1112.3 The Scope of a Group Registration for a Photographic Database
As a general rule, the U.S. Copyright Office encourages photographers, stock photography companies, database providers, and other interested parties to register their works using the group registration options for published or unpublished photographs, rather than the group registration for photographic databases.
A registration for a photographic database covers the authorship involved in selecting, coordinating, and arranging the content of the database as a whole. It also may cover the individual photographs within the database if the photographers transferred the exclusive rights in their respective works to the owner of the database, and if the selection, coordination, and arrangement of those photographs is sufficiently creative. If the selection, coordination, or arrangement of the photographs in the database or its updates is not sufficiently creative using an objective standard, the registration specialist will refuse registration.
Photographers often display their works on websites and distribute them in catalogs. But as discussed in Section 1112, websites and catalogs are not considered databases for purposes of registration. If the Office determines that a particular website or catalog does not qualify as a database, it will refuse to register that work as a photographic database or as a group of updates or revisions to a database.
Moreover, registering photographs as part of a photographic database may limit the copyright owner’s ability to seek certain remedies in an infringement action. The Copyright Act states that a copyright owner may be entitled to recover “an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,” but “[f]or purposes of this subsection all parts of a compilation . . . constitute one work.” 17 U.S.C. § 504 (C) (1).
A database is – ” by definition – a compilation. See Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., 747 F.3d 673, 676 (9th Cir. 2014) (concluding that a photographic database is a collective work). Consequently, when a group of photographs is registered as a database, the copyright owner may be entitled to seek only one award of statutory damages for the database as a whole – ” rather than a separate award for each photograph – ” even if the defendant infringed all the photographs covered by the registration.
By contrast, when a copyright owner registers a group of photographs under GRUPH or GRPPH, the registration covers each photograph in the group, but the group itself is not considered a compilation. 37 C.F.R. § 202.4(n). Therefore, any claim for infringement of those photographs would not be subject to the limitation set forth in Section 504 (C) (1) of the Copyright Act.
See generally Group Registration of Photographs, 81 Fed. Reg. 86,643, 86,645, 86,654 (Dec. 1, 2016).