs have the same copyright owner. As discussed above, the co-ownership issues that arise in the context of a musical band with multiple members can severely complicate these issues. Accordingly, many experienced entertainment attorneys advise bands to form an LLC or corporation to manage their copyrights or to have a “work for hire” agreement in place to centralize copyright ownership.
The Limitations of a Group Copyright Registration
The advantages of a group registration should be fairly obvious: significant cost savings on filing fees and significant time savings in the preparation of copyright applications. However, major record labels still typically file each song on an album as a separate registration, rather than taking advantage of the cost savings of a group registration. This is because filing multiple photographs or songs under a single group registration potentially limits the copyright owner’s remedies if the works are later infringed or copied without permission.
In reality, most copyright infringement cases related to music are filed my major record labels, and most infringement suits related to photographs are filed by large publishing companies. However, even though a small business or independent artist may not have the financial resources to pursue an infringement lawsuit to trial, the issue of potential remedies is still relevant because it can make a copyright holder’s “cease and desist” letter or settlement demand more persuasive. This is because the U.S. Copyright law provides for “statutory damages” if a copyright owner proves that there has been an infringement of a registered work. This means that, if a registered work is infringed, the copyright owner is entitled to recover anywhere between $750 and $150,000 even if the copyright owner cannot prove how much the infringement has cost him or her.
These “statutory damages,” as well as the availability to recover one’s attorneys’ fees in copyright infringement suits, can be very persuasive in getting an infringer to agree to cease the infringing conduct and potentially agree to a monetary settlement. However, a group registration can limit the persuasiveness of these potential remedies by limiting the potential statutory damages that the copyright owner can seek. The statutory damages provision of the U.S. Copyright Act allows only one statutory damages award per registration, regardless of how many infringements have occurred. Accordingly, if an entire album of music has been copied without permission, a major record label that had registered all fifteen tracks of an album separately could seek fifteen statutory damages awards, while an independent artist that filed a group registration for the entire album could only seek one statutory damages award.
In this way, an artist’s registration strategy can affect the persuasiveness of a settlement demand and potentially the settlement value of the copyright owner’s claim. Of course, an independent artist or small business must often be cost conscious, and in all cases, having a federal registration is better than not having one, in terms of preventing and stopping infringing conduct. But all artists should carefully consider the costs and benefits of the group registration mechanism before deciding on a strategy for protecting valuable intellectual property.
Posted in: Intellectual Property