Group Registration of Works on an Album of Music
| Published date | 20 May 2019 |
| Citation | 84 FR 22762 |
| Record Number | 2019-10166 |
| Section | Proposed rules |
| Court | Library Of Congress,U.s. Copyright Office |
Federal Register, Volume 84 Issue 97 (Monday, May 20, 2019)
[Federal Register Volume 84, Number 97 (Monday, May 20, 2019)]
[Proposed Rules]
[Pages 22762-22768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10166]
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LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Parts 201 and 202
[Docket No. 2019-4]
Group Registration of Works on an Album of Music
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 musical works, sound recordings, and certain
other works contained on an album. The proposed rule will expand the
registration options currently available to register multiple musical
works or sound recordings under one application. In particular, this
proposed group registration option will permit the registration of
multiple musical works and/or sound recordings distributed together,
regardless of whether such distribution occurs via physical or digital
media.
DATES: Comments on the proposed rule must be made in writing and
received by the U.S. Copyright Office no later than 11:59 p.m. EDT on
July 19, 2019.
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 http://copyright.gov/rulemaking/gram. 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: Regan A. Smith, General Counsel and
Associate Register of Copyrights, by email at [email protected],
Robert Kasunic, Associate Register of Copyrights and Director of
Registration Policy and Practice, by email at [email protected], Erik
Bertin, Deputy Director, Registration Policy & Practice, by email at
[email protected], or John R. Riley, Attorney-Advisor, by email at
[email protected]. All can be reached by telephone at 202-707-8040.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Copyright Office (``Office'') is proposing to create a new
group registration option for musical works, sound recordings, and
associated literary, pictorial, and graphic works contained on an
album. When Congress enacted the Copyright Act, it authorized the
Register of Copyrights to specify by regulation the administrative
classes of works for the purpose of seeking a registration and the
nature of the deposit required for each such class. In addition,
Congress gave the Register the discretion to allow registration of
groups of related works with one application and one filing fee, a
procedure known as ``group registration.'' \1\ Pursuant to this
authority, the Register issued regulations permitting the Office to
issue group registrations for certain limited categories of works,
provided that certain conditions have been met.\2\
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\1\ See 17 U.S.C. 408(c)(1).
\2\ See generally 37 CFR 202.3(b)(5), 202.4; see also 83 FR
65612 (Dec. 21, 2018) (proposed group registration of short online
literary works).
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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 for certain types
of works may be so burdensome and expensive that authors and copyright
owners may forgo registration altogether, since copyright registration
is not a prerequisite to copyright protection, although registration
must be made before instituting a civil infringement action.\4\ For
musical works, not appearing in the Office's records can have
additional repercussions, as ``the copyright owner must be identified
in the registration or other public records of the Copyright Office''
to be entitled to certain statutory royalties for the reproduction and
distribution of non-digital phonorecords under the section 115
license.\5\ Further, if copyright owners do not submit their works for
registration, the public record will lack information concerning those
works, diminishing the value of the Office's records.
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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\ See 17 U.S.C. 411(a); Fourth Estate Pub. Benefit Corp. v.
Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019).
\5\ 17 U.S.C. 115(c)(1)(A).
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When multiple works are included in one submission, however, it can
be more difficult to adequately capture information about each work,
particularly within the technological constraints of the current
electronic registration system. The Office must also consider the
potential effect any group registration option may have on its overall
administration of the copyright registration system, to avoid an
adverse effect on the timeframe for examining other types of works.\6\
Therefore, group registration options require careful balancing of the
copyright owners' desire for more liberal registration options, the
need for an accurate public record, and the need for an efficient
method of facilitating the examination of each work.
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\6\ See 84 FR 3693, 3694 (Feb. 13, 2019) (establishing limit on
number of works in the group of unpublished works in light of
projected examination costs); 83 FR 2542, 2544 (Jan. 18, 2018)
(establishing limit on number of photographs that may be included in
a group in light of the projected costs of examining claims for that
group).
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[[Page 22763]]
II. Existing Registration Options for Musical Works and/or Sound
Recordings on an Album
A sound recording and the musical work embodied in the sound
recording are considered separate works. Under the Copyright Office's
existing regulations and registration practices, a single musical work
and the recording of that work may be registered with one application
and one filing fee if the composition and recording are embodied in the
same phonorecord and if the same party has been named as the claimant
for both works.\7\ In addition, copyright owners have three main
options for registering multiple musical works and sound recordings
with one application and one filing fee: (1) Registering multiple
unpublished works as a group of related works; (2) registering a
collective work together with the individual contributions included
within that work; or (3) registering multiple published works as a unit
of publication.\8\ These options are summarized below.
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\7\ See 37 CFR 202.3(b)(1)(iv). For purposes of registration, a
``claimant'' may be the author of the musical work and the sound
recording or a person or organization that owns all of the exclusive
rights in those works. Id. at 202.3(a)(3).
\8\ See U.S. Copyright Office, Circular 34: Multiple Works (Mar.
