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Proposed Rule2024-03063

Group Registration of Two-Dimensional Artwork

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Published

February 15, 2024

Issuing agencies

Library of CongressCopyright Office, Library of Congress

Abstract

The U.S. Copyright Office is proposing to create a new group registration option for two-dimensional artwork. This option will allow applicants to register up to ten works published within a thirty-day time period by submitting a single online application with a digital deposit copy of each work. The Office will examine each work to determine if it contains a sufficient amount of creative pictorial or graphic authorship. If the Office registers the claim, the registration will cover each artwork as a separate work of authorship. The Office invites comment on this proposal.

Full Text

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<title>Federal Register, Volume 89 Issue 32 (Thursday, February 15, 2024)</title>
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[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Proposed Rules]
[Pages 11789-11798]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-03063]

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LIBRARY OF CONGRESS

37 CFR Parts 201, 202

[Docket No. 2024-2]

Group Registration of Two-Dimensional Artwork

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is proposing to create a new group
registration option for two-dimensional artwork. This option will allow
applicants to register up to ten works published within a thirty-day
time period by submitting a single online application with a digital
deposit copy of each work. The Office will examine each work to
determine if it contains a sufficient amount of creative pictorial or
graphic authorship. If the Office registers the claim, the registration
will cover each artwork as a separate work of authorship. The Office
invites comment on this proposal.

DATES: Comments on the proposed rule must be made in writing and must
be received by the U.S. Copyright Office no later than April 1, 2024.

ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the <a href="http://regulations.gov">regulations.gov</a> system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. Specific instructions
for submitting comments are available on the Copyright Office website
at <a href="http://copyright.gov/rulemaking/gr2d">http://copyright.gov/rulemaking/gr2d</a>. If electronic submission of
comments is not feasible due to lack of access to a computer and/or the
internet, please contact the Office using the contact information below
for special instructions.

FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#bed3dbd8cafeddd1cec7ccd7d9d6ca90d9d1c8"><span class="__cf_email__" data-cfemail="741911120034171b040d061d131c005a131b02">[email&#160;protected]</span></a>, or by telephone at
202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

The U.S. Copyright Office (``Office'') is proposing to create a new
group registration option for works of two-dimensional art. When
Congress enacted the Copyright Act of 1976 (``Copyright Act'' or
``Act''), it authorized the Register of Copyrights (``Register'') to
specify by regulation the administrative classes of works for the
purpose of seeking registration, and the nature of the deposit required
for each such class. Congress afforded the Register discretion to
permit registration of groups of related works with one application and
one filing fee, known as ``group registration.'' \1\ Pursuant to this
authority, the Register has established regulations permitting the
Office to issue group registrations for certain limited categories of
works, provided certain conditions have been met.\2\
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\1\ 17 U.S.C. 408(c)(1).
\2\ See generally 37 CFR 202.3(b)(5), 202.4(c)-(k), (o).
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As the legislative history explains, allowing ``a number of related
works to be registered together as a group represent[ed] a needed and
important liberalization of the law.'' \3\ Congress recognized that
requiring applicants to submit separate applications where related
works are separately published may be so burdensome that authors and
copyright owners may forgo registration altogether, since registration
is not a prerequisite to copyright protection.\4\ If copyright owners
do not submit their works for registration, the public record will not
contain any information concerning these works.
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\3\ H.R. Rep. No. 94-1476, at 154 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, at 136 (1975).
\4\ H.R. Rep. No. 94-1476 at 154; S. Rep. No. 94-473 at 136.
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At the same time, when published works are bundled together in one
application, it can be difficult to capture adequate information about
each work, particularly within the technological constraints of the
current electronic registration system (known as ``eCO''). The Office
also must consider the potential effect of a group registration option
on its overall administration of the registration system, including the
processing times for other types of works. Group registration options
require balancing the copyright owner's desire for more liberal
registration options, the importance of an accurate public record, and
the Office's need for an efficient method of examining, indexing, and
cataloging each work.

A. Calls for a New Registration Option for Two-Dimensional Artwork
<SUP>5</SUP>
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\5\ This document references a number of prior rulemakings in
which commenters have requested group registration, including: 60 FR
18742 (Mar. 28, 2012) (``2014 Fee Study NPRM''); 80 FR 23054 (Apr.
24, 2015) (``Visual Works NOI''); 81 FR 86643 (Dec. 1, 2016)
(``Group Photographs NPRM''); 82 FR 47415 (Oct. 12, 2017) (``GRUW
NPRM''); 83 FR 24054 (May 24, 2018) (``2019 Fee Study NPRM''); 83 FR
52336 (Oct. 17, 2018) (``Registration Modernization NOI''); 84 FR
66328 (Dec. 4, 2019) (``Online Publication NOI''); and 86 FR 70540
(Dec. 10, 2021) (``Deferred Registration Examination Study NOI'').
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On numerous occasions, groups representing artists have asked the
Office to establish a new group registration option for two-dimensional
artwork.\6\ They assert that such an option is needed because visual
artists are often prolific creators who produce a significant number of
works each year.\7\ These works can be particularly susceptible to
infringement, because in most cases they are fixed in a digital file
that can easily be copied, even if the file includes copyright
management information or technical protection measures.\8\ Once a file
has been sent to

[[Page 11790]]

