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Alaska Stock, LLC v Houghton Mifflin Harcourt Publishing Company

Case No. 10-36010 (C.A. 9, Mar. 18, 2014)

We address whether copyright registration of a collective work registered the component works within it.

Facts



This case was dismissed for failure to state a claim, so we assume for purposes of analysis that the facts were as pleaded in the complaint.

Alaska Stock, a stock photography agency, registered large numbers of photographs at a time, listing only some of the authors and not listing titles for each photograph. It licensed Houghton Mifflin Harcourt Publishing Company to use pictures it had registered, for fees based on the number of publications. Houghton Mifflin and its printer, R.R. Donnelly & Sons, greatly exceeded the number of publications Houghton Mifflin had paid for, so Alaska Stock sued for injunctive relief, actual and statutory damages, attorneys’ fees, and costs.

Alaska Stock owned the copyrights to all the photographs at issue, pursuant to assignment by the individual photographers. It registered the copyrights by registering CD catalogs and databases of the stock photos, entitled “Alaska Stock CD catalog 4” and so forth, which contained images of each of the photographs. For “name of author” on its application, it listed only three of many, in the form “1) Jeff Schultz 2) Chris Arend 3) Johnny Johnson & 103 others.”

This form of registration was prescribed by the Register of Copyrights and was consistent with Copyright Office procedure for thirty years. The district court nevertheless dismissed the claims on the ground that the registrations were defective, because Alaska Stock had not provided the names of each of the photographers and the titles of each of the photographs in its registrations. The theory of the dismissal was that the registrations succeeded only in registering the catalogs themselves, not the individual photographs within them, on account of Alaska Stock’s failure to list authors and titles. The district court held that the statute unambiguously required titles and authors, so the administrative practice to the contrary and a statutory savings clause for immaterially inaccurate information could not save the claims.
 

 

Judge(s): Andrew J. Kleinfeld
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Property
 
Circuit Court Judge(s)
Consuelo Callahan
Andrew Kleinfeld
Diarmuid O’Scannlain

 
Trial Court Judge(s)
Russel Holland

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Autumn Boyd Harmon & Seidman LLC
Maurice Harmon Harmon & Seidman LLC
Christopher Seidman Harmon & Seidman LLC
Craig Wallace Harmon & Seidman LLC
Brent Cole Marston & Cole PC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Daniel Kent Birch Horton Bittner and Cherot
Russell Jackson Skadden Arps Slate Meagher & Flom LLP

 
Amicus Lawyer(s) Amicus Law Firm(s)
David Carson U.S. Department of Justice
Robert Kasunic U.S. Department of Justice
Scott McIntosh U.S. Department of Justice
Melissa Patterson U.S. Department of Justice
Tony West U.S. Department of Justice

 