2019), https://www.copyright.gov/circs/circ34.pdf.
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A. Unpublished Works
Multiple sound recordings, musical works, or other creative works
may be registered with one application and fee under the group
registration option for unpublished works if (1) all of the works are
unpublished; (2) the works are registered in the same administrative
class; (3) all of the works are by the same author or the same joint
authors; (4) the author or joint authors are named as the copyright
claimant; and (5) the authorship statement for each work and each
claimant is exactly the same.\9\ Up to ten sound recordings and ten
musical works, i.e., twenty total works, may be registered under this
option if each musical work and sound recording is fixed in the same
phonorecord and if the copyright claimant for both works is the same
person or organization.\10\ This may be beneficial to authors and
copyright owners as a group registration covers each copyrightable work
in the group, though this option is only available if registration is
made before the works have been published.
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\9\ 37 CFR 202.4(c).
\10\ Id. at 202.3(b)(1)(iv), 202.4(c)(2).
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B. Collective Works and Contributions to Collective Works
Applicants may presently register multiple musical works and/or
sound recordings with one application and filing fee, if they are part
of a ``collective work'' and if certain requirements have been met. A
collective work is a type of compilation where there is a ``work, such
as a periodical issue, anthology, or encyclopedia, in which a number of
contributions, constituting separate and independent works in
themselves, are assembled into a collective whole.'' \11\ The
authorship in a collective work comes from the original selection,
coordination, and arrangement of the independent works.\12\ But not all
groupings of works qualify for registration as a collective work. For
example, while some courts have held that albums consisting of selected
sound recordings of musical works are ``compilations,'' \13\ an album
would not be considered a collective work if it does not contain a
sufficient number of contributions or a sufficient amount of creative
selection, coordination, or arrangement.\14\
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\11\ 17 U.S.C. 101 (definition of collective work); see also id.
(``The term `compilation' includes collective works.'').
\12\ See U.S. Copyright Office, Compendium of U.S. Copyright
Office Practices, Third Edition sec. 312.2 (3d ed. 2017) (citing
Feist Publ'ns., Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S. 340, 348
(1991)) (``Compendium (Third)'').
\13\ See, e.g., Bryant v. Media Rights Prods., 603 F.3d 135,
140-41 (2d Cir. 2010) (``An album falls within the Act's expansive
definition of compilation. An album is a collection of preexisting
materials--songs--that are selected and arranged by the author in a
way that results in an original work of authorship--the album.'');
Vargas v. Viacom Int'l, Inc., 2018 U.S. Dist. LEXIS 204474, at *15-
16 (S.D.N.Y. Nov. 30, 2018).
\14\ See, e.g., Compendium (Third) sec. 312.2 (noting that
``selection[s] consisting of less than four items will be
scrutinized for sufficient authorship'' and that selections ``that
[are] mechanical or routine,'' or are ``commonplace'' will not
trigger copyright protection).
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A collective work registration will extend to the individual works
on an album if the following requirements have been met. First, each
individual work must contain a sufficient amount of original
authorship. Second, the copyright in the collective work and the
individual component works must be owned by the same party.\15\ And
third, the individual works must not have been previously published or
registered and must not be in the public domain.\16\ But a collective
work is considered a single work for purposes of calculating statutory
damages, therefore, registering a collective work together with the
individual works contained in it may have important consequences in an
infringement action.\17\
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\15\ See Morris v. Bus. Concepts, Inc., 259 F.3d 65, 70-71 (2d
Cir. 2001), abrogated on other grounds by Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154, 160 (2010); King Records, Inc. v. Bennett,
438 F. Supp. 2d 812, 843 (M.D. Tenn. 2006) (``[T]he copyright of a
collection of sound recordings in the form of an album extends
copyright protection to both the album and the individual sound
recordings contained therein, regardless of whether the sound
recordings are individually listed on the certificate of
registration.'').
\16\ Compendium (Third) sec. 509.2; U.S. Copyright Office,
Circular 34: Multiple Works 2-3.
\17\ See 17 U.S.C. 504(c)(1) (A copyright owner may be entitled
to recover ``an award of statutory damages for all infringements
involved in the [infringement] action, with respect to any one
work,'' and ``[f]or the purposes of this subsection, all the parts
of a compilation . . . constitute one work.''); see also UMG
Recordings, Inc. v. MP3.com, Inc., 109 F. Supp. 2d 223, 224-25
(S.D.N.Y. 2000).
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In practice, most music albums are registered as collective works
by record companies that authored or own the collective work and the
sound recordings on the album. By contrast, musical works contained
within an album are generally authored and/or owned by a wider variety
of songwriters, composers, and music publishers. These works are not
typically covered by the collective work registration, because the
authors or owners of the musical works are often not the author or
owner of the collective work, that is, the album. In such cases, the
musical works must be registered separately from the album, and the
applicant generally must submit a separate application for each work.
