Group Registration of Two-Dimensional Artwork, 11789-11798 [2024-03063]

Download as PDF Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules agency’s need for timely and robust input and to satisfy the stakeholder’s request. Accordingly, the comment period for this RFI is being extended and will now conclude on May 13, 2024. SUPPLEMENTARY INFORMATION: I. Background Brent Parton, Principal Deputy Assistant Secretary for Employment and Training, Labor. [FR Doc. 2024–03187 Filed 2–14–24; 8:45 am] BILLING CODE 4510–FP–P LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201, 202 [Docket No. 2024–2] Group Registration of TwoDimensional Artwork U.S. Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. AGENCY: 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 regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office website at https://copy right.gov/rulemaking/gr2d. 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 meft@ copyright.gov, or by telephone at 202– 707–8350. khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 The U.S. Copyright Office (‘‘Office’’) is proposing to create a new group registration option for works of twodimensional 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 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. 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. 1 17 U.S.C. 408(c)(1). generally 37 CFR 202.3(b)(5), 202.4(c)–(k), 2 See (o). 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. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 11789 A. Calls for a New Registration Option for Two-Dimensional Artwork 5 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 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’’). 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); E:\FR\FM\15FEP1.SGM Continued 15FEP1 11790 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 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 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 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). 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 VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 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 Second, the groups contend that individual artists and small businesses 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) PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 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 II. The Proposed Rule The Office recognizes the challenges facing individual visual artists and small businesses in registering twodimensional 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 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). E:\FR\FM\15FEP1.SGM 15FEP1 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules to register up to ten published twodimensional 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 twodimensional 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’’). A. Eligibility Requirements This section discusses the eligibility requirements for this new group registration option. khammond on DSKJM1Z7X2PROD with PROPOSALS 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 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). 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 VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 designs,28 as well as representational or abstract artwork.29 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 threedimensional 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. Similarly, this group registration option may not be used to register 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. 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. PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 11791 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. 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. 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 postregistration 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 threedimensional 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 32 37 CFR 202.11(c)(3). 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)’’). 33 Works E:\FR\FM\15FEP1.SGM 15FEP1 11792 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules 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. khammond on DSKJM1Z7X2PROD with PROPOSALS 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 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), https://www.copyright.gov/eco/updates/ecoupdates.pdf. VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 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. 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 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 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. 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. 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 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 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. 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. 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 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 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. 44 Coalition Comment in response to 2019 Fee Study NPRM, App. B, at 19 (Oct. 11, 2018). 45 Id. 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). E:\FR\FM\15FEP1.SGM 15FEP1 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 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. 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 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 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). 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. 52 37 CFR 202.4(h)(1), (i)(1); Compendium (Third) sec. 1114.6(J). 53 84 FR 3693, 3695 (Feb. 13, 2019). VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 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 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 caseby-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. 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 54 499 U.S. 340 (1991). Comment in response to Group Photographs NPRM, at 57 (Jan. 30, 2017). 56 81 FR 86643, 86650. 55 Coalition PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 11793 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. 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 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 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. E:\FR\FM\15FEP1.SGM 15FEP1 11794 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 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 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 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). 60 If the applicant provides a ‘‘collection’’ title in the application (instead of or in addition to VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 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. 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 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 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. 62 See 17 U.S.C. 412. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 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 thirtyday 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 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), https://www.copyright.gov/ rulings-filings/411/Lisa-Brunson-v-David-Cook-dbaIntegrity-Music-Capitol-CMG-Inc-No-320-cv-01056MD-Tenn.pdf. 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 E:\FR\FM\15FEP1.SGM 15FEP1 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS As a general rule, the Office will accept the applicant’s determinations, unless they are contradicted by the information contained within the registration materials. 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. 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 nextgeneration registration system, and will consider the feasibility of allowing published and unpublished works to be registered with the same application 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. 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). 66 17 U.S.C. 409(8). VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 when the group applications are migrated into this system.67 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 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 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). 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. 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, https://copyright.gov/recordation/ pilot/. PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 11795 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. 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 postregistration 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). 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. 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. 72 See 37 CFR 202.4(c)(5). E:\FR\FM\15FEP1.SGM 15FEP1 11796 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules 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. Accordingly, for the time being, the proposed rule will allow twodimensional 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.’’ khammond on DSKJM1Z7X2PROD with PROPOSALS 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. 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). VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 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 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 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 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). 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). PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 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. 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, 79 See eCO Acceptable File Types, U.S. Copyright Office, https://www.copyright.gov/eco/help-filetypes.html. 80 37 CFR 201.3(c)(10). E:\FR\FM\15FEP1.SGM 15FEP1 11797 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules 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 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 khammond on DSKJM1Z7X2PROD with PROPOSALS 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 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). 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. 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). VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 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. 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 Copyright, General provisions. 37 CFR Part 202 Copyright, Copyright claims, preregistration and registration. PART 201—GENERAL PROVISIONS 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. 2. In § 201.3: a. Revise paragraph (c)(10); ■ b. Redesignate paragraphs (c)(12) through (29) as (c)(13) through (30), respectively; and ■ c. Add a reserved paragraph (c)(12). The revision reads as follows: ■ ■ § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Section and the Copyright Claims Board. * * 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). Frm 00025 * * * * * * * * * 85 * * PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT 3. The authority citation for part 202 continues to read as follows: ■ Fmt 4702 4. Amend § 202.4 by: a. Adding paragraph (l). b. In paragraph (r), by removing ‘‘(k), or’’ and adding in its place ‘‘(k), (l), or’’. The addition and revision read as follows: ■ ■ ■ Group registration. * For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR parts 201 and 202 as follows: PO 00000 Fees ($) * * * * (10) Registration of a claim in a group of unpublished works or a claim in a group of two-dimensional artwork ................... § 202.4 Proposed Regulations * * (c) * * * Registration, recordation, and related services Authority: 17 U.S.C. 408(f), 702. 37 CFR Part 201 * TABLE 1 TO PARAGRAPH (c) Sfmt 4702 * * * * (l) Group registration of twodimensional artwork. Pursuant to the authority granted by 17 U.S.C. 408(c)(2), the Register of Copyrights has determined that a group of twodimensional artwork may be registered in Class VA with one application, the required deposit, and the filing fee required by § 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 threedimensional 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 E:\FR\FM\15FEP1.SGM 15FEP1 11798 Federal Register / Vol. 89, No. 32 / Thursday, February 15, 2024 / Proposed Rules 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 twodimensional artwork. The application may be submitted by any of the parties listed in § 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 § 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. * * * * * § 202.6 [Amended] 5. In § 202.6, amend paragraph (e)(2) by removing ‘‘or a group of works published on the same album registered under § 202.4(k),’’ and adding in its place ‘‘a group of works published on the same album registered under § 202.4(k), or a group of twodimensional artwork under § 202.4(l),’’. ■ Dated: February 9, 2024. Suzanne Wilson, General Counsel and Associate Register of Copyrights. khammond on DSKJM1Z7X2PROD with PROPOSALS [FR Doc. 2024–03063 Filed 2–14–24; 8:45 am] BILLING CODE 1410–30–P VerDate Sep<11>2014 16:54 Feb 14, 2024 Jkt 262001 DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families 45 CFR Part 1336 [Assistance Listing Numbers: 93.581, 93.587, 93.612] Notice for Public Comment on Administration for Native Americans’ Program Policies and Procedures Administration for Native Americans, Administration for Children and Families, Department of Health and Human Services. ACTION: Request for public comment. AGENCY: Pursuant to section 814 of the Native American Programs Act of 1974 (NAPA), as amended, the Administration for Native Americans (ANA) is required to provide members of the public an opportunity to comment on proposed changes in interpretive rules and general statements of policy and to give notice of the proposed changes no less than 30 days before such changes become effective. In accordance with notice requirements of NAPA, ANA herein describes proposed interpretive rules and general statements of policy that relate to ANA’s Notices of Funding Opportunities (NOFOs) in fiscal year (FY) 2024. Changes to FY NOFOs will be based on the previously published programs: Environmental Regulatory Enhancement (ERE), HHS–2021–ACF– ANA–NR–1907; Native American Language Preservation and Maintenance-Esther Martinez Immersion (EMI), HHS–2021–ACF– ANA–NB–1958; Native American Language Preservation and Maintenance (P&M), HHS–2021–ACF–ANA–NL– 1924; Social and Economic Development Strategies (SEDS), HHS– 2021–ACF–ANA–NA–1906; Social and Economic Development StrategiesAlaska (SEDS–AK), HHS–2021–ACF– ANA–NK–1902. DATES: Comments are due by March 18, 2024. If ANA does not receive any significant comments within the 30-day comment period, ANA will proceed with the proposed changes in the respective published NOFOs. The NOFOs will serve as the final notice of these proposed changes. ADDRESSES: Comments may be submitted to: Carmelia Strickland, Director of Program Operations, Administration for Native Americans, 330 C Street, SW, Washington, DC 20201 or via email to: ANAComments@ acf.hhs.gov. SUMMARY: PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 FOR FURTHER INFORMATION CONTACT: Carmelia Strickland, Director, Division of Program Operations, Administration for Native Americans, 330 C Street SW, Washington, DC 20201; Telephone: (877) 922–9262; Email: ANAComments@acf.hhs.gov. SUPPLEMENTARY INFORMATION: Section 814 of NAPA, as amended (42 U.S.C. 2992b–1), incorporates provisions of the Administrative Procedure Act that require ANA to provide notice of its proposed interpretive rules and statements of policy and to seek public comment on such proposals. This notice serves to fulfill the statutory notice and public comment requirement. ANA voluntarily includes rules of practice and procedures in this notice to be transparent. The proposed interpretive rules, statements of policy, and rules of ANA practice and procedure reflected in clarifications, modifications, and new text will appear in the five FY 2024 NOFOs: SEDS—HHS–2024–ACF–ANA– NK–0050; SEDS–AK—HHS–2024–ACF– ANA–NA–0051; ERE—HHS–2024– ACF–ANA–NR–0061; P&M—HHS– 2024–ACF–ANA–NL–0059; EMI—HHS– 2024–ACF–ANA–NB–0054. A. Interpretive rules, statements of policy, procedures, and practice. The proposals in this section reflect ANA’s proposed changes in rules, policy, or procedure that will take effect in the FY 2024 NOFOs. 1. Fully-Funding Awards ANA regulations state that awards will ‘‘generally . . . be made available for a one-year budget period and subsequent non-competing continuation awards with the same project period will also be for one year’’. 45 CFR 1336.32 (emphasis added). In accordance with the regulation, ANA awards are currently awarded in 12month increments and recipients with multi-year awards must submit a noncompetitive continuation application to receive funding for the next budget period. In addition, if a recipient is unable to complete all activities within a budget period, they must request approval of a carryover budget amendment to use the funds from a previous budget period. In FY 2024, ANA will fully fund all competitive awards for the programs SEDS, ERE, P&M, and SEDS for Alaska for up to 36 months. This will promote selfgovernance and self-determination of tribes, Alaska Natives, and other Native American organizations; reduce the administrative burden of recipients by not requiring annual non-competing continuation applications for multi-year projects; and reduce the need for post- E:\FR\FM\15FEP1.SGM 15FEP1

Agencies

[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 [www.gpo.gov]
[FR Doc No: 2024-03063]


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LIBRARY OF CONGRESS

Copyright Office

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 regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office website 
at https://copyright.gov/rulemaking/gr2d. 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 [email protected], 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 
⁵
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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), https://www.copyright.gov/eco/updates/eco-updates.pdf.
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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.
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    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.
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    \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.
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    \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).
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    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\
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    \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.
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    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\
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    \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).
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    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.
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    \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.
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    \56\ 81 FR 86643, 86650.
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    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.
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    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\
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    \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).
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    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.
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    \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.
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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\
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    \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.
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    \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), 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.
    \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.
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    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.
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    \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).
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    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\
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    \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).
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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\
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    \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.
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    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, https://copyright.gov/recordation/pilot/.
    \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.
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    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).
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    \72\ See 37 CFR 202.4(c)(5).
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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

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