another party it is impossible to know if the recipient deleted the
file, kept it, or shared it with others.\9\ In some cases, recipients
may mistakenly assume they own everything received from the artist, and
use the artist's work for other projects without obtaining an
appropriate license.\10\
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\6\ Copyright Alliance Comment in response to Deferred
Registration Examination NOI, at 31 (Jan. 24, 2022) (urging the
Office to create ``a group registration option for illustrations'');
Coalition of Visual Artists (``Coalition'') Comment in response to
2019 Fee Study NPRM, at 35 (May 24, 2018) (``We believe that the
current GRPPH [``Group Registration of Published Photographs''] and
GRUPH [``Group Registration of Unpublished Photographs''] group
registrations should be expanded to include all such two-dimensional
visual works, including without limitation, illustrations, graphic
art, video clips, textile arts or visual art in any medium.'');
Coalition Comment in response to Group Photographs NPRM, at 60 (Jan.
30, 2017) (asking the Office to ``[a]llow group registration for all
two-dimensional artworks (visual works)''); Graphic Artists Guild
Comment in response to Visual Works NOI, at 9 (July 20, 2015)
(requesting ``a new ruling to allow Group registration for
illustration and graphic design; for all visual works, not just
photographs''); Association of Medical Illustrators (``AMI'')
Comment in response to Registration Modernization NOI, at 9 (Jan.
15, 2019) (``The AMI wishes to emphasize that the option of group
registration for multiple published images for a single, reasonable
fee should be available for works of visual art . . . .''); Shaftel
& Schmelzer Comment in response to Registration Modernization NOI,
at 30-31 (Jan. 11, 2019) (``The Graphic Artists Guild has been on
record to the Copyright Office asking to include illustration and
graphic art in the Group registration category since 1999; at every
Roundtable discussion, annual meeting, and nearly every NOI comment
letter for the last 20 years.'' (footnote omitted)).
\7\ Coalition Comment in response to Deferred Registration
Examination Study NOI, at 3 (Jan. 24, 2022); Graphic Artists Guild
Reply Comment in response to Online Publication NOI, at 2 (June 15,
2020); Graphic Artists Guild Comment in response to Registration
Modernization NOI, at 6 (Jan. 15, 2019); Shaftel & Schmelzer Comment
in response to Registration Modernization NOI, at 30 (Jan. 11,
2019); Coalition Comment in response to 2019 Fee Study NPRM, at 35
(May 24, 2018).
\8\ Coalition Comment in response to Online Publication NOI,
App. B, at 16 n.27 (Mar. 19, 2020); Graphic Artists Guild Comment in
response to Registration Modernization NOI, at 6 (Jan.15, 2019);
Coalition Comment in response to Registration Modernization NOI, at
16 n.27 (Jan. 15, 2019); Shaftel & Schmelzer Comment in response to
Registration Modernization NOI, at 41 (Jan. 11, 2019); Graphic
Artists Guild Comment in response to Deferred Registration
Examination Study NOI, at 2 (Jan. 24, 2022). Visual artists who
produce works in a physical format may face similar risks. For
example, when textile designs are displayed in showrooms or other
public places, they can easily be photographed and converted into an
unauthorized digital file. Coalition Comment in response to Group
Photographs NPRM, at 47 (Jan. 30, 2017).
\9\ Coalition Comment in response to 2019 Fee Study NPRM, at 35
(May 24, 2018); Coalition Comment in response to Group Photographs
NPRM, at 5 (Jan. 30, 2017); Graphic Artists Guild, American
Photographic Artists, and American Society for Collective Rights
Licensing Comment in response to 2019 Fee Study NPRM, at 2 (Sept.
21, 2018).
\10\ Coalition Comment in response to 2019 Fee Study NPRM, at 35
(May 24, 2018); Graphic Artists Guild, American Photographic
Artists, and American Society for Collective Rights Licensing
Comment in response to 2019 Fee Study NPRM, at 2 (Sept. 21, 2018);
Coalition Comment in response to Group Photographs NPRM, at 5 (Jan.
30, 2017); Graphic Artists Guild Comment in response to 2014 Fee
Study NPRM, at 3-4 (May 14, 2012).
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These stakeholder groups have reported that most visual artists do
not register their works, despite this risk of infringement.\11\ In
surveys conducted by the Graphic Artists Guild and the Coalition of
Visual Artists (``Coalition''), between 50 and 60% of the participants
said they have not registered any of their works with the Office.\12\
These groups have cited several reasons why so many visual artists do
not participate in the registration system. First and foremost is the
cost of registration.\13\ Visual artists may be prolific creators, but
the economic value of each work they produce tends to be quite low.\14\
They typically cannot charge a premium for individual works; instead,
their income is dependent on the volume of material they produce for
their clients.\15\ To register a published work with the Office, visual
artists generally must submit a separate application and pay a $45 or
$65 filing fee for each work.\16\ The stakeholder groups assert this is
cost-prohibitive for individual creators and small businesses,\17\
because in some cases, the fee for registering a single published work
would exceed the revenue that the artist can reasonably expect to
receive for certain types of licensed uses.\18\ According to visual
artists, these fees cannot be passed onto their clients.\19\ As the
consulting firm Schaftel & Schmelzer explained, ``the marketplace does
not pay fees high enough to cover the costs.'' \20\
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\11\ AMI Comment in response to 2019 Fee Study NPRM, at 3 (Sept.
18, 2018).
\12\ Graphic Artists Guild Comment in response to Visual Works
NOI, at 8 (July 20, 2015); Coalition Comment in response to 2019 Fee
Study NPRM, App. B, at 14 (Oct. 11, 2018).
\13\ Copyright Alliance Comment in response to Deferred
Registration Examination Study NOI, at 2 (Jan. 24, 2022); Shaftel &
Schmelzer Comment in response to Deferred Registration Examination
Study NOI, at 2 (Jan. 22, 2022); Coalition Comment in response to
Online Publication NOI, App. B, at 16 n.27 (Mar. 19, 2020); AMI
Comment in response to Online Publication NOI, at 8 (Mar. 19, 2020);
Shaftel & Schmelzer Comment in response to Registration
Modernization NOI, at 6 (Jan. 11, 2019); Coalition Comment in
response to Registration Modernization NOI, at 16 n.27 (Jan. 15,
2019); Shaftel & Schmelzer Comment in response to 2019 Fee Study
NPRM, at 18 (Sept. 20, 2018); Coalition Comment in response to Group
Photographs NPRM, at 51 (Jan. 30, 2017); Copyright Alliance Comment
in response to 2014 Fee Study NPRM, at 4 (May 14, 2012); Letter from
Mica Duran, AMI, to Shira Perlmutter, Register of Copyrights, at 1
(July 10, 2023) (on file with Copyright Office); Graphic Artists
Guild Comment in response to Deferred Registration Examination Study
NOI, at 1 (Jan. 24, 2022).
\14\ Coalition Comment in response to Deferred Registration
Examination Study NOI, at 3 (Jan. 24, 2022); Shaftel & Schmelzer
Comment in response to Deferred Registration Examination Study NOI,
at 28 (Jan. 22, 2022); Shaftel & Schmelzer Comment in response to
Registration Modernization NOI, at 30 (Jan. 11, 2019); Copyright
Alliance Comment in response to Visual Artists NOI, at 1 (undated);
Graphic Artists Guild Comment in response to Visual Works NOI, at 6
(July 20, 2015).
\15\ AMI Comment in response to 2019 Fee Study NPRM, at 3 (Sept.
18, 2018); AMI Comment in response to Visual Works NOI, at 13
(undated).
\16\ See 37 CFR 201.3(c)(1)(i)(A), (B) ($45 fee for registering
one work by one author with the Single Application; $65 fee for
registering a work with the Standard Application).
\17\ Shaftel & Schmelzer Comment in response to Online
Publication NOI, at 18 (Mar. 17, 2020); Shaftel & Schmelzer Comment
in response to 2019 Fee Study NPRM, at 8 (Sept. 20, 2018).
\18\ Graphic Artists Guild Comment in response to Visual Works
NOI, at 14 (July 20, 2015) (``In some instances, the cost of
registration is higher than what the works are licensed for.'');
Graphic Artists Guild Comment in response to 2014 Fee Study NPRM, at
2 (May 14, 2012) (``Licenses to use visual works for small and one-
time uses to individual and small business users are often below the
proposed fee increase.''); Shaftel & Schmelzer Comment in response
to Registration Modernization NOI, at 6-7 (Jan. 11, 2019)
(``Licenses for visual works for small and one-time uses to
individual and small business users would in some cases not even
cover the cost of registration.'').
\19\ See Shaftel & Schmelzer Comment in response to 2019 Fee
Study NPRM, at 18 (Sept. 20, 2018). For example, AMI estimated that
if an artist created twenty-six illustrations for a project they
could bill their client $4,500, but they would have to pay $1,690 to
register these works with the Standard Application, which would
account for 37% of the artist's license fee. Letter from Mica Duran,
AMI, to Shira Perlmutter, Register of Copyrights, Ex. 1 (July 10,
2023) (on file with Copyright Office).
\20\ Shaftel & Schmelzer Comment in response to 2019 Fee Study
NPRM, at 42 (Sept. 20, 2018)
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Second, the groups contend that individual artists and small
businesses do not have the time or resources required to register each
work individually.\21\ Many visual artists are self-employed, meaning
they are personally responsible for handling every aspect of their
business. In addition to creating and delivering works to their
clients, they must order supplies, update their marketing materials,
pay their bills, manage their accounts, organize their records, and
perform countless other tasks on a daily basis.\22\ According to the
Association of Medical Illustrators (``AMI''), ``[t]here are not enough
hours in the day'' and the added burden of registering one work at a
time ``is simply too much'' for many visual artists.\23\ They also
assert that the registration process is too complicated and that many
visual artists do not know how to use it.\24\
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\21\ AMI Comment in response to Deferred Registration
Examination Study NOI, at 1 (Jan. 24, 2022); Shaftel & Schmelzer
Comment in response to Deferred Registration Examination Study NOI,
at 3 (Jan. 22, 2022); Coalition Comment in response to Group
Photographs NPRM, at 51 (Jan. 30, 2017); Copyright Alliance Comment
in response to Visual Works NOI, at 8 (undated); Graphic Artists
Guild Comment in response to Visual Works NOI, at 13 (July 20,
2015).
\22\ Coalition Comment in response to Deferred Registration
Examination Study NOI, at 3 (Jan. 24, 2022); Shaftel & Schmelzer
Comment in response to Registration Modernization NOI, at 6 (Jan.
11, 2019); AMI Comment in response to Visual Works NOI, at 13
(undated).
\23\ AMI Comment in response to Visual Works NOI, at 13
(undated); see also Coalition Comment in response to Deferred
Registration Examination Study NOI, at 3 (Jan. 24, 2022); Shaftel &
Schmelzer Comment in response to Registration Modernization NOI, at
6, 36 (Jan. 11, 2019).
\24\ See, e.g., Shaftel & Schmelzer Comment in response 2019 Fee
Study NPRM, at 12 (Sept. 20, 2018). In response to a survey
conducted by the Graphic Artists Guild, 41% of the participants said
they do not register their works because ``I don't understand how''
and another 18% said they do not register because ``[t]he form . . .
is too difficult.'' Graphic Artists Guild Comment in response to
Visual Works NOI, at 12-13 (July 15, 2015).
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II. The Proposed Rule