The collective work option is therefore of limited value to
songwriters, composers, and music publishers.
B. Unit of Publication
Certain applicants may also register multiple musical works and
sound recordings as a single work, with one application and filing fee,
by using the ``unit of publication'' option.\18\ This is an
administrative procedure that allows an applicant to register a number
of works that were physically packaged or bundled together as a single
unit by the claimant and first published on the same date.\19\
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\18\ See 37 CFR 202.3(b)(4).
\19\ Compendium (Third) secs. 1103, 1107.2.
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A registration issued under this option covers each work in the
unit that is owned by the copyright claimant. A unit of publication is
different from a collective work because it does not require
compilation authorship, and the unit does not need to contain ``a
number of contributions, constituting separate and independent works in
themselves.'' \20\ This option may be used to register ``a package of
separately fixed component works that are physically bundled together
for distribution to the
[[Page 22764]]
public as a single, integrated unit,'' such as a ``CD packaged with
cover art and a leaflet containing lyrics'' or a ``box set of music
CDs.'' \21\ This registration accommodation has long-allowed one
application to not only extend to any collective work that is included
within the unit (e.g., a compilation of sound recordings), but also the
cover art, liner notes, and any other separately fixed work contained
in the unit and owned by the same claimant.
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\20\ 17 U.S.C. 101 (definition of collective work); Compendium
(Third) sec. 1103.
\21\ Compendium (Third) sec. 1107.1.
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Because the unit of publication option is restricted to works that
were first published in a physical unit, this option is not available
for works first published, or published solely, on a digital album
distributed over the internet, an increasingly common practice.\22\ The
Office has declined to extend the unit of publication option to digital
products, explaining that ``[t]he unit of publication option was always
intended to be a narrow accommodation to account for a particular
scenario: Where a physical product bundles together multiple types of
works of authorship as a single `unit,' and those separate works are
not published individually.'' \23\ It makes little sense to require
separate applications for each work of authorship in this situation,
because this could result in duplicative deposits.\24\ When considering
digital products, the calculus is different. There is less concern over
burdening applicants (or the Office) with duplicative deposits, but it
is typically more difficult for the Office to verify whether multiple
works have been packaged and distributed as a unit, or if they were
distributed as ``a single digital file or in multiple digital files, or
could readily be published only as a bundle, or both in a bundle and
individually.'' \25\
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\22\ See, e.g., Keith Caulfield, Chance the Rapper's `Coloring
Book' is First Streaming-Exclusive Album to Chart on Billboard 200,
Billboard (May 22, 2016), https://www.billboard.com/articles/columns/chart-beat/7378361/chance-the-rapper-coloring-book-first-streaming-exclusive; Jason Bullinger, Led Zeppelin Releases Three
Digital Only Albums (Sept. 28, 2018), http://www.altrevolt.com/led-zeppelin-releases-three-digital-only-albums/.
\23\ 82 FR 45625, 45627 (Sept. 29, 2017).
\24\ Id. (providing example of individual pieces of a board
game).
\25\ Id.
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In concluding that it would be inappropriate to make the unit of
publication option generically available to digital products, the
Office noted its intention to ``create a new group registration option
to accommodate [digital music albums],'' citing ``the inability to
register multiple musical works fixed and/or distributed on an album,''
including those released first (or only) in digital formats.\26\ This
proposed rule follows through on this statement by proposing a new
group registration option for multiple musical works, as well as sound
recordings and other works distributed in the same album, subject to
the eligibility criteria outlined below.
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\26\ Id. at 45628.
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III. The Proposed Rule
While the options described above remain useful to facilitate the
registration of many musical works and sound recordings, in practice,
the varying eligibility requirements can result in uneven registration
options (and associated fees) for musical work copyright owners versus
sound recording copyright owners (since the collective work option is
more typically available for the latter), and for physical versus
digital-only albums (since the unit of publication option may only be
used to register physical products).
To address these issues, the Office is proposing to create a group
registration option specifically for works by the same author(s) that
are contained on the same album. This option will be known as ``Group
Registration of Works on an Album of Music'' or ``GRAM.'' This
alternative is intended to expand registration options for the authors
and other owners of musical works, sound recordings, and associated
literary, pictorial, or graphic works in a manner that provides more
flexibility for the registration of multiple works on a particular
album. Each work in the group will be registered as a separate work,
and each work should be eligible for a separate award of statutory
damage awards in an infringement action.
A. Eligibility Requirements
As proposed, applicants that fail to satisfy the eligibility
requirements outlined below will not be permitted to use this option to
register works.
