The Pros and Cons of Registering Photo and Music Copyrights as a Collection or Group

In the Internet age, where digital music and image files are easily shared, copyright protection is critical for musicians, photographers, and digital artists. Even though the filing fees for copyright registration are relatively inexpensive, for a prolific musician or photographer who creates dozens or even hundreds of songs or photos, those fees can add up. Artists who can't afford to register every work may opt to register only some, leaving others without the benefits of federal registration, but the U.S. Copyright Office offers artists another alternative: registration of a group or collection of many works under a single registration. This option allows an artist to register more works for significantly reduced filing fees than registering each work separately. But artists need to be aware that this approach comes with certain limitations.

The mechanics of a group copyright registration

Not all photos or songs are eligible to be grouped together in a group registration. Although the rules vary slightly with respect to different types of works, generally speaking, works may be grouped together in a single registration only if they all have the same publication status and the same owner or author(s). However, some of these concepts have a special meaning under U.S. Copyright law.

Important terms under U.S. copyright law

• Publication. According to U.S. Copyright law, a creative work is deemed to have a status of “published” if it has been distributed to the public by sale or other transfer of ownership, such as lease, license, or rental, or if it has been at least offered for transfer. However—and this is an important point—a public display of a work without a transfer of ownership or offer to transfer ownership does not constitute publication. Thus, offering a song for sale on the iTunes Store or a website is considered publication, but uploading a photo to Flickr or other photo sharing site is not … unless the site offers the work for sale, lease, rental or licensing. That's an important distinction every artist needs to understand.
• Copyright owner. The owner of a copyrighted work is the person or entity that holds the right to allow or disallow transfer or duplication of the work. This is usually the author, artist, or musician who created the work, but not always. A work created by an employee as part of his or her job duties is typically owned by the company. The copyright owner could also be an entity to whom an artist has assigned or transferred ownership rights, as in the case of musicians who transfer rights to a record label through a recording contract.
• Author. The author of a copyrighted work is the person or persons who created the work, except in cases where an employee creates a work as part of his or her job duties. However, each and every person who makes a creative contribution to a work is a co-owner of the work. This issue does not often arise in the context of photography and other visual arts, but in music, all members of a band who contribute to the writing or performance of a song may be co-owners if there is no contract or employment arrangement that would transfer those rights.

Group registration: What qualifies, what doesn't

With these definitions in mind, let's look at the specific rules for the group registration of photographs and musical works. If the works have not been published, the rules are the same for photos and songs:

A group of unpublished photographs or songs may be filed for copyright registration in a single group registration if:

• All of the photos or songs have the same author, or, in the case of multiple authors, all of the works have at least one author in common.
• All of the photos or songs have the same copyright owner.

If the works have been published, the rules differ slightly for photos and songs.

A group of published photographs may be filed in a single group registration if:

• All of the photos were taken by the same photographer. Note that this requirement differs from the question of authorship. While a company that employs multiple photographers may be considered the author of all of the photos from a legal standpoint, for purposes of group copyright registration, each group of photographs must be the work of a single photographer.
• All of the photos were published in the same calendar year.
• All of the photos have the same copyright owner.

A group of published songs may be filed in a single group registration if:

All of the songs have the same copyright owner. As discussed above, co-ownership issues that arise in the context of a musical band with multiple contributors can severely complicate these issues. Accordingly, many experienced entertainment attorneys advise bands to form an LLC or corporation to manage their copyrights or to have a “work for hire” agreement in place to centralize copyright ownership.

The limitations of a group copyright registration

The advantages of a group registration should be fairly obvious: significant cost savings on filing fees and significant time savings in the preparation of copyright applications. However, major record labels still typically file each song on an album as a separate registration. This is because filing multiple works under a single group registration potentially limits the copyright owner's remedies if those rights are infringed.

Most copyright infringement cases related to music or visual works are filed by major companies. But whether or not you can afford to pursue a lawsuit, the issue of potential remedies is relevant because it can mean the difference between a cease and desist, or settlement demand that has “teeth” and one that doesn't. That's because U.S. Copyright law provides for statutory damages if a copyright owner proves that there has been an infringement of a registered work. If a registered work is infringed, the copyright owner is entitled to recover up to $150,000 in statutory damages even if the copyright owner cannot prove how much the infringement has cost him or her.

The prospect of having to pay statutory damages along with the copyright owner's attorney fees can make a very compelling argument to cease infringement and agree to a monetary settlement. Unfortunately, the law allows only one statutory damages award per registration, regardless of how many infringements have occurred. That means that if an entire album of music is copied without permission, the owner who registered each song separately could seek fifteen statutory damages awards, while one who had filed a group registration for the album could only seek one award.

In this way, an artist's registration strategy can help impact the persuasiveness of a settlement demand and potentially the settlement value of the copyright owner's claim. Of course, an independent artist or small business cannot always afford that kind of protection. But in all cases, having a federal copyright registration is more effective in preventing and stopping infringement than not having one. All artists should carefully consider the costs and benefits of the group registration mechanism before deciding on a strategy for protecting valuable intellectual property.

You should discuss any copyright questions or issues with an attorney specializing in intellectual property law. Websites such as LegalZoom can help you find an attorney. In addition, LegalZoom's Business Legal Plan offers its subscribers one free copyright registration per month (excluding government filing fees).