The Office recognizes the challenges facing individual visual
artists and small businesses in registering two-dimensional artwork one
work at a time. These challenges may result in many artists not
submitting their works for registration. At the same time, registration
is a necessary step to enforce their copyrights. Thus, the Office finds
there is a legitimate need for a new group registration option for
published two-dimensional artwork.
The Office proposes a new option, to be known as ``GR2D.'' This
option is intended to benefit individual creators and small businesses
that otherwise might not use the Standard Application or the Single
Application to register their published works. Under the proposed rule,
an applicant will be able

[[Page 11791]]

to register up to ten published two-dimensional artworks with one
filing fee by submitting an online application and uploading a digital
deposit copy of each work. Each work must be a single two-dimensional
pictorial or graphic work. Three-dimensional works and works containing
multiple images will not be eligible for this option.
In all cases, the works must be created by the same author and that
author must be the copyright claimant for each work in the group. The
works must have been published within a 30-day period, and the
applicant must identify the title and publication date for each work.
Each of these requirements is discussed below.
In proposing this new option, the Office acknowledges that visual
artists have expressed interest in other accommodations, such as
registering published and unpublished works with the same application,
and providing flexible methods of paying for registration services,
such as tiered pricing, subscription plans, and bulk payment
options.\25\ As explained in this document, the Office will take these
interests into consideration as part of the ongoing development of the
new Enterprise Copyright System (``ECS'').
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\25\ See Coalition Comment in response to Deferred Registration
Examination Study NOI, at 21 (Jan. 24, 2022) (advocating for
registration option to combine published and unpublished works);
Copyright Alliance Comment in response to Deferred Registration
Examination Study NOI, at 32 (Jan. 24, 2022) (same); Shaftel &
Schmelzer Comment in response to Deferred Registration Examination
Study NOI, at 16-17 (Jan. 22, 2022) (same); AMI Comment in response
to Online Publication NOI, at 8 (Mar. 19, 2020) (same); see also
Coalition Comment in response to Deferred Registration Examination
Study NOI, at 20, 21 (Jan. 24, 2022) (advocating for alternative
pricing schemes); Copyright Alliance Comment in response to Deferred
Registration Examination Study NOI, at 3, 32 (Jan. 24, 2022) (same);
Shaftel & Schmelzer Comment in response to Deferred Registration
Examination Study NOI, at 21-22, 27 (Jan. 22, 2022) (same).
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A. Eligibility Requirements

This section discusses the eligibility requirements for this new
group registration option.
1. Types of Works That May Be Included
To qualify for this option, a work must be a pictorial or graphic
work that has been fixed in a two-dimensional form. Representative
examples of works that would be eligible for GR2D include paintings,
illustrations, sketches, collages, cartoons,\26\ character artwork,
logos, commercial art,\27\ textile designs,\28\ as well as
representational or abstract artwork.\29\
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\26\ This category includes comic strips that are published as
one work.
\27\ Commercial art includes many different types of works that
are intended to advertise, market, or promote a product, service, or
event. Representative examples of works that fit within this
category include proposals and pitch documents, advertisements,
billboards, posters, brochures, postcards, mailers, and flyers. This
category also includes two-dimensional commercial products, such as
stickers, stationery, greeting cards, and the like.
\28\ This category includes two-dimensional designs that are
woven into or applied to cloth or fabric.
\29\ This category includes works created in a variety of media,
such as paint, ink, pencil, as well as digital artwork.
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Each work in the group must consist of no more than a single
pictorial or graphic work, such as one drawing, one illustration, one
comic strip, or one fabric design, and the work must be deposited in
one uploaded file. Works comprised of multiple pictorial or graphic
works, such as catalogs, coloring books, children's picture books,
comic books, calendars, or style guides will not be eligible for this
option. Likewise, the Office will not accept GR2D claims including a
compilation, a collective work, a database, or a website, as such works
contain or are comprised of multiple works of authorship.
The Office does not see an equivalent need to include three-
dimensional pictorial, graphic, or sculptural works under this option.
A work that is fixed in a three-dimensional form necessarily requires
more time to design than a work that is fixed in two dimensions, and is
less likely to be manufactured, packaged, and distributed with a short
turn-around time or a rapid publication schedule. During the Office's
most recent fee study, the Coalition conducted a survey that supports
this conclusion. Artists who typically create three-dimensional works
were asked ``[o]n the average . . . [h]ow many finished works of art/
design do you produce in a year?'' \30\ More than 63% of the
participants said they produce between one and fifty works per year,
which suggests that even the most prolific sculptor may produce less
than five finished works per month.\31\ Moreover, registering a three-
dimensional work usually requires multiple deposits showing each side
of the work. When an applicant uploads multiple files to the
registration system, they are ingested into the registration system in
random order, making it difficult to match the files for each work with
the corresponding title listed in the application.
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\30\ Coalition Comment in response to 2019 Fee Study NPRM, App.
B, at 44 (Oct. 11, 2018). The participants who completed this part
of the survey include fine artists, sculptors, jewelry designers,
and architects. Id. at 42.
\31\ Id. at 44.
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Similarly, this group registration option may not be used to
register architectural works or technical drawings, even though these
works may be fixed in a two-dimensional form. Current regulations state
that ``[m]ultiple architectural works may not be registered using one
application.'' \32\ Additionally, claims involving architectural works
and technical drawings tend to be complex, so grouping them would
impose a significant examination burden on the Office's Visual Arts
Division.
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\32\ 37 CFR 202.11(c)(3).
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Likewise, this option may not be used to register multiple works of
applied art, such as the design of a useful article or a work of
artistic craftsmanship.\33\ These types of works take more time to
examine because the Office must determine if the object shown in the
deposit is a work of art that might also serve a useful purpose, or if
it contains pictorial or graphic features that can be identified
separately from and are capable of existing independently of the
object's utilitarian aspects.\34\ The application of such a complex
analysis to multiple works submitted at the same time on one
application would be cost prohibitive.
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\33\ Works of applied art are usually fixed in a three-
dimensional form, which would also make them ineligible for this
option.
\34\ See U.S. Copyright Office, Compendium of U.S. Copyright
Office Practices secs. 924, 925 (3d ed. 2021) (``Compendium
(Third)'').
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If an applicant submits a work that is not eligible for this group
registration option, the examiner may remove the title and deposit for
that work from the registration record and send a post-registration
email to the applicant explaining why the change was made. In cases
where an applicant submits two-dimensional identifying material
depicting a three-dimensional work of authorship (such as a drawing of
a toy or a piece of jewelry), the examiner may register the two-
dimensional pictorial or graphic expression and add an annotation
confirming that the registration does not cover any three-dimensional
authorship that is shown in the deposit. If the applicant wants to
subsequently pursue a separate registration for a work that is not
eligible for GR2D, it may submit a Single or Standard Application,
which will require an additional filing fee and result in a later
effective date of registration.
2. Number of Works That May Be Included
Under the proposed rule, applicants will be able to submit up to
ten published pictorial or graphic works with each application. The
examiner will review each work for copyrightable