1. Definition of an ``Album''; Works That May Be Included in This
Option
The proposed rule limits the group registration option to musical
works, sound recordings, and any associated literary, pictorial, or
graphic works on an album of music, such as liner notes and cover
artwork.\27\ For the purposes of this registration option, the proposed
rule defines ``album'' as ``a single physical or electronic unit of
distribution containing at least two musical works and/or sound
recordings embodied in phonorecords, including any associated literary,
pictorial, or graphic works distributed with the unit.'' \28\
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\27\ The proposed rule would not apply to any motion pictures or
other audiovisual works that may be included on an album, because
the Office has concluded that including such works would
disproportionately increase the amount of time needed to examine
each application. Such motion pictures or audiovisual works would
have to be registered separate from the works registered through a
GRAM registration. The Office understands that many digital albums
increasingly contain audiovisual content and welcomes comments on
this provision.
\28\ The Office recognizes that in the music industry, the word
``album'' sometimes is used to refer to a larger collection of
tracks, in contrast to smaller bundles of tracks, such as EPs. For
this rule, there is no policy reason to treat smaller bundles
differently. See What is the Difference Between a Single, an EP and
an Album, TuneCore, https://support.tunecore.com/hc/en-us/articles/115006689928-What-is-the-difference-between-a-Single-an-EP-and-an-Album- (last visited May. 1, 2019) (noting that a single is one
track and an album has two or more tracks); What is the Difference
Between Single, EP and Albums?, CDBaby, https://support.cdbaby.com/hc/en-us/articles/360008275672-What-is-the-difference-between-Single-EP-and-Albums- (last visited May 1, 2019) (same); see also
Billboard 200, Wikipedia, https://en.wikipedia.org/wiki/Billboard_200 (last visited May 1, 2019) (noting Billboard 200 list
ranks LPs and EPs together as ``albums''). Conversely, the Office
may reassess this option in the future if ``albums'' stop being a
popular means for releasing multiple tracks together.
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This definition is intended to encompass groups of musical works
and/or sound recordings released to the public,\29\ and includes both
physical units of distribution such as CDs, cassettes, and vinyl
records as well as digital releases that are available for download as
an album (e.g., multiple digital tracks offered at a unified album
price). The proposed rule does not distinguish between an album that
can only be purchased in its entirety, such as a multi-track CD, and an
album uploaded to a digital music service that is offered to the public
both in its entirety and as individual songs that may also be
individually downloaded without purchasing the album as a whole. In all
cases, the musical works and/or sound recordings must be fixed and
distributed together in an audio form. Works embodied in a visually
perceptible form, such as books of sheet music, would not be eligible.
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\29\ If all the works on the album have not been previously
published, applicants should register the works as a group
registration of unpublished works.
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The proposed rule may be used to register up to twenty musical
works or twenty sound recordings contained in an album. It may also be
used to register up to twenty musical works and twenty sound
recordings, i.e., forty total works, if the works are fixed in the same
phonorecord, if the works are created by the same author or have at
least one common author, and if the claimant for each work in the group
is the same. The Office recognizes that some albums contain more than
twenty musical works and sound recordings, but
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believes this number will make this option available to the majority of
albums actually sold in the market.\30\ This option also benefits
copyright owners that are seeking to register two or three works that
likely would not meet the statutory requirements for a collective work.
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\30\ In cases where an album contains over twenty tracks, such
as a double album, an applicant may file multiple applications under
this option.
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Based upon the Office's experience registering music albums, most
claims will involve registration of a dozen or fewer works. As
discussed below, applicants will be required to submit their claims
through the existing online registration system. The Office does not
currently have the ability to charge differential prices to offset the
additional work involved in examining these claims. The Office will
closely monitor the number of musical works and sound recordings that
are submitted to determine if this option has an adverse effect on
processing times for other types of claims handled by the Performing
Arts Division. If the average number of works proves to be closer to
twenty, or if these claims increase overall processing times, the
Office may need to revisit the proposed limit, or its associated fee.
This proposed rule will also permit the registration of associated
literary, pictorial, and graphic works in the album, including cover
art, liner notes, and/or posters. As noted above, the physical
packaging requirement of the unit of publication accommodation has
limited the opportunity to register such ancillary works released
together in the digital environment. This proposed rule is intended to
address that limitation by allowing such works to be registered
together with the musical works and/or sound recordings, subject to the
additional eligibility requirements discussed below.
The proposed rule does not limit the number of literary, pictorial,
or graphic works that may be included in the claim, for two reasons. To
qualify for this option, the works must be created or co-created by the
author of the musical works and/or sound recordings. This typically
occurs when musical works, sound recordings, and other album content
are created by the same singer-songwriter, or when sound recordings and
related album material are created as a work made for hire. The Office
expects that the vast majority of GRAM claims will be limited to music
and/or sound recordings, and relatively few will include any associated
literary, pictorial, or graphic works. If these types of works are
included in the claim, the Office expects that they will take less time
to examine than the musical works or sound recordings. If these
assumptions prove to be incorrect, the Office may revisit this issue
and impose a numerical limit on the amount of associated material that
may be included in each claim.
