Property, intangible

I previously wrote about the licensing discussion in Palmer/Kane LLC v. Rosen Book Works LLC, but the decision also points out what is the near impossibility of successfully registering the copyright in a work so that you can actually have a lawsuit claiming it was infringed.

Palmer/Kane originally alleged the infringement of 19 works, but voluntarily withdrew eight of them after the court ordered an the Register of Copyright’s opinion under 17 U.S.C. § 411(b)(2) on the validity of one registration certificate. This opinion evaluates the remaining 11 works, registered in three registrations.

A collection of photographs may be registered in one registration. As described by the court:

Under those rules, group registration of published photographs is permitted only if “the photographs in the group [] have been published within the same calendar year.” 37 C.F.R. § 202.3(b)(10)(iii) (emphasis added). The rules also set forth the procedure an applicant who wishes to register published photographs as a group must follow:

If the photographs in a group were not all published on the same date, the range of dates of publication (e.g., February 15-September 15, 2004) must be provided in space 3b of the [registration] application, and the date of publication of each photograph within the group must be identified either:

(A) On each deposited image;
(B) In a text file on the CD-ROM or DVD that contains the deposited photographic images;
(C) On a list that accompanies the deposit and provides the publication date for each image; or
(D) On a special continuation sheet (Form GR/PPh/CON) provided by the Copyright Office. Dates of publication must be provided in a way that clearly identifies the date of publication for each individual photograph in the group.

Id. § 202.3(b)(10)(iv).

In addition, if each photograph in the group was published within three months of the filing of the application, the applicant may “simply state the range of dates of publication (e.g., February 15-May 15, 2001) in space 3b of the application, without specifically identifying the date of publication of each photograph in the group either on the deposited image or on a continuation sheet.” Id. § 202.3(b)(10)(vi).

Taking one of the registrations as an example, it was issued on February 2, 2005 under the title “Corbis website as uploaded July 2002.” It said in space 3b that the registered photographs were first published in July, 2002. However, Corbis had issued licenses for the subject photographs in the registration in 2000 and 2001, meaning that they must have been published before July, 2002.

Palmer/Kane argued that, instead, these were registrations of the photographs as “compilations,” but the court wasn’t fooled:

This argument is not credible, however, for the simple reason that plaintiff left Space 6 of its registration application – which calls for applicants registering compilations to “[g]ive a brief, general statement of the material that has been added to this work and in which copyright is claimed” – entirely blank…. Where the registration applicant leaves the portion of the copyright registration form pertaining to compilations entirely blank, this constitutes uncontroverted evidence that the photographs were never meant to be registered as a compilation.

I’m ok with the court finding that the registrations were not for a compilation work, a theory that still had hurdles to overcome. As pointed out in a footnote,

Although a compilation need only “display some minimal level of creativity” to be copyrightable, Feist Publ’ns, Inc., 499 U.S. at 358, the “mass registration of photographs” has been found not to satisfy this requirement where plaintiff “simply consolidated all of the photographs she had created over the past seventeen years in a single place, and offer[ed] no evidence demonstrating that she took any further steps to imbue this collection with any sort of original or creative element,” Senisi, 2015 U.S. Dist. LEXIS 160572, 2015 WL 7736545, at *3.

But look how almost impossible it was to get the registration right. First, you have to decide whether the collection is a “compilation” or just a “group” (or, to confuse matters further, they can even be a “single work” as described in 37 C.F.R. § 202.3(b)(4)). Once you decide it’s a “group,” the regulation, not even on the form itself, says that “the range of dates of publication must be provided in space 3b of the application.” But look at the form, there is no place to put a range:

It is surprising that someone wouldn’t know to fill in a range when there isn’t room for it on the form, and instead give only the closing date for the group? Particularly if the included images themselves were dated? And you’re asking someone to puzzle out whether the photographs have been “published,” a status that even the Copyright Office won’t opine on for web-based publications?¹ “Publication” is defined to include “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” 17 U.S.C. § 101. But is that what the ordinary person thinks of as “publication”? I doubt it. Might a misunderstanding about “publication” have played a role?

And who is harmed by this error? Certainly not the defendant; it didn’t rely on the registration status of the photo in making any kind of decision about whether to use it. It would have been nearly frivolous for the publisher to argue that it thought the work was in the public domain when it obtained the photograph from a stock photo licensing house.²

And not the public. One purpose for “encouraging” registration (with the stick being inability to file a lawsuit unless you have one) is to create a “public record of America’s cultural and historical heritage”³ and, indeed, these photographs are now part of that public record — although query how important that actually is when they are not available to the public outside of highly controlled access within the four walls of the Library of Congress, as no deposit materials are.

No, allowing attacks on the registration is litigation fodder, plain and simple. And in this case, successful litigation fodder for eight of the photographs, leaving three standing. The three are the ones for which there wasn’t a retroactive license, as explained in the previous post.

Palmer/Kane LLC v. Rosen Book Works LLC, No. 15-cv-7406 (JSR) (Aug. 30, 2016 S.D.N.Y.)

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