If a photographer registers 500 images using either the group registration for published or unpublished photographs, does each image receive individual statutory protection, or is the group only eligible for one single statutory damage award?
The U.S. Copyright Office offers two group registration options for photographs: group registration for unpublished photographs (GRUPH) and group registration of published photographs (GRPPH). Under the Copyright Act, there is typically only one statutory damage award per work infringed. This causes many creators to question how statutory damages are awarded when multiple works are registered together in a group registration, or make up parts of a compilation or derivative work. With respect to group registrations, each individual photograph is considered to be its own “work” and eligible for statutory damages. On the other hand, 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.”).
In 2019, the U.S. Copyright Office replaced its unpublished collections option with a group registration for unpublished works (GRUW), where up to 10 unpublished works can be registered for a single fee. But, the GRUW does not replace photographers’ option to register up to 750 photos with one application and one filing fee using the group registration for unpublished photographs (GRUPH). To qualify for the GRUPH option, all included works must be unpublished photographs created by the same author or joint authors, with the author or joint authors named as the copyright claimant for each work.
All photos included in this group registration option must be unpublished. According to the Copyright Act, publication occurs when works are offered to the public by sale or other transfer of ownership, including rental, lease, or lending. An offer to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, also constitutes publication. A public performance or display of a work is not, in and of itself, publication.
The Copyright Office also offers group registration options for published photographs, collective works, serials, newspapers, newsletters, contributions to periodicals, database updates, and secure test items. Each of these group options is intended to register the specific works or the specific issues within each group, with the exception of a group registration for the periodic updates to databases which must satisfy the requirements of a compilation and/or derivative work.
With the group registration of published photographs (GRPPH), photographers can register a large number of works individually with a single application and fee. Like with the group registration for unpublished photographs option, all included works must be created by the same author or joint authors, with the author or joint authors named as the copyright claimant for each work.
The U.S. Copyright Office’s stated position is that a group registration for published or unpublished photographs should not be considered a derivative work, compilation, or collective work under section 504(c)(1) of the Copyright Act. Further, the Copyright Office does not view a group registration as covering the selection and arrangement of the works. The Office takes the position that a group registration covers each photograph in the group that is copyrightable, and a copyright owner should be entitled to seek a separate award of statutory damages for each copyrightable photo covered by a group registration, unless the applicant expressly asserted a claim in the selection, coordination, and/or arrangement of those works in the group application.
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, §§ 1104.4, 1116.