Finally, the group registration option cannot be used to register
sound recordings that were fixed before February 14, 1972, because, as
a general rule, those works are not eligible for full federal copyright
protection.\31\ And unlike the registration for a collective work, this
group registration option will not cover the authorship involved in
selecting, coordinating, and arranging the works into the album as a
whole, consistent with the general scope of a group registration.\32\
To register the authorship involved in selecting and arranging the
works, the applicant would need to separately register the album as a
collective work or compilation.
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\31\ Title II of the Orrin G. Hatch-Bob Goodlatte Music
Modernization Act, the Classics Protection and Access Act, provides
for federal remedies for certain unauthorized uses of pre-1972 sound
recordings, while preserving the rule that ``no sound recording
fixed before February 15, 1972, shall be subject to copyright under
this title.'' Public Law 115-264, sec. 202, 132 Stat. 3676, 3728-38
(2018); 17 U.S.C. 301(c). Foreign sound recordings fixed before
February 14, 1972, however, may be eligible for copyright protection
in the United States, but these works must be registered on an
individual basis using Form GATT. See 17 U.S.C. 104(A); 37 CFR
202.12(c)(1), (d); 71 FR 15368, 15369 (Mar. 28, 2006); see also 84
FR 1661, 1670 (Feb. 5, 2019) (discussing interplay between 17 U.S.C.
104A and 303 following enactment of the Music Modernization Act).
\32\ See 37 CFR 202.4(n) (``For purposes of registration, the
group as a whole is not considered a compilation, a collective work,
or a derivative work . . . .''). A court may separately determine
whether multiple works infringed on any album were part of a
collective work. VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 749
(9th Cir. 2019) (``Though the registration label is not controlling,
it may be considered by the court when assessing whether a work is a
compilation. . . . Ultimately, what counts is the statutory
definition.''); Yellow Pages Photos, Inc. v. Ziplocal, LP, 795 F.3d
1255, 1277 (11th Cir. 2015) (``Although the manner of copyright
registration is not dispositive of the works issue, this Court has
previously considered it to be at least a relevant factor.'').
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2. Author and Claimant
Under the proposed rule, all of the works claimed in the group must
have a common author, although authorship for each work claimed need
not be identical. This requirement may be satisfied if the works were
created by the same author. In the case of a joint work, this
requirement may be satisfied if each work was co-created by the same
co-author, even if the other co-authors are different.\33\ In addition,
the copyright claimant(s) for each work must be the same person(s) or
organization.\34\ Specifically, the claimant may either be (1) the
author or co-author of all of the works, or (2) the party that owns all
of the exclusive rights that initially belonged to the author or co-
authors. If the author(s) and the copyright claimant(s) are different,
the applicant must provide an appropriate transfer statement that
indicates how the claimant obtained ownership of all of the exclusive
rights in the works, such as ``by written agreement.''
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\33\ For example, in cases where sound recordings are not
registered as works made for hire, if an album contains the same
featured artist across tracks, that artist could be listed as the
author of all tracks, even if different producers co-authored
various tracks. See Compendium (Third) 803.3. Similarly, if a
songwriter co-authored multiple musical works on an album, any such
works may be registered in the group, even if each work was co-
authored with different writing partners.
\34\ In this respect the proposed rule is similar to the rules
governing other group registration options. See, e.g., 37 CFR
202.4(c)(5) (unpublished works), (d)(1)(iv) (serials), (e)(3)
(newspapers), (f)(1)(iv) (newsletters), (g)(2) (contributions to
periodicals), (h)(4) (unpublished photographs), (i)(4) (published
photographs).
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For example, if multiple songs on an album were created by the same
songwriter, that individual could be named as the copyright claimant
(even if the copyright is owned by a music publisher). If a music
publisher owns all of the exclusive rights in the works claimed on the
application, that publisher could register the works in its own name by
identifying itself as the copyright claimant and providing an
appropriate transfer statement explaining how it obtained ownership of
the copyright. Similarly, a singer-songwriter that created the musical
works, sound recordings, and photographs on an album could register all
of those works by naming himself or herself as the copyright claimant.
Alternatively, a third party that owns all of the exclusive rights in
those works could register them in its own name by providing an
appropriate transfer statement indicating how it obtained ownership of
the rights that initially belonged to the singer-songwriter.
To be clear, a third party may only be named as a claimant or co-
claimant if that party owns the copyright in all of the works in the
group.\35\ If a party owns one or more--but less than all--of the
exclusive rights in the works, that party cannot be a copyright
claimant. Likewise, if the works were created by two or more co-
authors, the claimant or co-claimants must own or co-own all of the
rights that initially belonged to the
[[Page 22766]]
co-authors.\36\ If a party owns or co-owns the rights that initially
belonged to some, but not all, of the co-authors, that party cannot be
named as a copyright claimant.
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\35\ Id. at 202.3(a)(3); Compendium (Third) sec. 404 (``A person
or entity who owns one or more--but less than all--of the exclusive
rights in a work is not eligible to be a claimant.'').
\36\ Shared ownership of all the musical works on an album is
not an eligibility requirement, because each song will be registered
as an individual work.
