Final Rule Adopted to Remove Personally Identifiable Information from Registration Records

The U.S. Copyright Office issued a final rule to allow authors and claimants to replace in or remove from the Office’s online registration catalog personally identifiable information (PII). This rule allows authors, claimants, or their authorized representatives to pay a fee and request the removal of certain PII requested by the Office and collected on registration applications, such as names, home addresses, or personal phone numbers. The PII will be removed from the Office’s Internet-accessible public catalog but retained in the Office’s offline records as required by law. The rule also codifies an existing practice that removes extraneous PII free of charge, such as driver’s license numbers, social security numbers, banking information, and credit card information, whether by the Office’s own volition or upon request by authors, claimants, or their authorized representatives.

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Take Survey to Provide Info on Copyright Registrations

As previously reported, the U.S. Copyright Office is reviewing the rules on group registration of photographs, group registration of contributions to periodicals, and supplementary registration. In response, several photography organizations:

  • American Photographic Artists
  • American Society of Media Photographers
  • National Press Photographers Association
  • North American Nature Photography Association
  • Professional Photographers of America
  • PLUS Coalition

are conducting a 15-question survey to collect, collate, and provide information to the Copyright Office on these important issues. Participate in this survey by midnight EST January 21, 2017, so that the Copyright Office can hear your voice.

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Copyright Office Extends Comment Period in Rulemakings on Supplementary Registration, Group Registration of Photographs, and Group Registration of Contributions to Periodicals

The U.S. Copyright Office is extending the deadline for submitting written comments in response to three notices of proposed rulemaking on supplementary registration, group registration of photographs, and group registration of contributions to periodicals. These notices were published in the Federal Register on December 1, 2016. Written comments on each proposal are now due no later than 11:59 p.m. eastern time on January 30, 2017.

Additional information on the rulemaking involving supplementary registration, including instructions on how to submit a comment, is available here.

Additional information on the rulemaking involving group registration of photographs is available here.

Additional information on the rulemaking involving group registration of contributions to periodicals is available here.

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The U.S. Copyright Office Proposes New Rules for Registering Photographs

The U.S. Copyright Office today published three notices of proposed rulemaking, which are summarized below.

Supplementary Registration: The U.S. Copyright Office is seeking public comments on proposed amendments to its regulation governing supplementary registration. Under the proposed rule, most applicants will be required to submit an online application in order to correct or amplify the information set forth in a basic registration. In addition, the proposed rule will update and codify certain practices that are set forth in the Compendium of U.S. Copyright Office Practices, Third Edition, and improve the readability of the regulation. The Notice of Proposed Rulemaking and instructions on how to submit a comment in this proceeding are available here.

Group Registration of Photographs: The Office is seeking public comments on proposed amendments to its regulation governing the group registration option for published photographs. In addition, the Office is proposing to create a new group registration option for unpublished photographs. Under the proposed rule, applicants will be required to submit an online application and will be allowed to include up to 750 photographs in each submission. The proposed rule will amend the deposit requirement for photographs and photographic databases by requiring applicants to submit their works in digital form. Finally, it will memorialize the Office’s longstanding position regarding the scope of a group registration of photographs. The Notice of Proposed Rulemaking and instructions on how to submit a comment in this proceeding are available here.

Group Registration of Contributions to Periodicals: The Office is seeking public comments on proposed amendments to its regulation governing the group registration option for contributions to periodicals. Under the proposed rule, applicants will be required to file their claims through the electronic registration system and upload their contributions in a digital format. The proposed rule will modify some of the eligibility requirements for this group option. It will confirm that the Office may refuse registration or cancel a group registration if these requirements have not been met. And it will memorialize the Office’s longstanding position regarding the scope of a group registration for contributions to periodicals. The Notice of Proposed Rulemaking and instructions on how to submit a comment in this proceeding are available here.

Written comments must be received no later than January 3, 2017, at 11:59 p.m. Eastern Time.

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Don’t Get Your Copyright Advice from Mr. Wonderful

On Shark Tank last Friday, an entrepreneur with a clothing design business reported that a third-party company had copied her t-shirt design, which later was sold at Target. Target removed the shirts from its stores after the designer complained.