[[Page 11792]]

authorship, and if the claim is approved, the registration will cover
each work on a separate basis. If an applicant submits more than ten
works, the examiner may accept the first ten titles listed in the
application, remove the additional titles from the registration record,
and send a post-registration email notifying the applicant that those
works were not included in the registration.
The Office considered a number of factors in setting a proposed
limit for this group registration option.
i. Technical, Financial, and Implementation Considerations
As discussed above, the proposed rule is intended to improve the
registration process for visual artists as soon as possible by
providing a means for registering multiple published works through the
current registration system. To minimize development costs and time,
the Office intends to create a new application using the technical
specifications for the group registration option for unpublished works
(``GRUW'') application, an existing application option which can be
used to register up to ten unpublished works. The GRUW application
contains ten spaces for providing the titles of the works being
registered, and technical validations that discourage applicants from
entering more than ten titles in the form. Because the GR2D application
will be cloned from this application, the same limitation will be
incorporated into the technical specifications for the new form.
The proposed new application for GR2D will reduce the amount of
time needed to design, build, and test this application, and limit the
diversion of resources from ECS development. It would be cost
prohibitive to build an entirely new application solely for the purpose
of accepting more than ten published works, particularly given that eCO
is a legacy system that will be decommissioned in the near future. More
importantly, building a new application from scratch would delay the
implementation of this proposal, and divert the limited resources being
used to develop the Office's next generation registration system.\35\
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\35\ By way of example, it took twenty-two months to develop and
release a brand-new application for registering a group of short
online literary works and a group of works published on the same
album. Compare 83 FR 65612 (Dec. 21, 2018) and 84 FR 22762 (May 20,
2019) with eCO Updates at 2, 3, U.S. Copyright Office (Oct. 29,
2020; Mar. 26, 2021), <a href="https://www.copyright.gov/eco/updates/eco-updates.pdf">https://www.copyright.gov/eco/updates/eco-updates.pdf</a>.
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ii. Data From Visual Artists
In proposing a limit on the number of works permitted under this
option, the Office also considered the data it received from groups
that represent visual artists. In 2018, the Coalition conducted a
survey that posed the following question: ``On the average, how many
works would you like to register each year but don't?'' \36\ In
response, 35% said they would like to register fewer than twenty-five
works per year, 36% said they would like to register between twenty-
five and 100 works, and 15% said they would like to register between
100 and 500 works.\37\ In other words, a majority of the people
surveyed (71%) expressed interest in registering no more than 100 works
each year, which comes to roughly eight works per month.
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\36\ Coalition Comment in response to 2019 Fee Study NPRM, App.
B, at 19 (Oct. 11, 2018).
\37\ Id. The survey participants included illustrators, graphic
artists, graphic designers, surface or textile designers, package
designers, signage and wayfinding designers, exhibit and display
designers, muralists, animators, storyboard artists, cartoonists, as
well as graphic novelists, web designers, typographers, and
calligraphers. Id. at 9-10.
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The Office also considered the number of works that visual artists
actually produce each year. In 2012, the Graphic Artists Guild
conducted a survey indicating that, on average, illustrators and
graphic designers produce 57.16 ``finished pieces of art/design in a
year.'' \38\ The Coalition's more recent 2018 survey posed a similar
question.\39\ In response, 55% said they produce between one to fifty
finished works each year, while almost 42% said they produce between
fifty-one to 500 finished works.\40\
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\38\ Graphic Artists Guild Comment in response to 2014 Fee Study
NPRM, at 3 (May 14, 2012).
\39\ Coalition Comment in response to 2019 Fee Study NPRM, App.
B, at 12 (Oct. 11, 2018) (asking ``On the average . . . [h]ow many
finished works of art/design do you produce in a year?'').
\40\ Id. These results are in line with the number of people
(71%) who said they would like to register between one and 100 works
each year. See id. at 19.
---------------------------------------------------------------------------

The Graphic Artists Guild explained that ``finished pieces'' are
published works, presumably because the artists distributed an
authorized copy of the work to one or more of their clients,\41\ or
offered to distribute them to a group of persons for the purpose of
further distribution or display.\42\ If an artist produced up to fifty
published works each year, then under the proposed rule, all of them
could be registered with five GR2D applications.\43\ This would
accommodate most of those artists who responded to the Coalition's
survey and the earlier survey conducted by the Graphic Artists Guild.
---------------------------------------------------------------------------

\41\ Graphic Artists Guild Comment in response to 2014 Fee Study
NPRM, at 3-4 (May 14, 2012). See 17 U.S.C. 101 (stating that
publication occurs when copies of a work are distributed ``to the
public by sale or other transfer of ownership, or by rental, lease,
or lending'').
\42\ Graphic Artists Guild Comment in response to 2014 Fee Study
NPRM, at 5 (May 14, 2012); see also 17 U.S.C. 101 (defining
``publication''); Letter from Mica Duran, AMI, to Shira Perlmutter,
Register of Copyrights, at 1 (July 10, 2023) (on file with Copyright
Office) (noting that medical illustrators often distribute multiple
sketch concepts to clients to be considered for further
distribution).
\43\ As discussed below, the proposed filing fee for GR2D would
be $85. Thus, the cost of registering up to fifty works would be
$425 per year or roughly $106 per quarter. That comes to $8.50 for
each work, which would be an 87% discount on the normal fee for
registering one published work for $65 with the Standard
Application.
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The Office recognizes that some visual artists are more prolific
than others. The surveys do not identify the total number of artists
who produce between fifty-one and 100 or between 100 and 500 finished
pieces per year. But as mentioned above, 35% of those surveyed by the
Coalition said they would like to register fewer than twenty-five works
each year, while 36% said they would like to register between twenty-
five and 100 works.\44\ Only 15% said they would like to register
between 100 and 500 works per year.\45\ These numbers suggest that more
than a third of the artists surveyed (35%) may be able to register all
of their published works with three GR2D applications, while another
36% may be able to register all of their published works with ten or
fewer GR2D applications.
---------------------------------------------------------------------------

\44\ Coalition Comment in response to 2019 Fee Study NPRM, App.
B, at 19 (Oct. 11, 2018).
\45\ Id.
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Finally, many stakeholders have noted that photographers are able
to register up to 750 works using the group registration option for
published photographs (known as ``GRPPH''). They have requested that
the Office create a similar option for visual artists or allow them to
register their works using the GRPPH application.\46\
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\46\ Coalition Comment in response to Registration Modernization
NOI, at 14-15, (Jan. 15. 2019); Shaftel & Schmelzer Comment in
response to Deferred Registration Examination Study NOI, at 30 (Jan.
22, 2022); Graphic Artists Guild Comment in response to Online
Publication NOI, at 6 (Mar. 19, 2020); AMI Comment in response to
Online Publication NOI, at 2 (Mar. 19, 2020); Graphic Artists Guild
Comment in response to Registration Modernization NOI, at 6 (Jan.
15, 2019); Graphic Artists Guild, American Photographic Artists, and
American Society for Collective Rights Licensing Comment in response
to 2019 Fee Study NPRM, at 3 (Sept. 21, 2018); Copyright Alliance
Comment in response to Group Photographs NPRM, at 2 (Jan. 31, 2017);
Coalition Comment in response to Group Photographs NPRM, at 5 (Jan.
30, 2017).
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Stakeholders offer two justifications for this request. First, they
argue that visual artists should be treated the same as photographers,
and that it is unfair to

[[Page 11793]]

let photographers register many more works with one application.\47\
Second, they argue that the deposit requirements for photographs and
other visual art works are the same, so the amount of time needed to
examine these works should also be the same.\48\ After considering
these arguments the Office has determined that there are legitimate
reasons for differentiating between the number of works that should be
permitted under GR2D and GRPPH.
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\47\ Shaftel & Schmelzer Comment in response to Registration
Modernization NOI, at 31 (Jan. 11, 2019); Coalition Comment in
response to Registration Modernization NOI, at 14 (Jan. 15, 2019);
Coalition Comment in response to 2019 Fee Study NPRM, at 35 (Oct.
11, 2018); Shaftel & Schmelzer Comment in response to 2019 Fee Study
NPRM, at 20 (Sept. 20, 2018); Letter from Mica Duran, AMI, to Shira
Perlmutter, Register of Copyrights, at 3-4 (July 10, 2023) (on file
with Copyright Office).
\48\ Shaftel & Schmelzer Comment in response to Registration
Modernization NOI, at 31 (Jan. 11, 2019); Shaftel & Schmelzer
Comment in response to 2019 Fee Study NPRM, at 31-32 (Sept. 20,
2018).
---------------------------------------------------------------------------