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In all cases, the application may be submitted by an author, a
party that owns all of the exclusive rights in the works, a party that
owns one or more (but less than all) of the exclusive rights in the
works, or an authorized agent of the foregoing parties.
The authorship and ownership of musical works and sound recordings
can be complex. The Office recognizes that the proposed framework does
not capture every division of rights that potentially exists within the
music industry. This is due to the limitations of the current
electronic registration system, and the limited nature of the Office's
examination. As discussed in more detail below, the Office does not
plan to create a new application form for this group registration
option. Instead, these claims will be submitted using the Standard
Application. This application was designed to register one work that
was created or co-created by the same author or co-authors, assuming
that the work is owned or co-owned by the same claimant or co-
claimant(s).
The fields within the Standard Application are limited and cannot
be changed. They are not capable of capturing nuanced ownership
information, which limits the Office's ability to evaluate claims
involving transfers of ownership involving multiple works and multiple
parties. The Office will consider these issues when it begins to
develop the requirements for its next-generation registration system
and welcomes input from authors, publishers, recording companies, and
other interested parties concerning the features and capabilities that
should be considered.
3. Title Information
The applicant will be required to provide a title for the album, a
title for each musical work and/or sound recording, titles for any
associated literary, pictorial, or graphic works that are included in
the group, and a title that identifies the group as a whole. The album
title should be provided in the field marked ``Title of Larger Work.''
The title of the musical works, sound recordings, and any associated
literary, pictorial, or graphic works should be provided in the field
marked ``Contents Titles.'' When registering sound recordings together
with the musical works embodied in those works, the same title may be
provided for both works. When registering literary, pictorial, or
graphic works, applicants may provide the file name that has been
assigned to each work or a descriptive identification, such as ``cover
art,'' ``liner notes,'' ``photo of recording artist,'' ``photo of
guitar,'' etc.
The title of the group as a whole will be used to identify the
registration in the online public record. This title should be provided
in the field marked ``Title of Work Being Registered'' and should begin
with the term ``GRAM,'' which will be used to identify the claim and
assign it to an appropriate member of the Performing Arts Division. The
group title may include any additional words that reasonably identify
the group as a whole, such as the author's name(s), the album title,
the type of works, or the number of works in the group, as in ``GRAM
songs by Antwan Patton & Andr[eacute] Benjamin,'' ``GRAM five songs
from The Dungeon Album,'' ``GRAM songs, sound recordings, and cover
artwork from the album Scorpricorn.''
4. Publication Information
The application must specify the date and nation of publication for
the album, and all the works in the group must be first published on
the album and on the same date. If the album includes works that were
previously published (either on an individual basis or on a different
album), or previously registered with the Office, those works should be
excluded from the claim.\37\ In this respect, the proposed rule is
similar to the rules governing the registration of a collective work or
a unit of publication.\38\
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\37\ See Compendium (Third) secs. 621.4, 621.5.
\38\ See id. secs. 509.1, 1107.1.
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B. Application Requirements
In keeping with the Office's recent rules encouraging online
registration,\39\ the proposed rule requires applicants to
electronically submit the application.\40\ The Office recently amended
its regulations to require other group registrations to be filed
electronically, and the rationales provided in those rulemakings apply
equally here.\41\ As is the case with these other recent registration
rules, the proposed rule would allow the Office to waive this online
filing requirement in exceptional cases.\42\
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\39\ See 84 FR at 3698 (group registration of unpublished
works); 83 FR 4144, 4146 (Jan. 30, 2019) (group registration of
newspapers); see also 83 FR 66182, 66184 (Dec. 26, 2018)
(architectural works notice of proposed rulemaking); 83 FR at 65616
(short online literary works notice of proposed rulemaking).
\40\ 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. 37
CFR 202.6(e)(1).
\41\ See, e.g., id. at 202.4(g)(6) (contributions to
periodicals), 202.4(e)(5) (group newspapers), 202.4(f)(2) (group
newsletters).
\42\ See, e.g., id. at 202.4(g)(9), (h)(11), (i)(11),
202.6(e)(8).
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Ordinarily, when the Office creates a new group registration
option, it develops a corresponding application form to collect the
information needed for that type of claim.\43\ But the Office is
beginning to work on the technical requirements for its next-generation
registration system, and it does not intend to conduct any further
development on the current system. In the interim, claims submitted
under this new group registration option will need to be adapted to fit
within the registration system as it currently exists.
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\43\ See id. at 202.4(c)(8), (d)(2), (e)(5), (f)(2), (g)(6),
(h)(8), (i)(8).
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Under the proposed rule, applicants will be required to submit
their claims through the electronic system and they will be required to
use the Standard Application. If the claim includes one or more sound
recordings the applicant should select the Standard Application
designated for a ``Sound Recording.'' If the group includes musical
works but does not include any sound recordings, the applicant should
select the Standard Application designated for a ``Work of the
Performing Arts.'' Further instructions on how to complete the
application will be provided by the Office through traditional avenues,
including its website, circulars, or Chapter 1100 of the Compendium.