Mr. Wonderful (Kevin O’Leary), then asked, “Did you copyright your design?” The designer replied, “I had not at the time . . . .” Mr. Wonderful then asserted “So they really hadn’t broken any law at the time.”

~WRONG!~

A work is protected by copyright “when fixed in a tangible medium of expression.” Even if the work is never registered with the U.S. Copyright Office, the copyright exists and is protected by copyright law. So, once the designer printed her t-shirt design, she owned a copyright and likely would be entitled to the profits that Target and the third-party company obtained from the infringing sales.

If a copyright for a work is registered, the owner gets additional benefits such as the option to recover statutory damages for infringements and the inference that the person who registered the copyright is the owner.

During the show, Shark Lori Greiner then added, “. . . it’s a great lesson, though, in knowing that when you have unique designs, copyright them. It’s not a lot of money to do so.”

Good advice, Lori, except it’s better to call it “registering” your copyright. If copyright owners tell others that they are “copyrighting” their works when they actually are registering them, others may believe that the works are not protected until that time.

To best protect your works, register your copyrights today (and refer to it that way).

 

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Do You Want to Remove Your ID Info from Copyright Office Records?

The U.S. Copyright Office today published a Notice of Proposed Rulemaking (“NPRM”), seeking public comment on proposed new rules related to personally identifiable information (“PII”) that may be found in the Office’s registration records. First, the proposed rule will allow an author, claimant of record, or the authorized agent of the author or claimant of record, to request the removal of certain PII that is requested by the Office and collected on a registration application, such as home addresses or personal phone numbers, from the Office’s internet-accessible public catalog, while retaining it in the Office’s offline records as required by law. Second, the proposed rule will codify an existing practice regarding extraneous PII that applicants erroneously include on registration applications even though the Office has not requested it, such as driver’s license numbers, social security numbers, banking information, and credit card information. Under the proposed rule, the Office would, upon request, remove such extraneous PII both from the Office’s internet-accessible public catalog and its offline records.

The Notice of Proposed Rulemaking and instructions on how to submit a comment are available here. Written comments must be received no later than October 17, 2016, at 11:59 p.m. Eastern Time.

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Copyright Office Adopts “Mailbox” Rule for Appeals to Refusals to Register

The U.S. Copyright Office is changing the deadline for submitting requests to reconsider refusals to register a copyright claim. Previously, a reconsideration request had to be received by the Office, via mail, no later than three months after the Office issued its decision to refuse registration. This rule has created some uncertainty, as it can be difficult to predict when a request will physically be received by the Office, particularly given security-screening-related delays in the processing of mail. Accordingly, to provide greater certainty to applicants, the amended rule provides that reconsideration requests only need to be postmarked (via the U.S. Postal Service) or dispatched (via commercial carrier, courier, or messenger) no later than three months after a refusal is issued.

The Final Rule is available here.

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The Benefits of Registering Your Copyrights

Eagle Screech - Copyright Carolyn E. Wright

Copyrights for photographs are created at the click of the shutter. Even if you never register the copyright, it is protected by copyright law.

But there are benefits to registering your copyrights, which include:

• Registration establishes a public record of your claim of copyright.

• You must register the copyright (if it is of U.S. origin) before you can file a copyright infringement lawsuit.

• If you register the copyright before or within five years of first publication, your registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

• If you register the copyright within three months after first publication of the work or prior to an infringement of the work, you may recover statutory damages and attorney’s fees in a copyright infringement lawsuit. Otherwise, you are eligible only an award of actual damages and profits.

• Registration allows you as the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

You may register your copyright at any time during the life of the copyright. While the law was different before 1978, you do not need to register the copyright again when the work becomes published (although you may register the published edition, if desired).

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Good Tip on Registering Groups of Photographs

Steve Martin - © 2010 David Oppenheimer

Steve Martin – © 2010 David Oppenheimer

Most photographers realize the importance of registering the copyrights to your photographs. What’s also important is to register them correctly and to maximize the potential for damages if infringed.