First, photographers are exceptionally prolific creators. As the
Office noted during the GRPPH rulemaking, ``[a] photographer may take
dozens or even hundreds of copyrightable images in a single session and
thousands of images over the course of a week, a month, or a year.''
\49\ While visual artists may produce significant numbers of published
works, it is unlikely that even the most prolific would be able to
produce as many works as the average photographer. The Coalition's
survey supports this hypothesis. Only 14% of the visual artists
surveyed said they create between 501 to 1,000 works in a single
year,\50\ while a majority of the photographers surveyed said they
produce a comparable number of photos in a single day.\51\
---------------------------------------------------------------------------

\49\ 81 FR 86643, 86649.
\50\ Coalition Comment in response to 2019 Fee Study NPRM, App.
B, at 13 (Oct. 11, 2018).
\51\ Id. at 32-33.
---------------------------------------------------------------------------

Second, GRPPH may only be used to register one specific type of
work. All of the works in the group must be photographs, all of them
must contain photographic authorship, and when the claim is submitted
the system automatically adds the term ``photographs'' to the ``author
created'' field.\52\ Works that contain any other form of authorship
are not eligible. As the Office noted when it established the group
registration option for unpublished works, ``[a]n examiner can more
easily review a large set of photographs for copyrightable authorship
than a large quantity of . . . other visual works.'' \53\ When
examiners review a GRPPH claim, they 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. This review often occurs relatively quickly as photographs
submitted for registration generally include some selection,
coordination, or arrangement sufficient to meet the minimum level of
creativity for copyright described in the Supreme Court's Feist
Publications v. Rural Telephone Service Company.\54\
---------------------------------------------------------------------------

\52\ 37 CFR 202.4(h)(1), (i)(1); Compendium (Third) sec.
1114.6(J).
\53\ 84 FR 3693, 3695 (Feb. 13, 2019).
\54\ 499 U.S. 340 (1991).
---------------------------------------------------------------------------

By contrast, GR2D may be used to register a wide range of pictorial
and graphic works. The issues presented and the time needed to complete
this examination may vary dramatically depending on whether the
applicant is registering a group of logos, a batch of commercial
artwork, or a collection of fabric designs. For example, when examining
fabric, examiners will look for repeating patterns in the design, and
when reviewing a logo, they will evaluate the textual and artistic
elements that make up the design as well as the interrelationship
between those elements. In some cases, applicants could include
different types of pictorial or graphic works within the same GR2D
application--such as a group that includes logos, advertisements, and
character art--which would further complicate the examination process.
As the Coalition acknowledged, a ``[o]ne-size-fits-all'' approach may
not be the most effective means for registering multiple works ``if
[the] deposits of particular types of visual works require more
examination time to determine copyrightability than others.'' \55\
Moreover, the Office has learned from its experience with GRUW that
works of visual art often contain borderline or de minimis amounts of
expression. Examining these works requires careful review, and
determinations must be made on a case-by-case basis. It would require a
prohibitive amount of time to conduct this level of analysis if dozens
of works were included within the same submission for one filing fee.
---------------------------------------------------------------------------

\55\ Coalition Comment in response to Group Photographs NPRM, at
57 (Jan. 30, 2017).
---------------------------------------------------------------------------

Third, GRPPH may only be used to register photographs that are
entirely new; it cannot be used to register derivative works. The
Office has explained that it will not accept group registration claims
involving ``digital editing'' or any other form of authorship ``other
than photographs.'' \56\ For this reason, the GRPPH application does
not have a limitation of claim screen where applicants may identify the
new material that the author contributed to each photograph or exclude
any preexisting material that appears in the images.
---------------------------------------------------------------------------

\56\ 81 FR 86643, 86650.
---------------------------------------------------------------------------

By comparison, GR2D may be used to register works that are entirely
new, as well as derivative works that are based on one or more
preexisting works, and the application will include a limitation of
claim screen that may be used for this purpose. Indeed, the Office is
creating this option in part based on its understanding that many
visual artists want to register multiple iterations of the same work.
When multiple versions are submitted with the same application or when
an applicant submits works that contain overlapping authorship, the
examiner must review each work for copyrightable authorship; and if
they are published on different dates, the examiner must determine if
there are copyrightable differences between each version. This is a
time-consuming process that requires significantly more analysis than a
claim involving a single work or a group of photographs that are
entirely new.
Finally, the Office must consider the impact this option will have
on the registration system. Allowing more than ten works of visual art
to be submitted with one application and one filing fee would burden
the Office's limited resources and may affect pendency times within the
Visual Arts Division. Based on its experience with GRUW, the Office has
determined that claims involving up to ten visual artworks require more
time to examine than claims involving up to 750 photographs. The
correspondence rates for GRUW are higher than the correspondence rates
for group photographs,\57\ and the average processing times for
registering a group of unpublished visual art works is nearly double
the processing times for a group of photographs--even though the group
registration option for unpublished photographs (known as ``GRUPH'')
and GRPPH applications may be used to register a significantly larger
number of works.\58\
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\57\ In the Visual Arts Division, the correspondence rate for
GRUW claims is 27%, while the correspondence rate for group
photograph claims is 19%.
\58\ On average, it takes the Office 2.4 months to process a
GRUW claim involving a group of unpublished visual art works, and
1.5 months to process a claim involving a group of photographs.
---------------------------------------------------------------------------

Nonetheless, the Office is committed to creating the best public
record possible for a group registration, including pertinent
information and an appropriate assessment of copyrightability for each
work within

[[Page 11794]]

the group. To achieve these goals, the Office must limit the number of
works submitted, given current staffing levels, the modest filing fee
proposed, and the amount of examination time needed. A limit of ten
published works would allow the Office to examine each work for
copyrightable authorship and confirm that the legal and formal
requirements for registration have been met. Establishing this number
within the eCO system will also allow the Office to conduct a targeted
study to determine whether the allowable number could be higher in the
ECS system, or whether the fee would need to be increased due to the
average examination times for this group option.
3. Title Requirements
Applicants will be required to provide a title for each work that
is included in the group. The title may consist of words, letters, and/
or numbers, as long as it is entered in the application with Arabic
numerals and/or Roman letters. However, the Office discourages
applicants from stating ``untitled,'' ``no title,'' ``working title,''
or the like, because interested parties typically search for works by
title, and it may be difficult to locate a specific pictorial or
graphic work unless a recognizable title has been provided.
As discussed below, applicants will be required to upload an
electronic deposit copy of each work. The file name assigned to each
work must include the corresponding title that was entered in the
application. If the titles and file names do not match, the examiner
may remove the mismatched titles and files from the registration record
and send a post-registration email to the applicant explaining why the
change was made. Establishing efficient titling procedures will prove
beneficial in the new ECS system where applicants will have the option
of using the file name as the default title for the works they upload,
thereby reducing the time it takes to complete a group registration
application.\59\
---------------------------------------------------------------------------

\59\ Mandatory file naming conventions are already required for
the group registration options for serials, newspapers, newsletters,
short online literary works, as well as musical works and sound
recordings published on the same album. 37 CFR 202.4(d)(3), (e)(6),
(f)(3), (j)(7), (k)(3)(iii).
---------------------------------------------------------------------------

A title for the group as a whole will be added automatically by the
electronic registration system, consisting of the title of the first
work listed in the application followed by the phrase ``and [NUMBER]
other published works'' (depending on how many titles are entered in
the application).\60\ In this respect, the group title will be similar
to the format of the group title for a GRUW registration.\61\ The
Office will use this title to identify the registration in its online
public record.
---------------------------------------------------------------------------

\60\ If the applicant provides a ``collection'' title in the
application (instead of or in addition to providing titles for the
individual works) the examiner will remove that term from the
registration record before the claim is approved.
\61\ 82 FR 47415, 47417-18.
---------------------------------------------------------------------------

4. Publication Requirements
An applicant will be allowed to register a group of two-dimensional
artwork only if the works were all first published within a thirty-day
period, regardless of whether they were published in a physical or
electronic form. The works need not be published within the same
calendar month or the same calendar year. For example, a visual artist
would be able to register works published anytime between December 15,
2023, and January 14, 2024.
The Office is proposing a thirty-day period for two reasons. First,
a tighter limit protects the quality and utility of the public record.
For ease of use, the Office will require applicants to provide only the
earliest and most recent publication dates for the works submitted in
the group, rather than the exact publication date for each individual
work. If the Office extended the period, it would likely require
applicants to provide the exact date of publication for each individual
work. An indication of only the earliest and most recent publication
dates for multiple works published over the course of several months
would make it difficult for those who rely on the public record to
determine whether the work is eligible for certain remedies for
infringement.\62\
---------------------------------------------------------------------------