C. Filing Fee
Under the proposed rule, the filing fee for this option will be the
fee that currently applies to any claim submitted on the Standard
Application.\44\ The Office has issued a proposal to increase this fee
from $55 to $75.\45\ If that proposal is adopted, the new fee will
apply to any claim submitted on the Standard Application, including
claims involving works contained on an album. The Office does not have
the ability to charge differential prices when multiple works are
submitted on the Standard
[[Page 22767]]
Application. However, the Office will consider this issue as it begins
to develop the technical and legal requirements for its next-generation
registration system.\46\ In the interim, because the Office cannot
presently charge a higher fee for GRAM claims, should processing times
for this group option significantly outstrip the overall average
processing time for Standard Applications, the Office may consider an
adjustment to the number of works or complexity of claims permitted in
this group to minimize subsidization.
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\44\ Section 708(b) authorizes the Register to adjust the fees
that the Office charges for certain services, but before doing so it
must conduct a study of the costs incurred in providing each
service. 17 U.S.C. 708(b)(5). The Office intends to issue a
supplemental notice of proposed rulemaking regarding its fee
schedule that will give the public an opportunity to comment on the
proposed fee for this group registration option, as well as fees
that will be proposed in other unrelated rulemakings.
\45\ 83 FR 25054, 24057 (May 24, 2018).
\46\ See 83 FR 52336, 52339 (Oct. 17, 2018).
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D. Deposit Requirements
The deposit requirements for this group registration option will be
the same as the requirements that normally apply to claims involving
musical works, sound recordings, and associated album material.
Briefly stated, if the claim includes any sound recordings, the
applicant should submit a complete phonorecord of the best edition of
those sound recordings,\47\ along with any printed or other visually
perceptible material distributed with the recordings (regardless of
whether the applicant intends to register that material).\48\ If the
album was published in a physical form (such as a CD or vinyl record)
or in both physical and digital form, the applicant should submit two
physical phonorecords, along with two physical copies of any related
album material.\49\ If the album was published solely in digital form,
the applicant may upload a digital phonorecord along with a digital
copy of any related album material.\50\
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\47\ See 37 CFR 202.20(c)(1)(iii) (noting best edition
requirement). Guidelines for identifying the ``best edition'' of a
sound recording are provided in section V of the ``Best Edition
Statement,'' which appears in Appendix B to Part 202 of the Office's
regulations and in Circular 7B: Best Edition of Published
Copyrighted Works for the Collections of the Library of Congress. 37
CFR pt. 202, app. B; U.S. Copyright Office, Circular 7B: Best
Edition of Published Copyrighted Works for the Collections of the
Library of Congress (Sept. 2017), https://www.copyright.gov/circs/circ07b.pdf.
\48\ See 37 CFR 202.19(b)(2), 202.20(b)(2)(v).
\49\ Id. at 202.19(b)(2)(i), 202.20(b)(2)(v).
\50\ Id. at 202.20(b)(2)(iii)(B). Alternatively, applicants may
save the digital sound recordings and related album material onto a
physical disc or other storage medium and submit the works in that
form. Id. at 202.3(b)(2)(i)(D).
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If the claim does not include any sound recordings, the applicant
should submit a complete phonorecord of each musical work being
registered.\51\ If the claim includes any associated literary,
pictorial, or graphic works, the applicant should submit a complete
copy of those works. Musical works published solely on phonorecords are
not subject to the best edition requirement.\52\ Therefore, authors and
owners of these works may submit digital phonorecords and digital
copies to the electronic registration system (regardless of whether the
album was published in a physical or digital form). Alternatively, the
applicant may submit a physical phonorecord containing each musical
work, along with a physical copy of any literary, pictorial, or graphic
works that are included in the claim.
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\51\ Id. at 202.20(c)(1)(iii), (c)(2)(i)(H).
\52\ Id. at 202.19(c)(4) (exempting ``musical works published
only as embodied in phonorecords'' from the 17 U.S.C. 407(a) deposit
requirement).
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When submitting a digital deposit, each work must be contained in a
separate electronic file. The files must be assembled in an orderly
form, each must be submitted in one of the acceptable file formats
listed on the Office's website,\53\ and they must be uploaded to the
electronic registration system as individual electronic files (not .zip
files). A submission would be considered ``orderly'' if the file name
for each musical work and/or sound recording can reasonably be matched
with the corresponding title entered on the application so that the
examiner can verify that the correct works were uploaded. In addition,
the applicant would have to provide documentation confirming that the
musical works and/or sound recordings were included on the album.
Specific guidance for this requirement will be provided on the Office's
website, circulars, and the Compendium. By way of example, applicants
could upload a photo of the liner notes for the album or a screenshot
from an online music service where the album may be found.
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\53\ See U.S. Copyright Office, eCO Acceptable File Types,
https://www.copyright.gov/eco/help-file-types.html (last visited
Mar. 30, 2019).
