There is a rash of lawsuits brought by photographic agencies against textbook publishers, claiming that the publishers underreported the number of copies of books that were published. The publishers are fighting back and there are two main grounds for attack—that the requirements for registration were not met and that the individual photographers’ assignments to the agency were ineffective.
In Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., Houghton Mifflin attacked the practice of group registration of copyright. In any given application, Alaska Stock registered hundreds of photographs taken by dozens of photographers as a compilation work. Alaska Stock listed in the application the name of three, but not all, photographers, and listed the title of the compilation work but not the titles of the individual photographs. The lower court held that the only thing registered was the compilation work itself, not the copyright in the individual photographs, and dismissed the suit.
The Court of Appeals for the Ninth Circuit has, thankfully, reversed, and for good reason—Alaska Stock had registered the copyrights in exactly the way that the Copyright Office told them to do it:
In 1995, a trade association of stock agencies, Picture Agency Council of America, Inc., met with the Register of Copyright (the head of the Copyright Office), her Chief Examiner, and other Copyright Office staff, to work out how to register large catalogs of images. The Register agreed that a stock agency could register both a catalog of images and the individual photographs in the catalog in one application if the photographers temporarily transferred their copyrights to the stock agency for the purposes of registration.
The trade association confirmed this with the Copyright Office in writing, and advised its member stock agencies…. The Copyright Office provided a letter to the trade association telling it how stock photo catalogs ought to be registered. The letter says that listing only three individual photographers by name, followed by the phrase “and x [number] others,” and naming the agency as owner of the copyrights was “acceptable when the accompanying deposit copies are catalogs consisting of photographs.” A copyright examiner would interpret such filings to mean that the claim being registered would include the catalog and “extend also to the photographs themselves.” … Though the office had a “preference” for naming all the authors, the Copyright Office letter says that it is “just that—a preference but not a requirement.”
The district court had this information, but nevertheless considered the Copyright Office policy inconsistent with the requirements for registration in the Copyright Act. The district court held that the statute required identifying the name of every photographer and the title of every work contained in the compilation.
The Ninth Circuit disagreed. It found that the requirements for identifying the “author” and “title” was a reference to the author and title of the compilation work, e.g., “Alaska Stock CD catalog 4” as the title and “Alaska Stock, LLC” as the author. Then, “[w]here, as here, the photographers have assigned their ownership of their copyrights in their images to the stock agency, and the stock agency registers the collection, both the collection as a whole and the individual images are registered.” The Second, Third Fourth, Fifth Circuits and Nimmer on Copyright are in accord with this principle.
Thus, we conclude that Alaska Stock successfully registered the copyright both to its collections and to the individual images contained therein…. The procedure applied for over three decades by the Register of Copyrights to registration by stock photo agencies complied with the statutory requirements and did not violate any clear requirement to list individual authors and titles of the components within the work. While arguably the statute could be read otherwise, the Register of Copyrights’ reading that a collection of stock photos may be registered without individual titles, and without naming more than three of the authors and merely designating the number of authors, pursuant to an assignment in the language Alaska Stock used, was reasonable and persuasive.
For administrative law fans, while the Copyright Office policies are not entitled to Chevron deference, there is also the principle that “an administrative interpretation upon which private actors have relied aids in construction of a statute precisely because private parties have long relied on it.”
We are not performing a mere verbal, abstract task when we construe the Copyright Act. We are affecting the fortunes of people, many of whose fortunes are small. The stock agencies through their trade association worked out what they should do to register images with the Register of Copyrights, the Copyright Office established a clear procedure and the stock agencies followed it. The Copyright Office has maintained its procedure for three decades, spanning multiple administrations. The livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the statute. Their reliance upon a reasonable and longstanding administrative interpretation should be honored. Denying the fruits of reliance by citizens on a longstanding administrative practice reasonably construing a statute is unjust.
I’m hoping this opinion has a reach further than just the identification of titles and authors in compliation works. I’ve spoken in the past about how impossible it has become to satisfy both the Copyright Office and the courts; hopefully this is the beginning of the correction.
Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., No. 10-36010 (9th Cir. March 18, 2014).
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