\62\ See 17 U.S.C. 412.
---------------------------------------------------------------------------

Second, providing a thirty-day time period for eligible works
expedites the creation of an effective GR2D application. The current
online registration system is equipped to compare the number of days
between two dates, which would validate an application's compliance
with the thirty-day requirement. If the Office extended the period to
span several months, thus necessitating precise dates of publication
for each individual work, the eCo system would not be able to validate
for multiple dates of publication. Further, because the eCo system
cannot currently accept multiple dates of publication within
registration applications, applicants would likely have to submit a
separate spreadsheet that includes the title and publication
information for each work in the group. Without validations to ensure
compliance and a streamlined method for ingesting multiple publication
dates, the application process would be less efficient, increasing
correspondence and, as a result, processing times.
Subject of Inquiry: The Office acknowledges that a thirty-day limit
may be less desirable for certain applicants. Therefore, the Office
seeks public comment on whether the thirty-day time period strikes the
right balance between the public interest in creating a meaningful
record (i.e., collecting precise publication information for works
published over the course of several months) and the relative burden on
applicants. Commenters proposing a different time period should address
the concerns identified in this document with regard to creating
additional burdens on the Office.
The GR2D group registration option may only be used to register
published works. It cannot be used to register a group of published and
unpublished works in the same claim. The applicant will be responsible
for determining if the works have been published, and for identifying
the earliest and most recent publication date for the works submitted
in the group, along with the country where the works were first
published. Applicants are only required to identify the date that the
work was published for the first time, generally when the artist first
distributes an authorized copy of the work to a member of the public.
In particular, the Office will generally accept that a work has been
published when a visual artist distributes a copy to a client or other
entity and authorizes them to retain, reproduce, redistribute, or
display that copy (subject to any licenses or other restrictions that
the artist may impose).\63\ The fact that the client may subsequently
share the work with its own customers or republish it in some other
form is irrelevant. In other words, it is the visual artist who decides
if, when, where, and how their work is published (rather than the
client or the client's customers or any other party).\64\

[[Page 11795]]

As a general rule, the Office will accept the applicant's
determinations, unless they are contradicted by the information
contained within the registration materials.
---------------------------------------------------------------------------

\63\ For detailed examples that illustrate these principles, see
Chapter 1100, Sections 1114.5 and 1114.6(G) of the Compendium of
U.S. Copyright Office Practices. See also Response of the Register
of Copyrights to Request Pursuant to 17 U.S.C. 411(b)(2), Lisa
Brunson v. David Cook dba Integrity Music, Capitol CMG, Inc., No.
3:20-cv-01056 (M.D. Tenn. Jan. 29, 2024) (discussing the publication
status of a work that was distributed to various social media
platforms), <a href="https://www.copyright.gov/rulings-filings/411/Lisa-Brunson-v-David-Cook-dba-Integrity-Music-Capitol-CMG-Inc-No-320-cv-01056-MD-Tenn.pdf">https://www.copyright.gov/rulings-filings/411/Lisa-Brunson-v-David-Cook-dba-Integrity-Music-Capitol-CMG-Inc-No-320-cv-01056-MD-Tenn.pdf</a>.
\64\ To obtain the optimal statutory protection, the Office
encourages visual artists to register their works before they are
published. Stakeholders have stated that visual artists often
produce preliminary concepts, drafts, sketches, and layouts as part
of their iterative creative process, and may send multiple drafts to
their clients for review and approval. While the client may receive
a license to use the finished design, the artist generally retains
the copyright in their initial drafts. In some cases, the client may
use these drafts without obtaining an appropriate license for this
material. Visual artists can protect against this risk by timely
registering their drafts with the GRUW application (i.e., as a group
of unpublished works) before sending an authorized copy of the works
to the client or any other party.
---------------------------------------------------------------------------

The Office recognizes that many visual artists would like to
register all the works they create for the same client or the same
project and would prefer to submit all of their works with the same
application, regardless of whether they are published or
unpublished.\65\ Unfortunately, this is not possible given the
technical constraints of the current registration system.
---------------------------------------------------------------------------

\65\ AMI Comment in response to Online Publication NOI, at 8
(Mar. 19, 2020); Shaftel & Schmelzer Comment in response to
Registration Modernization NOI, at 28 (Jan. 11, 2019); Letter from
Mica Duran, AMI, to Shira Perlmutter, Register of Copyrights, at 4
(July 10, 2023) (on file with Copyright Office).
---------------------------------------------------------------------------

The statute states that a registration application must identify,
``if the work has been published, the date and nation of its first
publication.'' \66\ These requirements are embedded in both the eCO
system and the Office's internal processes. For example, when the
Office issues a group registration, the prefix assigned to the
registration number begins with the letters VA if the work is published
or the letters VAU if the work is unpublished. When the Office
registers a group of published works, the certificate and the public
record include the date and nation of publication that was provided in
the application. When the Office registers a group of unpublished
works, this information does not appear in the record. If applicants
were allowed to combine published and unpublished works in the same
application, the registration number would be misleading. And at the
present time, the Office does not have the ability to issue a
certificate or a public record that would clearly delineate the
published works from the works that have not been published yet.
However, the Office will take these interests into account when it
begins to develop the requirements for the group registration features
of its next-generation registration system, and will consider the
feasibility of allowing published and unpublished works to be
registered with the same application when the group applications are
migrated into this system.\67\
---------------------------------------------------------------------------

\66\ 17 U.S.C. 409(8).
\67\ The Copyright Alliance, the Coalition, and AMI have
acknowledged that applicants would still be required to separately
identify each published and unpublished work and provide a month,
day, and year of publication for each published work. 83 FR 2542,
2545 (Jan. 18, 2018); Letter from Mica Duran, AMI, to Shira
Perlmutter, Register of Copyrights, at 4 (July 10, 2023) (on file
with Copyright Office).
---------------------------------------------------------------------------

5. Author and Claimant Requirements
Under the proposed rule, all the works must be created by the same
author. Applicants will not be allowed to submit groups of works
created by different authors. Likewise, the Office will not accept
applications claiming that two or more authors jointly created each
work in the group. The Office conducted an analysis of the claims
submitted on the Standard and GRUW applications that were approved for
registration with a claim in ``2D artwork'' and found that in the vast
majority of cases just one author is named in the application. The
Office therefore does not see a compelling need to allow joint
authorship claims within this group registration option. The Office
welcomes comment on this proposed limitation.
In all cases, the claim will be limited to ``2D artwork'' and that
term will be added automatically to the application by the electronic
registration system. Applicants will not be allowed to assert claims in
other forms of authorship, such as ``text,'' ``sculpture,'' ``jewelry
design,'' ``3D artwork,'' or ``audiovisual material.'' Likewise,
applicants will not be able to add other forms of authorship to the
claim during the examination process or with a supplementary
registration.\68\
---------------------------------------------------------------------------

\68\ For example, if an applicant submits an animated image, the
registration will cover the ``two-dimensional artwork'' shown in the
moving image. In this situation, the examiner may add an annotation
explaining that the Office did not examine the audiovisual elements
of the work.
---------------------------------------------------------------------------

