For purposes of copyright registration, catalogs are considered compilations of information or collective works that contain written descriptions and/or pictorial depictions of two- or three-dimensional products. Catalogs generally contain copyrightable pictorial and/or literary authorship, and they also may contain copyrightable authorship in the selection, coordination, and/or arrangement of copyrightable or uncopyrightable elements.
The photographs within a catalog may be registered together with the catalog as a whole (I) if the photographs and the catalog were created by the same author, or (ii) if the copyright claimant owns all of the rights in the photographs and the compilation authorship involved in creating the catalog as a whole, and (iii) if the photographs have not been previously published or previously registered. However, a claim in the photographs does not extend to the actual works or objects depicted in those images.
A catalog may be registered as a compilation of photographs or a collective work consisting of photographs if there is a sufficient amount of creative expression in the author’s selection, coordination, and/or arrangement of the images. However, a catalog is not considered a compilation of the works or objects depicted in those photographs, nor is it considered a collective work consisting of the works or objects depicted therein. Accord Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,606 (June 22, 2012). As a result, a registration for a catalog generally does not extend to the works or objects shown in that work, even if they are eligible for copyright protection and even if the claimant owns all of the rights in those works or objects. Instead, the registration extends only to the pictorial authorship involved in creating the images, and the authorship involved in selecting, coordinating, and/or arranging those images within the catalog as a whole. See 17 U.S.C. § 113 (B).
By contrast, if the applicant submits individual photographs or pictorial illustrations of a two- or three-dimensional work (as opposed to a catalog depicting a two- or three- dimensional work), the registration may cover the pictorial or sculptural authorship that the author contributed to that work if it is clear that the individual photographs or illustrations are being used as identifying material for the work depicted therein and that the applicant is not attempting to register the authorship involved in creating the images themselves. For information concerning the types of works that may be registered with identifying material, see Chapter 1500, Section 1506. As a general rule, it is not possible to register a group of pictorial, graphic, or sculptural works with one application, one filing fee, and a submission of identifying material. Instead, the applicant generally must submit a separate claim for each work. However, there are two limited exceptions to this rule.
• If the works are unpublished it may be possible to register them as a group of unpublished works. Photographs or illustrations of the two- or three-dimensional works may be used as identifying material in this situation. In such cases, the applicant should assert a claim in the works depicted in those images rather than the authorship involved in creating the images themselves.
• If the works were physically bundled together for distribution to the public as a single, integrated unit and if all the works were first published in that integrated unit, it may be possible to register them using the unit of publication option.
When a group of photographs are published in a catalog, the works depicted therein are considered published, regardless of whether they are two- or three-dimensional. However, the fact that a group of works were published in the same catalog does not mean that the catalog constitutes a unit of publication or that the works may be registered together with the unit of publication option.
A unit of publication is a package of separately fixed elements and works that are physically bundled together by the claimant for distribution to the public as a single, integrated unit. The unit must contain an actual copy of the works and the works must be distributed to the public as an integral part of the unit. A unit that merely contains a representation of the works, or merely offers those works to the public (without actually distributing them) does not satisfy this requirement. For example, a boxed set of fifty different greeting cards sold as a package to retail purchasers would qualify as a unit of publication. By contrast, a catalog offering fifty different greeting cards for individual purchase would not be considered a unit of publication, even if all of the cards may be ordered from the catalog for a single price. Although a catalog may offer multiple items for sale to the public, the catalog itself does not qualify as a unit of publication, because the items themselves are not packaged together in the catalog for actual distribution to the public.
For a general discussion of compilations and collective works, see Chapter 500, Sections 508 and 509. For detailed information concerning the unit of publication option and the group registration option for unpublished works, see Chapter 1100, Sections 1103 and 1106