This post is the sixth in a series on Copyright and Photography. Read the first post here, the second post here, the third post here, the fourth post here, and the fifth post here.

The Copyright Office (“Office”) registration process for photographs is both cost effective and relatively uncomplicated, while offering a number of forms to address various objectives. While it is not necessary to register a photograph for it to be protected under copyright, the rewards of doing so in the case of an infringement make filing a registration worthwhile. This is particularly true given the option to file a group of photographs in a single application, therefore minimizing the filing fees and streamlining the registration process.

Under Section 102(a) of the Copyright Act, copyright protection begins at the time a work is fixed in a tangible medium. While not a requirement for copyright, it is best practice to put a copyright notice on all works as soon as possible. A copyright notice can be applied by affixing the copyright symbol, year and authors name on the work itself or through embedded metadata. IPCT data is the relevant metadata for copyright and includes information such as the photographer's name and contact information. The embedded data can be added to photographs through applications like Adobe Photoshop. Even adding a photo credit with the name of the photographer without the date or copyright word or symbol is sufficient. Each option has the practical effect of alerting third parties of ownership and indicating whom to contact should they wish to use or license the work.

Registration is Necessary for Infringement Actions

Under Section 411 of the Copyright Act, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with [title 17].” In 2019, the Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019), resolved a circuit split on the question of whether registration occurs when an application is filed by the copyright owner or only when the Office issues the registration. The Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.” Id. at 886-887. Since, on average, it takes 2.1 months for a registration to be processed and it can take up to six months, filings should occur as early as possible and certainly before third parties have access to the work. One caveat on recovery of damages for an infringement prior to registration is that the photographer must ensure that registration is perfected and the suit is filed within the three-year statute of limitations. 17 U.S.C. § 507.

Registering Groups of Photographs

The Office provides various templates for photographers to register multiple photographs. The only information needed to register both published and unpublished works is the case number assigned to the application by the Office’s electronic registration system, title of the photograph, file name of the photograph, and the month/year of publication for published works.

As of July 2023, registration fees range from $45-$500, depending on the type of work being registered. Registration of a claim in an original work of authorship ranges between $45-$125. For a group of published or unpublished photographs, the fee is $55, while the fee for registration of a database that predominantly consists of photographs is $250. The Office provides various forms and templates to streamline the process, both for the Office and the photographer.

Circular 42, Copyright Registrations of Photographs, provides that to be eligible for group registration:

• All of the works in the group must be photographs. Other works may not be combined with photographs for group registration.
• The works in the group must either be all published or all unpublished. A group registration may not contain both published and unpublished photographs.
• The group must include no more than 750 photographs, and the application must specify the total number of photographs in the group.
• All of the photographs must be created by the same author.
• The copyright claimant(s) for all the photographs must be the same person or organization.
• The group of photographs as a whole must have a title.

There is one additional requirement for registering a group of published photographs:

• All of the photographs must be published within the same calendar year, and the application must specify the earliest and the latest date that the photographs were published.

Group Registrations Versus Compilations in Copyright Infringement Cases

A “compilation” is “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101. When photographs are used in a database, which is considered a compilation (see Copyright Office Circular 65, page 2), the database may have a copyright that is distinct from the registered copyrights of the individual works that make up the database. Photographers need to decide whether to register multiple photographs as a database or as a group registration; in the latter case each photograph maintains its own individual copyright. The Office’s guidance on this point has evolved in response to judicial decisions. As of 2021, the Office has cautioned photographers in Chapter 1100 of its Compendium (see page 103) that “registering photographs as part of a photographic database may limit the copyright owner’s ability to seek certain remedies in an infringement action.” This is because in copyright infringement cases the damages to which a prevailing plaintiff is entitled will depend on whether the infringed images are considered a single infringement of a “compilation” or multiple infringements of individual photographs. The difference can be very significant since, under §504 of the Copyright Act, statutory damages range from $750-$30,000 per work infringed, with damages increasing to up to $150,000 per work for willful infringements. The significant statutory damages per infringement underscores the financial risk of using a photograph without the copyright owner’s permission and serves as both a deterrent to potential infringers and as compensation to the wronged party when actual damages are difficult to prove.

While relevant to the damage determination, the form of registration of photographs is not determinative. This issue was at the heart of the recent decision of the Ninth Circuit Court of Appeals in VHT, Inc. v. Zillow Group, Inc., D.C. No. 2:15-cv-01096 JLR, (9th Cir., Jun. 7, 2023), at 14 (“VHT”). The litigation involved the online display by the real estate company Zillow of thousands of photographs by VHT, the largest professional real estate photography company in the U.S. VHT had group-registered its images as compilations but had also registered the underlying individual images and licensed these images on a per-image or per-property basis. On appeal the Ninth Circuit held that VHT was entitled to an award for each of the 2,700 infringements as opposed to a single award for infringement of a compilation.

In determining whether an infringer has infringed on a compilation or on individual photographs, courts look to see whether the infringer copied “any selection, coordination, or arrangement of the photos from the database” or if the infringer “used each photo independently…[and] selected photos based on the content of the images.” VHT at 15. If the infringer copied the compilation, then courts consider it a singular act of infringement, but if individual registered works were targeted, then each infringement is a separate violation.

If the infringer is targeting individual photographs from the compilation, the injured party may still be entitled to awards for each individual infringement.

In holding that the collective registration covered both the database and the individual photographs within it, [the court] recognized that “[t]he livelihoods of photographers and stock agencies have long been founded on their compliance with the Register’s reasonable interpretation of the statute.” [citing Alaska Stock, 747 F.3d at 686.] If a copyright holder could receive only one statutory award for thousands of infringements housed within a database, Alaska Stock becomes at best an empty gesture and at worst a cruel joke. Id. at 21.

(In Alaska Stock, LLC. v. Houghton Mifflin Harcourt Publishing Company, 747 F.3d 673 (9th Cir. 2014), the court had held that collections and compilations may extend copyright to individual photographs when the photographers assigned their ownership of the copyright in their images to the stock agency and the agency registered its compilation.) The photographs used by VHT were part of a compilation, but the court and jury looked at how the photographs were registered, as well as “the extent [of] the independent economic value of the individual photos separate from the database” and “the jury’s finding indicated that the individual images were individual works.” Id. at 12.

Thus, while the form of registration may inform the analysis of the court, ultimately the question of what constitutes a compilation is a matter of law and fact and determined by statutory definition. Id. at 22. In VHT, the court concluded that Zillow used individual images and did not infringe on the database as a whole.

Conclusion

Lutzker & Lutzker routinely advises photographers on how to effectively register their works and counsels clients on copyright licensing, enforcement and infringement litigation.