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IV. Conclusion
The proposed rule is intended to facilitate broader participation
in the registration system by making it easier for the authors or
owners of musical works and/or sound recordings to register multiple
works at the same time. The Office invites public comment on these
proposed changes.
List of Subjects
37 CFR Part 201
Cable television, Copyright, Jukeboxes, Recordings, Satellites.
37 CFR Part 202
Claims, Copyright.
Proposed Regulations
For the reasons set forth in the preamble, the Copyright Office
proposes amending 37 CFR parts 201 and 202 as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2. Amend Sec. 201.3 by:
0
a. Redesignating paragraphs (c)(9) through (c)(25) as paragraphs
(c)(10) through (c)(26), respectively.
0
b. Adding a new subparagraph (c)(9).
The addition reads as follows:
Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Division.
* * * * *
(c) * * *
* * * * *
------------------------------------------------------------------------
------------------------------------------------------------------------
(9) Registration of a group of works on an album....... 55
------------------------------------------------------------------------
* * * * *
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
3. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
4. Amend Sec. 202.4 by:
0
a. Redesignating paragraphs (k) through (n) as paragraphs (o) through
(r), respectively.
0
b. Adding new paragraph (k).
0
c. Adding and reserving new paragraphs (l), (m), and (n).
0
d. Revising the newly designated paragraph (r) in the third sentence by
removing the words ``or (k)of'' and adding in its place the words
``(k), or (o) of''.
The addition reads as follows:
Sec. 202.4 Group registration.
* * * * *
(k) Group registration of works on an album. Pursuant to the
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights
has determined that a group of two or more musical works and/or two or
more sound recordings, and any associated literary, pictorial, or
graphic works, may be registered with one application, the required
deposit, and the filing fee required by Sec. 201.3 of this chapter, if
the following conditions are met:
(1) Eligible works.
(i) All of the works in the group must be contained on the same
album. For the purposes of this section, an ``album'' is ``a single
physical or electronic unit of distribution containing at least two
[[Page 22768]]
musical works and/or sound recordings embodied in a phonorecord,
including any associated literary, pictorial, or graphic works
distributed with the unit.''
(ii) The group may include up to twenty musical works and/or sound
recordings, together with any associated literary, pictorial, or
graphic works included with the same album. Where a musical work and a
sound recording are embodied in the same phonorecord, the group may
include up to twenty musical works and twenty sound recordings, and any
associated literary, pictorial, or graphic works included with the same
album.
(iii) The applicant must provide a title for the group as a whole
that begins with the term ``GRAM,'' a title for the album, and a title
for each musical work, sound recording, and associated literary,
pictorial, or graphic work claimed in the group.
(iv) All of the works in the group must be created by the same
author or the works must have a common joint author, and the copyright
claimant or co-claimants for each work must be the same person or
organization. The works may be registered as works made for hire if
they are identified in the application as such.
(v) All of the works must be first published on the same album and
on the same date, and the date and nation of publication must be
specified in the application.
(2) Application. If the group includes at least one sound
recording, the applicant must complete and submit the Standard
Application designated for a ``Sound Recording.'' If the group does not
include any sound recordings, the applicant must complete and submit
the Standard Application designated for a ``Work of the Performing
Arts. The application may be submitted by any of the parties listed in
Sec. 202.3(c)(1).
(3) Deposit.
(i) If the claim includes any sound recordings, the applicant must
submit two complete phonorecords containing the best edition of each
recording, and two complete copies of any associated literary,
pictorial, or graphic works that are included in the group. A
phonorecord will be considered complete if it satisfies the
requirements set forth in Sec. 202.19(b)(2). The deposit may be
submitted in a digital form if the album has been distributed solely in
a digital format, and if the requirements set forth in paragraph
(k)(3)(iii) of this section have been met.
(ii) If the claim does not include any sound recordings, the
applicant must submit one complete phonorecord of each musical work
that is included in the group. If the claim includes any associated
literary, pictorial, or graphic works, the applicant must submit one
complete copy of each work.
(iii) The deposit may be submitted in a digital form if the
following requirements have been met. Each work must be contained in a
separate electronic file. The files must be assembled in an orderly
form, they must be submitted in one of the electronic formats approved
by the Office, and they must be uploaded to the electronic registration
system as individual electronic files (not .zip files). The file size
for each uploaded file must not exceed 500 megabytes; the files may be
compressed to comply with this requirement. In addition, the applicant
must submit documentation in accordance with the instructions specified
on the Copyright Office's website confirming that the musical works
and/or sound recordings were included on the album.
(4) Special relief. In an exceptional case, the Copyright Office
may waive the online filing requirement set forth in paragraph (l)(2)
of this section or may grant special relief from the deposit
requirement under Sec. 202.20(d), 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.
Dated: May 13, 2019.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2019-10166 Filed 5-17-19; 8:45 am]
BILLING CODE 1410-30-P