David Oppenheimer is a professional photographer who shoots a lot and regularly registers his work. David recently reviewed the Compendium, including where it discusses statutory damages:

For example, when a website consisting predominantly of photographs is registered as a compilation, a court may issue only one award of statutory damages for all the photographs covered by that registration. That is not necessarily the case, however, if the photographs are (i) unpublished and are registered as an unpublished collection (if no selection or arrangement is claimed), or (ii) are published and are registered using the group registration option for groups of published photographs. See 37 C.F.R. § 202.3(b)(4), (b)(10). Thus, if the applicant only intents (sic) to register individual works on a website, such as an unpublished collection of photographs the applicant may want to include a statement in the application that the claimant claims no authorship in the selection, coordination, and/or arrangement of works within the website. When completing an online application this statement may be provided in the Note to Copyright Office field. 

Compendium Section 1008.7

David therefore included this note with his most recent registration of unpublished photos:

Individual works are being registered as an unpublished collection with no authorship claimed to the selection, coordination, and/or arrangement of the individual unpublished works being registered.

The registration specialist at the Copyright Office told him it was a good idea.  Way to go, David!

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The Best (and Free!) Resource on Copyright Law

Tricolor Heron on Stump

Register of Copyrights Maria A. Pallante released late last year the official version of the Compendium of U.S. Copyright Office Practices, Third Edition, available on the Office’s website at http://copyright.gov/comp3/.

The Compendium serves as a technical manual for the Office’s staff, as well as a guidebook for authors, copyright licensees, practitioners, scholars, the courts, and members of the general public. More than three times the size of the previous edition, the Third Edition represents a comprehensive overhaul and makes the Office’s practices and standards more accessible and transparent to the public.

As in the past, it addresses fundamental principles of copyright law, such as creation, publication, registration, and renewal. It addresses routine questions such as who may file an application and who may request copies of the Office’s records. It describes recent changes to the Office’s recordation practices, such as the new option for submitting titles and registration numbers in electronic form. It also contains a new Table of Authorities that lists the cases, statutory provisions, and other legal authorities cited in the Third Edition and the relevant section where each citation may be found.

Check some of these nuggets found in the Compendium:

  • Although registration may be made at any time before a copyright expires or any time before bringing an infringement action in federal court, the U.S. Copyright Office strongly encourages copyright owners to submit their works for registration in a timely manner. As discussed in Section 202, a registration is a prerequisite for seeking statutory damages and attorney’s fees in an infringement action. To pursue these remedies, an unpublished work must be registered before the infringement occurs, while a published work must be registered within three months after publication or before the infringement occurs. See 17 U.S.C. § 412.
  • The U.S. Copyright Office has established an administrative procedure that allows an applicant to register a number of unpublished works with one application, one filing fee, and one set of deposit copies. This is known as the “unpublished collection” option. A registration issued under this option covers each work that is submitted for registration. It may also cover the compilation authorship (if any) involved in selecting the works and assembling them into a collective whole, provided that the applicant expressly claims that authorship in the application. See 37 C.F.R. § 202.3(b)(4)(i)(B). When no selection, coordination, or arrangement is claimed, the Office considers each work to be individually registered for purposes of statutory damages.
  • Many websites are frequently updated and may change significantly over time. A website may add content every hour, day, week, month, or year. To register a claim with the U.S. Copyright Office it is important to identify the specific version of the work(s) that will be included in the claim. As a general rule, each version of a work may be registered as a separate work if the version contains a sufficient amount of new, copyrightable authorship. See 17 U.S.C. § 101 (stating that “where the work has been prepared in different versions, each version constitutes a separate work”). A registration for a specific version of a work covers the new material that the author contributed to that version, including any copyrightable changes, revisions, additions, or other modifications that the author contributed to that version. But as discussed in Section 1008.2, the registration does not cover any unclaimable material that appears in that version, including any material that has been previously published or previously registered with the Office. Therefore, if the version contains an appreciable amount of content that has been previously published and/or previously registered, the applicant should exclude that material from the claim.

Example: • Sam Bavard operates a duck hunting website called “Animal Quackers.” Every three months Sam revises the website by adding new text and photographs. When Sam submits an application to register the latest version of the site he limits the claim to the “new text and photographs” that he added to the site, and he excludes the photographs and text that were previously registered with the Copyright Office.

There is much more helpful information in the Compendium.  Check it out and refer to it often.

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