The author must also be named as the copyright claimant, even if a
transfer of ownership for the copyright in each work has occurred.\69\
For instance, if Mary Watson created ten medical illustrations and
transferred all of her rights to the publisher of a medical textbook,
Mary would have to be named as the claimant for each illustration, even
though the publisher owns the copyrights.\70\ This is consistent with
the basic principle that an author may always be named as the copyright
claimant, even if they do not own any of the exclusive rights when the
claim is submitted.\71\ It also accounts for the majority of claims
approved by the Visual Arts Division within the past five years. The
Office found that fewer than 12% of the claims approved by the Visual
Arts Division during this period contained a statement indicating that
the author had transferred the copyright to another party.
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\69\ If the author transferred the copyright to another person
or entity, the copyright owner may add that information to the
public record by recording the assignment, exclusive license, bill
of sale, or other document that identifies the current owner(s) of
each work. This may be done quickly and efficiently through the
Office's new electronic recordation system. See Recordation System,
U.S. Copyright Office, <a href="https://copyright.gov/recordation/pilot/">https://copyright.gov/recordation/pilot/</a>.
\70\ The proposed rule explains that the claim may be submitted
by any of the parties listed in sec. 202.3(c)(1) of regulations,
including the author of the works (such as Mary Watson), the owner
of one or more of the exclusive rights in the works (such as the
publisher of the textbook), or a duly authorized agent of one or
more of these parties (such as the agents who represent Mary and/or
the publisher).
\71\ See 37 CFR 202.3(a)(3)(i); Compendium (Third) sec. 619.7.
---------------------------------------------------------------------------

The Office has taken a similar approach with the group registration
option for unpublished works.\72\ Based on this experience, the Office
expects this same approach will simplify the examination process by
allowing examiners to focus on the copyrightability of each work. If an
applicant erroneously names a third party as the author/claimant on a
GR2D application--instead of naming the apparent author of the work--
the Office may accept that assertion at face value and approve the
claim as is. In such cases, the examiner may send a post-registration
email notifying the applicant that the author/claimant information
seems questionable and explaining that if the wrong party was named as
the author/claimant, the applicant may correct the mistake with a
supplementary registration (which will require a separate application
and an additional filing fee).
---------------------------------------------------------------------------

\72\ See 37 CFR 202.4(c)(5).
---------------------------------------------------------------------------

6. Works Made for Hire
As discussed above, this group registration option is intended for
visual artists who routinely create and publish a large volume of
works, who do not have the time or resources to register their works
with the Office. Corporate entities that employ in-house designers, or
entities that hire independent contractors to produce works on their
behalf, do not face the same challenges as small creators. In most
cases, these entities can afford to pay the normal filing fee and do
not need special incentives to participate in the registration process.
For this reason, the Office considered limiting the proposed option to
works created by individual authors.

[[Page 11796]]

However, stakeholders have informed the Office that many authors
are small business owners who face similar economic challenges and
resource limitations.\73\ While the Office may be able to offer
different tiers of services for different types of creators as part of
its next-generation registration system, it does not have a means of
distinguishing a small business from a large corporate entity within
the context of the eCO system.
---------------------------------------------------------------------------

\73\ AMI Comment in response to Deferred Registration
Examination Study NOI, at 6 (Jan. 24. 2022); Shaftel & Schmelzer
Comment in response to Deferred Registration Examination Study NOI,
at 22-23 (Jan. 22. 2022); Coalition Comment in response to Group
Photographs NPRM, at 17 (Jan. 30, 2017); Copyright Alliance Comment
in response to Visual Works NOI, at 2 (undated); Graphic Artists
Guild Comment in response to Visual Works NOI, at 22 (July 20,
2015).
---------------------------------------------------------------------------

Accordingly, for the time being, the proposed rule will allow two-
dimensional pictorial or graphic works to be registered by any
applicant as works made for hire. To do so, all of the works in the
group must be identified as works made for hire, and the employer or
the party that ordered or commissioned the works, must be named as the
author/claimant. Applicants will not be able to register as a group
works created by an individual author together with works created
pursuant to a work made for hire agreement. For example, if a small
business commissioned a set of fabric designs through a work made for
hire agreement and acquired another set of designs through an
assignment of copyright from an individual author, the applicant would
need to divide those designs into two groups and submit a separate GR2D
application for each group--one with the small business named as the
author/claimant and the work made for hire question answered ``yes,''
and the other with the individual author named as the author/claimant
with the question answered ``no.''

B. Application Requirements

As explained above, the proposed rule would rely on an existing
group registration application form using the current registration
system to avoid delaying the creation of a new group option for visual
artists. The Office will revise the onscreen instructions so that the
modified GR2D application may be used for claims involving published
two-dimensional artwork. Specific instructions on how to complete the
new application will be provided within the application itself and
through the Office's traditional channels, including its website,
Circulars, and/or Chapter 1100 of the Compendium of U.S. Copyright
Office Practices.
Under the proposed rule, GR2D claims may not be submitted on a
paper application.\74\ When the Office has established new group
registration options or updated its regulations governing existing
options, it has consistently required these claims to be filed
electronically,\75\ and the rationale provided in those proceedings
applies equally here.\76\ As is the case with other group registration
options, the proposed rule will allow the Office to waive this online
filing requirement in exceptional cases.\77\
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\74\ Likewise, the online-filing requirement will apply to the
supplementary registration procedure, which may be used to correct
or amplify the information in an existing registration. The Office
has consistently stated that if it moves ``registrations for other
classes of works into the electronic registration system,'' the
procedure for correcting or amplifying those registrations will ``be
subject to this same [online filing] requirement.'' 81 FR 86656,
86658 (Dec. 1, 2016). Thus, if an applicant needs to amend a
registration for a group of two-dimensional artwork, that request
will need to be submitted through the electronic registration
system. See 37 CFR 202.6(e)(1). To minimize development costs, the
Office does not plan to create a separate application form for this
purpose. Instead, applicants will use the existing form for seeking
a supplementary registration, and they will need to contact the
Office of Registration Policy & Practice to obtain instructions on
how to complete this form.
\75\ 37 CFR 202.4(c)(8), (d)(2), (e)(5), (f)(2), (g)(6), (h)(8),
(i)(8), (j)(8), (k)(2).
\76\ 81 FR 86643; 82 FR 47415, 47419; 82 FR 52224, 52227 (Nov.
13, 2017); 83 FR 65612, 65615; 84 FR 22762, 22766.
\77\ 37 CFR 202.4(c)(10), (d)(4), (f)(4), (g)(9), (h)(11),
(i)(11), (j)(9), (k)(4).
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C. Deposit Requirements

Under the proposed rule, applicants will be required to submit one
complete copy of each work in the group. A digital copy of each work
must be uploaded to the electronic registration system, regardless of
whether the work was published in a digital or physical form. Because
the vast majority of claims received by the Visual Arts Division are
submitted with electronic deposits, this requirement should not have an
adverse impact on most applicants.\78\
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\78\ As a general rule, the Office will not accept physical
copies, even if the works were published in a physical form. As is
the case with other group registration options, the proposed rule
will allow the Office to grant special relief from the deposit
requirement in exceptional cases. See 37 CFR 202.20(d)(1)(iii),
(iv).
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The Office will accept a copy that shows each work on its own,
disassociated from the context where it was first published. For
example, if the author created five graphic designs and published those
designs on her website, the applicant may upload five files that each
contain a complete copy of each work, appearing entirely on its own
(instead of submitting a screenshot showing how each design appeared on
the website where it was first published). Likewise, if the works were
published in a physical form, applicants will not be expected to submit
a copy of the best edition of each work. For instance, if the author
created ten medical illustrations that were first published in a
textbook, the applicant should upload a complete copy of each
illustration but should not submit a physical copy of the book itself.
To qualify for this group registration option, applicants will need
to comply with certain technical requirements. First, each work must be
contained in a separate electronic file, each file must be uploaded to
the electronic registration system in one of the acceptable file
formats listed on the Office's website, and the size of each file must
not exceed 500 megabytes.\79\ If necessary, applicants may save the
files in a .zip folder and upload it to the system, provided that all
of the files within the folder are acceptable file types.
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\79\ See eCO Acceptable File Types, U.S. Copyright Office,
<a href="https://www.copyright.gov/eco/help-file-types.html">https://www.copyright.gov/eco/help-file-types.html</a>.
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Second, each file must be submitted in an orderly manner. A
submission file will be considered ``orderly'' if it contains no more
than one pictorial or graphic work, if the title of that work is
included in the file name, and if the file name can be matched to the
corresponding title that is listed in the application. If an applicant
submits a file that contains multiple pieces of artwork or if the
titles and file names do not match each other, the examiner may remove
that file from the record and send the applicant a post-registration
email explaining that those works were not included in the
registration.

