Tag: group-registration

Registration of a group of works or unit of production

Copyright Registration and Management Services

There is now an inexpensive, intelligent alternative to “copyright mills” that is creator-friendly as well as a time-saver for attorneys.

In the United States, as in most countries, it is possible to own a copyright without registering it. Copyright registration is not a prerequisite to copyright protection. Rather, a copyright comes into being when a human being fixes original, creative expression in a tangible medium (or when it is fixed in a tangible medium at a human being’s direction.) Nevertheless, there are important reasons why you should register a copyright in a work you’ve created, particularly if you live in the United States.

Reasons for registering copyrights

If you live in the United States, the most important reason for registering a copyright is that you will not be able to enforce it unless you do. As a condition of filing an infringement claim in court, the United States Copyright Act requires a copyright owner to have applied for registration and received either a certificate of registration or a denial of registration from the U.S. Copyright Office. Registration is not a prerequisite to serving a cease-and-desist letter or a DMCA take-down notice. If you want to enforce your copyright in court, though, then you will need to register it.

This is true, as well, of infringement claims filed in the new Copyright Claims Board (sometimes called the “copyright small claims court” or “CCB”). It is not necessary to have received either a registration certificate or denial letter from the Copyright Office before filing a claim with the CCB. It is necessary, however, to have at least applied for registration before filing a claim.

Prompt registration is also important. You may not be able to recover statutory damages and attorney fees in an action for copyright infringement unless you registered the copyright either within three months after first publication or before the infringement began.

Registration gives you the benefit of a legal presumption that the copyright is valid. It also gives rise to a presumption of ownership, and that all of the other facts stated in the certificate (date of creation, etc.) are true.

Registration is not only critical to enforcement; it is also an important defensive strategy. If someone else registers the work and you do not, then they get all of the benefits described above and you do not. As the original creator of a work, you do not want to find yourself in the position of being sued for “infringing” your own work.

Registration workarounds that aren’t

The “poor man’s copyright”

One dangerous myth that has been circulating for years is that simply mailing yourself a copy of your work will be enough to establish your rights in it. This is not true. Anybody can make a copy of someone else’s work and mail it to himself or herself. Even if doing that could establish a person’s rights in a work, it is still going to be necessary to register the copyright in the work in order to enforce it in the U.S. legal system. And you won’t get any of the other benefits of registration, either, unless you do.

Posting to YouTube or another Internet website

Posting a copy of a work to YouTube or another Internet website is a modern-day version of the “poor man’s copyright” myth. The best this will do, however, is provide a date and time of posting. That proves nothing about authorship, and it does not provide any of the benefits of registration.

Notary

Notarization only verifies the validity of a signature; it does not prove anything about authorship.

Having an agent, distributor or licensing agency

Having an agent or a distributor, or listing with ASCAP, for example, does not prove authorship, nor does it provide any of the benefits of registration.

Registries and databases

Some websites offer to list your work in a “registry” or other database, supposedly as a means of protecting your copyright in the work. Some of these websites border on fraud. “Registering” your work with a private company or service will not prove authorship and will not give you any of the other benefits of registration. In the United States, the benefits of registration flow only to those who register the copyrights in their works with the United States Copyright Office.

True copyright registration services

Not all online copyright registration services are scams. Some of them will actually get a customer’s copyright registered with the United States Copyright Office. It is still necessary to proceed with caution when using them, however. Here are some things to watch out for.

Per-work vs. per-application

Pay careful attention to whether service fees are charged “per work,” on one hand, or “per application,” on the other.

If you have more than one work to register, it may sometimes be possible to register them with the Copyright Office as a group rather than individually. For example, a group of up to ten unpublished works by the same author may be registered with the Office using one application and paying one filing fee. Similarly, up to 750 photographs can sometimes be registered together as a group using only one application and paying only one filing fee.

An online service that offers to register copyrights at the rate of $100 “per work” might not inform users about the Copyright Office’s group registration options. Imagine paying $75,000 plus $33,750 filing fees to register copyrights in 750 photographs when you might have done it yourself, using one application, for a $55 filing fee.

Single, standard or group application

Once you’ve selected a service whose rates are “per application” rather than “per work,” you will want to ensure that the service includes group registration options. If a service indicates that it will prepare a “single” or “standard” application, then this may mean that it will not prepare applications for group registrations. Find that out before proceeding.

GRAM and GRUW applications

If you are a musician or composer, you may be able to qualify for a significant discount on Copyright Office filing fees by filing a GRAM or GRUW application. These are special application forms that allow the registration of up to 10 unpublished songs, or up to 20 published songs on an album, using one application and paying one filing fee. They are relatively new additions to the Copyright Office’s application forms repertoire. Some registration services will not, or do not yet, work with them.

Fees

First, understand the difference between a service fee and the Copyright Office filing fee. The Copyright Office filing fee is usually going to be between $45 and $85, depending on the kind of application. When a website quotes a fee for the service it provides, the fee it quotes normally does not include the Copyright Office filing fee — unless, of course, the website expressly says so.

