If a photographer registers 500 unpublished images with individual titles, does each image receive individual statutory protection, or is the collection only eligible for one single statutory damage award?
Only derivative works and compilations (including “collective works”) are statutorily limited to one award of statutory damages. See 17 U.S.C. § 504(c)(1) (“For purposes of this subsection, all the parts of a compilation or derivative work constitute one work.”) An unpublished collection is a registration accommodation intended to register a number of individual works in a single application for a single fee. The U.S. Copyright Office’s stated position is that an unpublished collection should not be considered a derivative work, a compilation, or a collective work. Specifically, the Office takes the position that a registration for an unpublished collection covers each work in the collection that is copyrightable. It also takes the position that a copyright owner should be entitled to seek a separate award of statutory damages for each copyrightable work in an unpublished collection, unless the applicant expressly asserted a claim in the selection, coordination, and/or arrangement of those works in the application for the unpublished collection. While the assessment of statutory damages is the domain of the courts, this registration accommodation is intended to register individual works that are assembled together solely for the purpose of registration and not for purposes of creating a collective work. For further information, please see Compendium (Third) Chapter 1100, § 1102.