D. Filing Fee

The filing fee for registering a group of two-dimensional artworks
will be $85, the amount the Office currently charges for registering a
group of unpublished works.\80\ The Office believes it is reasonable to
charge the same fee based on the similarity in the number of works that
may be registered and the expected workflow for examining, indexing,
and cataloging these claims. Once the proposed rule has been
implemented, the Office will monitor both the cost and the demand for
this service to determine if future fee adjustments are warranted. This
represents a substantial cost saving for visual artists. For example,
if an artist created twenty-six illustrations and billed her client
$4500 for this project,

[[Page 11797]]

she would be able to register all of her works for $255--significantly
less than the $1170 to $1690 she normally would pay to register each
individual work with the Single or Standard Applications.\81\
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\80\ 37 CFR 201.3(c)(10).
\81\ See Letter from Mica Duran, AMI, to Shira Perlmutter,
Register of Copyrights, Ex. 1 (July 10, 2023) (on file with
Copyright Office). 1 Coalition Comment in response to 2019 Fee Study
NPRM, App. B, at 11 (Oct. 11, 2018).
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The Office recognizes that visual artists are interested in tiered
fee structures, subscription plans, and bulk registration options.\82\
Under a tiered-fee approach, the Office could charge a base fee for
registering an individual work, and an incrementally higher fee for
each additional work added to the application. Alternatively, it could
charge a flat rate that would let visual artists register a specific
number of works over a designated period of time. The Office previously
sought public comment on these issues,\83\ but as explained above, it
will not be able to offer alternate fee structures for high volume
creators until after the ECS system is fully operational and has been
released to the public.\84\
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\82\ Coalition Comment in response to Deferred Registration
Examination Study NOI, at 21 (Jan 24. 2022); Shaftel & Schmelzer
Comment in response to Deferred Registration Examination Study NOI,
at 21-22 (Jan. 22, 2022); Shaftel & Schmelzer Comment in response to
Registration Modernization NOI, at 8 (Jan. 11, 2019); Coalition
Comment in response to Group Photographs NPRM, at 17 (Jan. 30,
2017); Graphic Artists Guild Comment in response to Visual Works
NOI, at 9 (July 20, 2015); Graphic Artists Guild Comment in response
to 2014 Fee Study NPRM, at 5 (May 14, 2012).
\83\ 83 FR 52336, 52339.
\84\ 83 FR 2542, 2545.
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E. The Scope of a Group Registration

The Office will review each work in the group to determine if it
contains a sufficient amount of original pictorial or graphic
authorship. If the legal and formal requirements have been met, the
examiner will register the claim, and the certificate and public record
will contain an annotation indicating that the works were registered in
accordance with those requirements.
Consistent with the regulations governing other group registration
options,\85\ the proposed rule will cover each pictorial or graphic
work in the group, and each piece of artwork will be considered to be
registered as a separate work. Thus, if any of the works are
subsequently infringed, the copyright owner should be entitled to seek
a separate award of statutory damages for each individual work, and the
group as a whole should not be considered a compilation or a collective
work for purposes of sections 101, 103(b), or 504(c)(1) of the
Copyright Act.\86\ To that end, the proposed rule confirms that the
group itself is merely an administrative classification created solely
for the purpose of registering multiple pictorial or graphic works with
a single application and filing fee.
---------------------------------------------------------------------------

\85\ See 37 CFR 202.4(r) (specifying the scope of a registration
for a group of unpublished works, contributions to periodicals,
photographs, or works published on the same album).
\86\ Several stakeholders have expressed support for this
approach. Shaftel & Schmelzer Comment in response to Deferred
Registration Examination Study NOI, at 28 (Jan. 22, 2022); AMI
Comment in response to Registration Modernization NOI, at 4 (Jan.
15, 2019); Shaftel & Schmelzer Comment in response to Registration
Modernization NOI, at 30 (Jan. 11, 2019); AMI Comment in response to
2019 Fee Study NPRM, at 3-4 (Sept. 18, 2018); Graphic Artists Guild
Comment in response to Visual Works NOI, at 13-14 (July 20, 2015).
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III. Conclusion

The proposed rule is intended to facilitate broader participation
in the registration system by establishing a new group registration
option for individual artists and small businesses that publish two-
dimensional pictorial or graphic works. The Office invites comment on
this proposal.

List of Subjects

37 CFR Part 201

37 CFR Part 202

Proposed Regulations

For the reasons set forth in the preamble, the Copyright Office
proposes amending 37 CFR parts 201 and 202 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

Authority: 17 U.S.C. 702.
Section 201.10 also issued under 17 U.S.C. 304.

0
2. In Sec. 201.3:
0
a. Revise paragraph (c)(10);
0
b. Redesignate paragraphs (c)(12) through (29) as (c)(13) through (30),
respectively; and
0
c. Add a reserved paragraph (c)(12).
The revision reads as follows:

Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Section and
the Copyright Claims Board.

* * * * *
(c) * * *

Table 1 to Paragraph (c)
------------------------------------------------------------------------
Registration, recordation, and related services Fees ($)
------------------------------------------------------------------------

* * * * *
(10) Registration of a claim in a group of unpublished works 85
or a claim in a group of two-dimensional artwork...........

* * * * *
------------------------------------------------------------------------

* * * * *

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
3. The authority citation for part 202 continues to read as follows:

Authority: 17 U.S.C. 408(f), 702.

0
4. Amend Sec. 202.4 by:
0
a. Adding paragraph (l).
0
b. In paragraph (r), by removing ``(k), or'' and adding in its place
``(k), (l), or''.
The addition and revision read as follows:

Sec. 202.4 Group registration.

* * * * *
(l) Group registration of two-dimensional artwork. Pursuant to the
authority granted by 17 U.S.C. 408(c)(2), the Register of Copyrights
has determined that a group of two-dimensional artwork may be
registered in Class VA with one application, the required deposit, and
the filing fee required by Sec. 201.3(c) if the following conditions
are met:
(1) All the works in the group must be two-dimensional pictorial or
graphic works, and each work must be comprised of no more than one
pictorial or graphic work. The group may include up to ten works, and
the application must specify the total number of works that are
included in the group. The group may not include any three-dimensional
pictorial, graphic, or sculptural works, any architectural works,
technical drawings, or works of applied art, any works comprised of
multiple pictorial or graphic works, including compilations, collective
works, databases, or websites. Claims in any form of authorship other
than ``2D artwork'' or claims in the selection, coordination, or
arrangement of the group as a whole will not be permitted on the
application.
(2) The applicant must provide a title for each work in the group.
(3) All the works must be created by the same author, and the
author must be named as the copyright claimant for each work in the
group. The group may not include any works created by more

[[Page 11798]]

than one author. The works may be registered as works made for hire if
they are identified in the application as such.
(4) All the works must be published within a thirty-day period, and
the application must identify the date of publication for each work.
(5) The applicant must complete and submit the online application
designated for a group of two-dimensional artwork. The application may
be submitted by any of the parties listed in Sec. 202.3(c)(1).
(6) The applicant must submit one complete copy of each work. The
works must be assembled in an orderly form with each work contained in
a separate electronic file. The file name for each work must match the
title as submitted on the application. All of the works must be
submitted in one of the electronic formats approved by the Office, and
they must be uploaded to the electronic registration system. The file
size for each uploaded file must not exceed 500 megabytes; the files
may be compressed to comply with this requirement.
(7) In an exceptional case, the Copyright Office may waive the
online filing requirement set forth in paragraph (l)(5) of this section
or may grant special relief from the deposit requirement under Sec.
202.20(d) of this chapter, subject to such conditions as the Associate
Register of Copyrights and Director of the Office of Registration
Policy and Practice may impose on the applicant.
* * * * *

Sec. 202.6 [Amended]

0
5. In Sec. 202.6, amend paragraph (e)(2) by removing ``or a group of
works published on the same album registered under Sec. 202.4(k),''
and adding in its place ``a group of works published on the same album
registered under Sec. 202.4(k), or a group of two-dimensional artwork
under Sec. 202.4(l),''.

Dated: February 9, 2024.
Suzanne Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2024-03063 Filed 2-14-24; 8:45 am]
BILLING CODE 1410-30-P

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