Online registration service companies charge different rates for their services. One attorney website I saw quoted a $500 flat fee “per work.” Apparently, he would intend to charge $5,000 to register a group of 10 works.

Other services quote a much lower fee, typically somewhere between $100 and $250, either per work or per application.

These services typically are limited to filing a registration application, and nothing more. Some of them stand behind their work. Others charge additional fees if an application is rejected and they need to do additional work to fix the problem.

 

Disclosure statement

I do not own or have any interest in RightsClick. I have not been paid and have not received anything of value in connection with this post. This post is not an endorsement or advertisement for RightsClick or the services it offers. It is simply an announcement of what appears to me to be a service that could be of considerable benefit to authors, creators, publishers and attorneys.

Unicolors v. H&M Hennes & Mauritz

Unicolors | Cokato attorney Thomas James shows how Congressional inaction to fix a bad law can lead to unusual interpretive gymnastics in the judicial branch.

By Thomas James, Minnesota attorney

In Fourth Estate Public Benefits Corp. v. Wall-Street.com LLC, 139 S. Ct. 881, 889 (2019), the United States Supreme Court interpreted 17 U.S.C. § 411(a) to mean that a copyright owner cannot file an infringement claim in federal court without first securing either a registration certificate or an official notice of denial of registration from the Copyright Office. In an Illinois Law Review article, I argued that this imposes an unduly onerous burden on copyright owners and that Congress should amend the Copyright Act to abolish the requirement. Unfortunately, Congress has not done that.

Congressional inaction to correct a harsh law with potentially unjust consequences predictably leads to judicial decisions exercising the power of statutory interpretation to ameliorate the consequences. The Court’s decision today in Unicolors v. H&M Hennes & Mauritz, __ U.S. __ (No. 20-915, February 24, 2022) is a case in point.

The district court proceedings

Unicolors owns the copyrights in various fabric designs. The company sued H&M Hennes & Mauritz (H&M), claiming that H&M had infringed them. The jury rendered a verdict in favor of Unicolor, but H&M moved for judgment as a matter of law (notwithstanding the jury verdict). H&M argued that Unicolors had failed to satisfy the requirement of obtaining a registration certificate prior to commencing suit. Although Unicolors had obtained a registration, H&M argued that the registration was not a valid one.

Specifically, H&M argued that Unicolors had improperly applied to register multiple works with a single application. According to 37 CFR § 202.3(b)(4) (2020), a single application cannot be used to register multiple works unless all of the works in the application were included in the same unit of publication. The 31 fabric designs, H&M contended, had not all been first published at the same time in a single unit; some had been made available separately exclusively to certain customers. Therefore, they could not be registered together as a unit of publication.

The district court denied the motion, holding that a registration may be valid even if contains inaccurate information, provided the registrant did not know the information was inaccurate.

The  Ninth Circuit’s reversal

On appeal, the Ninth Circuit Court of Appeals acknowledged that Unicolors had failed to satisfy the “single unit of publication” requirement. The Court, however, viewed Unicolors’ characterization of the group of works, in its application, as a “unit of publication” as a mistake of law rather than fact. It is normally a bedrock principle of the law that although mistake of fact may sometimes be asserted as an excuse, ignorance of the law generally cannot be. Since Unicolors had known the relevant facts, namely, that some of the designs had been reserved for some customers separately from the others, its characterization of the group, in the copyright application, as a “unit of publication” was a mistake of law, not fact. Applying the traditional rule that ignorance of the law is not an excuse, the Ninth Circuit held that Unicolor’s registration was not valid.

The United States Supreme Court granted certiorari.

The Supreme Court’s reversal of the reversal

Section 411(b)(1) says that a registration is valid unless it contains information that the applicant knew was inaccurate. Bucking the traditional maxim that ignorance of the law is not an excuse, the Court interpreted the word know, in this context, to include knowledge of either an applicable fact or an applicable law.  The Court drew upon legislative history suggesting that Congress intended to deny infringers the ability to exploit loopholes.

This is actually a good point. A major objective of international copyright treaties and conventions has been to eliminate formalities in the enforcement of copyrights. Registration is one such formality. One may legitimately ask, however, whether Congress’s decision to impose a requirement of obtaining either a certificate of registration or an official denial of registration from the Copyright Office as a precondition to enforcing a copyright reflected an intention to impose and enforce formalities despite the clear intent of treaties by which the United States has agreed to be bound. Not all other countries impose this formal prerequisite to copyright enforcement. In fact, legal scholars both here and abroad have criticized the United States for enacting and enforcing this formality.

