May 11, 2010
In Copyright Case, Court Rejects Corbis's Bulk Registration Practices
Photographers who have participated over the years in Corbis’s copyright registration program may have less copyright protection than they think—or need. The reason is because the bulk copyright registration forms that Corbis filed starting in the mid 1990s are missing a crucial piece of information: the names of most of the photographers.
Photographers Marc and David Muench learned that the hard way last week when a federal court in New York rejected their copyright claim (09-CV-2669) against textbook publisher Houghton Mifflin Harcourt. The Muenchs alleged that the publisher used approximately 180 of their images beyond the scope of a usage license. But the court said the Muenchs didn’t have grounds to sue because their images weren’t properly registered.
Corbis had registered the Muench images as part of various compilations in 1997, 1999, 2001, and 2006. By contrast, the court said that 20 images that David Muench had registered himself “appear to be properly registered,” so the Muenchs can pursue their infringement claim for those images.
“Because the Copyright Act is clear on its face, i.e., a copyright registration must contain certain pieces of information, including the author’s name, the registrations at issue here cover only the database as a whole (the compilation), but do not cover [the Meunschs’] individual contributions,” the court said.
The compilation referred to was a collection of images Corbis created in order to registering copyrights all at once. Corbis started the bulk registration program so it could pursue infringers on its own behalf, but the program was also billed as a benefit to photographers because it streamlined the cumbersome copyright registration process.
Under the terms of the program, photographers were asked to assign their copyright temporarily to Corbis for the express purpose of the bulk registrations. Corbis then registered the images as a compilation under its own name, without listing the individual photographers whose images made up the compilation, and then transferred copyright ownership back to the photographers.
The company’s decision to forego naming each photographer was based upon an advisory letter from the US Copyright Office. On behalf of Corbis and other stock agencies, the Picture Archive Council of America had asked the US Copyright Office to affirm the validity Corbis’s bulk registration process. The copyright office responded that it preferred–but did not require—registration applications to name all of the photographers.
Marc and David Meunsch cited that letter in support of their claim, but the court flatly rejected the Copyright Office’s interpretation of the registration requirements. “The interpretation [of the Copyright Office] conflict with a plain reading” of US Copyright statutes, the court said.
Corbis Director of Communications Dan Perlet says that “Corbis, PACA and others believe that this decision regarding the bulk registration process is incorrect and that it will be reargued, in which case Corbis will likely file an amicus brief supporting the bulk process.”
But he notes that Corbis has been listing the names of all photographers in its bulk registrations since February 2009—the month before the Muenchs filed their lawsuit. The Corbis bulk registrations since then aren’t affected by the Muench ruling, Perlet says.
For photographers who participated in the agency’s registration prior to that, “Corbis recommends that contributors wait to see the outcome of the appeal,” Perlet says. If the appeals are unsuccessful, he adds, then Corbis will go back and provide any supplementary information or re-register the images to make sure the registrations are valid.
Corbis has not said how many photographers—or images—are part of its bulk registration program.
Meanwhile, Advertising Photographers of America (APA)—which questioned the validity of Corbis’s bulk registrations several years ago—said in a press release yesterday,“[Corbis] ineffectually ‘registered’ an unknown large number of images that has resulted in a significant increase in vulnerability for photographers that have used this system through Corbis.”
APA added, “This emphasizes the importance of registering ones own images.”