IP Law Daily, COPYRIGHT NEWS: Copyright Office proposes group registration for visual artists, (Feb 15, 2024)

By Matthew Hersh, J.D.

But shortcomings of the Office’s outdated registration platform may limit the new rule.

Visual artists will soon have a cheaper and less burdensome way to register their works if new proposed regulations announced by the Copyright Office come into effect. But the proposed regulations, while sure to open new paths to registration for artists who might not otherwise protect their works, are limited in many ways by the capacity limitations of the Office’s outdated “legacy” copyright registration portal (89 Fed. Reg. 11789, February 15, 2024).

The proposed new regulations, if adopted, would add visual artists to a growing list of creators entitled to register multiple works within a single application. All creators can combine up to ten works within a single group application as long as those works have not been made available to the public. But until now, only certain creators have been able to take advantage of the group registration for works that have already been published. For example, photographers can register up to 750 different works within a single application, as long as the photographs were taken within the same year. The owners of works on a single album of music, the authors of short online works like blog entries, and the owners of certain non-photographic databases can also take advantage of group registration options.

The proposed regulation would now add visual artists to the mix—something long desired by the visual artist community. Visual artists are “often prolific creators who produce a significant number of works each year,” the Office noted in its accompany explanation to the proposed regulations, but their works are particularly susceptible to infringement because “in most cases they are fixed in a digital file that can easily be copied.” But most visual artists do not register their works even despite this risk of infringement, the Office explained—largely because of the cost and burden of doing so. “Visual artists may be prolific creators,” the Office observed, “but the economic value of each work they produce tends to be quite low.

The proposed group registration regulations, if adopted in their present form, would come with some important limitations. Most importantly, visual artists would be allowed to register only ten works per application—a far cry from their shutter-clicking brethren. According to the Office, that is explained by the different nature of the two arts. Not only are photographers “exceptionally prolific creators,” the Office noted, but their registration applications are relatively easy to review: examiners need only “look for creative photographic authorship; they do not consider the subject matter of the photo or any other type of authorship that may be shown in the image, such as text or artwork.” By contrast, the Office explained, visual arts encompass wide range of pictorial and graphic works. “The issues presented and the time needed to complete this examination may vary dramatically,” the Office reasoned, “depending on whether the applicant is registering a group of logos, a batch of commercial artwork, or a collection of fabric designs.”

The Office’s comments on the proposed new regulations also underscore something widely known in and out of the Office, which is the considerable shortcomings of the current copyright registration system known as eCO. (Visitors are still advised to use “the Firefox browser on the Microsoft Windows 7 Operating system.”) That system, which is soon to be decommissioned and replaced, explains part of the details in this proposed regulation. For example, the Office plans to “minimize development costs and time” by using the technical specifications for the group registration option for unpublished works rather than building a new system. But that unpublished work option is limited to ten works, so this one would have to be too.

Another limitation imposed by what the Office calls its “legacy” system is that the visual works forming a single group registration must have been published within a 30-day period. Such a period is narrow enough, the Office explains, so that applicants could simply enter the publication date of the first and last work while still leaving a usable record for users. (If the timespan were longer, according to the Office, then applicants would have to leave dates for every single work.) But another reason, the Office acknowledged, was technological. The current system is equipped only to compare the number of days between two dates, the Office explained, which would validate an application’s compliance with the 30-day requirement. “If the Office extended the period to span several months, thus necessitating precise dates of publication for each individual work,” the Office noted, “the eCo system would not be able to validate for multiple dates of publication.”

Written comments to the regulation must be received by April 1.

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