The Court dismissed the traditional legal maxim that ignorance of the law is not an excuse by suggesting it only applies to criminal laws. As Justice Thomas points out in his dissent, however, a requirement to “know” a law (or a legal requirement) ordinarily is satisfied, even in civil cases, by constructive knowledge; actual knowledge is not necessary. Citizens generally are charged with the responsibility of knowing what the laws are, whether they are criminal or civil laws. It is not a defense to the imposition of punitive damages in a tort case, for example, that the defendant did not know that he might be subject to a larger damages award if he acted with intentional or reckless disregard for other people’s rights or lives. That ignorance of the law is not an excuse is a large part of the reason for the existence of legal advisers and the legal profession in general.

Thomas points out that in a previous cases, the Court has distinguished between a “willfulness” requirement, which requires proof of actual knowledge, and a “knowledge” requirement, as to which either actual or constructive knowledge normally may suffice. See Cheek v. United States, 498 U.S. 192, 201–203 (1991); Intel Corp. Investment Policy Comm. v. Sulyma, 589 U. S. ___ (2020) (slip op., at 6–7). Indeed, the Court has acknowledged that other “knowledge” requirements in the Copyright Act may be satisfied by either actual or constructive knowledge.

Reading between the lines a little, I think there is room for speculation that some members of the Court regard the prelitigation registration requirement as a formality which, as such, is not really in keeping with the spirit of international treaties calling for the abolition of copyright formalities. Rather than allow a formality to stand in the way of an attempt to enforce a copyright, it is conceivable that the Court chose to deploy its power of judicial interpretation to effect what it believed to be the most just result in this case.

Conclusion

Another old legal maxim I remember from law school is “Hard cases make bad law.” It is too soon to tell how the Court’s decision in this case will play out in practice, but the Court’s allowance of an infringement action to proceed despite the fact that the plaintiff provided false information (whether factual or legal) when securing the registration does seem to open a fairly large can of worms.

Of course, the Court’s decision does not rule out a dismissal of an infringement action if the defendant can prove that the plaintiff had actual knowledge that he or she was providing false information at the time of applying for registration. Actual knowledge, however, can be very difficult to prove.

More importantly, how much mileage are courts going to let people get out of a claim that they did not know the law when they applied for registration? For example, will a person who purchases a copy of a book and then files an application to register the copyright in it be allowed to proceed with an infringement claim because he “did not know” that merely buying a copy of a work does not amount to a purchase of the copyright? (cf. these guys.)

Of course, copyright ownership can still be disputed in an infringement proceeding even after the Court’s decision in this case. Except in the rare case where it can be proven that an applicant actually knew his works did not qualify for the kind of registration application he used, however, it seems like the Court’s decision opens up the copyright registration application process to a great deal of potential abuse, at least when the “error” is not obvious enough for the Copyright Office to detect from the face of the application itself.

Once again, I would suggest that perhaps Congress should just consider abolishing the pre-litigation registration requirement.

This decision was one of the top copyright cases of 2022.

Diversifying Copyrights

Diversifying copyrights

by Thomas James, Law Office of Tom James, Cokato MN

This week, the Copyright Alliance and the U.S. Chamber of Commerce’s Global Innovation and Policy Center hosted a program called A Conversation on Diversity and Inclusion in Copyright. The aim was “to discuss ways to promote and facilitate increased participation from underrepresented communities.” (www.msk.com/newsroom-events-1343.)  

The facts about racial and ethnic disparities in copyright registration ownership are hard to come by. Findings in a George Washington University Faculty Research Paper, however, are a bit surprising. Black authors and creators, it seems, are actually over-represented here. Apparently, it is authors of Hispanic origin who are under-represented.

Economic Inequality

Regardless of the reason for the meeting, it is good to see that it is bringing attention to the long-standing economic unfairness of the U.S. system .To give you an idea of what the problem is, think about this: The registration fee for a single work is $125 ($65 or $45 if you file online). A lucky few score jobs as technical writers or creators of other kinds of content. Their copyrights are almost always owned by their employers as “works made for hire.” This can shift responsibility for fees to the employer. The down side of “work for hire” is that the real artists and authors lose ownership of their creative works.

For freelance writers and creators, the going rate for article writers is $0 to $20 per article. Meanwhile, due to the proliferation of free music on the Internet, the average songwriter can expect to make $0 or less per song. Only a tiny percentage of songwriters make enough money to cover the cost of registering a copyright in a song. As for painters, well, there’s a reason “starving artist” is such a familiar expression. Group registration is sometimes possible, and when it is, some money can be saved that way. In many cases, however, this option is not available.

Learn how to register music copyrights yourself

The United States and most other countries, by treaty, do not require a work to be registered in order to get copyright protection. A copyright arises as soon as a creative work is fixed in a tangible medium of expression. That’s great, but owning a copyright won’t do you much good if you need a registration certificate to enforce it. As I said in an Illinois Law Review article, the United States should eliminate its pre-litigation registration requirement.

Maybe the diversity, equity and inclusion movement will finally bring Congress around to doing something.

Read about other non-AI-related legal issues. 

Need help registering a copyright? Contact Thomas James at the Law Office of Tom James. I also offer online courses.

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