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corp., 533 u.s. 218, 227–31 (2001); see also batjac prods. inc., 160 f.3d the issue is szabo v. errisson, 68 f.3d 940 (5th cir. 1995), abrogated on other id. § 409(5). images contained therein.53 northampton, pennsylvania; christopher seidman, autumn j. russell jackson (argued), skadden, arps, slate, meagher stock’s typical pre-2001 agreement with a photographer for registration and recordation of the united states complied with the statutory requirements and did not violate no. 10-36010 are licensed so inexpensively. stock agencies relieve the argument suggests that numerous images by “phillip then in 2011, the copyright office houghton mifflin argues that a regulation requiring a registering, as alaska stock did at the time it registered them. see morris, the components within the work. while arguably the statute on other grounds by reed elsevier, inc., 559 u.s. 154. a database.40 agency and a percentage of whatever the stock agency 27 licensing, often for a cash payment up front to the stock typing, because of electronic registrations, explains why the 3168624, at *3 (d. ariz. aug. 10, 2010). but see panoramic stock policy debates by “legislators and administrators” rather than requirement.” and if the “claimant is not the author, a brief the register granted certificates to alaska stock, which she claimant and a statement of how it came to be the owner. between 500 and 6,000 individual photographs each. each at *1–2 (d. utah oct. 4, 2011). collective work” even if the authors and titles of the resubmitted january 10, 2014 49 argument held on july 27, 2011. standing procedure regarding stock photo agency the owner to whom any particular right is transferred is collects. purchasers buypermission from the stock agencyto follow. in 1995, a trade association of stock agencies, picture 283 f.3d at 505. rights in the work, regardless of whether it is registered.5 application was filed. it is an administrative approval. the the catalogs at issue do not add much regarding names and washington, d.c., for amicus curiae united states of requires the names of all the authors and titles of all the 17 u.s.c. § 409(6), (9). alaska stock, a stock photography agency, registered alaska stock gave its name and address as the identified; . . . agency of a cd collection of images the copyright to which alaska stock v. houghton mifflin26 numbers of authors or titles,” which may affect file size and registrations, petitions to the agency, participation in rule alternative titles under which the work can be reversing the district court’s dismissal of a copyright involved in selecting and assembling the collection.”29 the regulations do make clear the registration status of the contrary and a statutory savings clause for immaterially thing. alaska stock complied with copyright office nationality or domicile of the author or authors; . . . work or works that it is based on or applications did not provide titles for each photograph. perform is at issue here: registering copyrights, to deter first, names. the statute requires that the application and here, the author of the the application for copyright registration shall be made review of the contemporaneously used registration forms used under the lack the basic identifying information that section 409 33 17 u.s.c. § 408(a). agency for the agency to handle copyright registration and id. § 409(2). applicants needed more space, it does not mandate, as the 14 13 the register of copyrights has authority to permit “a single accord with what the copyright office had said was required. we reverse. alaska stock v. houghton mifflin20 mackey v. lanier collection agency & serv., inc., 486 u.s. 825, 837 or works that it is based on or incorporates” for compilations registration was defective. “registration application submitted for a work created by a the statute required though unlike the “title” requirement it mentions “authors” in copyright to me upon request.” the post-2001 language was any clear requirement to list individual authors and titles of assignments from the photographers.”27 because he had not listed titles for each of the songs, he had agency council of america, inc., met with the register of 4047651, at *2–7 (n.d. ill. aug. 9, 2013); panoramic stock images, ltd. 2b norman j. singer & j.d. shambie singer, sutherland statutes and copyrightable works that the claimant owns but did not with the prices varying from less than a dollar to perhaps a see 17 u.s.c. § 701(e). pirating. that is what alaska stock did for the many submission withdrawn june 7, 2012 fortitles, thestatutorytext andadministrativepracticeare chevron u.s.a., inc. v. nat’l res. def. council, 467 u.s. 837, 864 domicile of the author or authors, and, if one or more of melville b. nimmer & david nimmer, 2 nimmer on copyright addressing technical and complex matters, and resolution of the authors is dead, the dates of their deaths; “title of the work” refers to the collective work itself. the thus, we conclude that alaska stock successfully registered continuation sheet to list titles within a collection shows that thecopyright office’sviewsexpressedinsuchmaterialsonly this alludes to the 55 registration of a collective work and the component works alaska stock v. houghton mifflin22 17 u.s.c. § 104. judges.55 prescribed by the register of copyrights and shall include should effect registration of the component works, even if the stock obtains from their images. alaska stock sold would have excused alaska stock’s “failure” to list the titles and authors author designated, applies to the authors subsection, even registration is photographs at issue where the names of each of the second, titles. the statute requires a “title” for the “nationality or domicile of the author or authors” must be listed. id. which are immaterial to this case. the “author or examiner would interpret such filings to mean that the claim but we do not agree with them. see 72 fed. reg. 36,883, 36,886 (july 6, 2007). statement of how the claimant obtained the ownership of the on a form prescribed by the register of copyrights and requires would make that goal unattainable.” this policy register now is experimenting with new provisions requiring “[t]his principle has been applied, as a wholesome one, for the applications at issue that it was valid in all respects. had v. john wiley & sons, inc., __f. supp. 2d__, 2013 wl 4551666, at *7–9 the government makes a pragmatic argument, that “[m]any federal agency in charge. some stock agencies (such as the database itself and therefore that the registration[s] do[ ] not 48 being registered would include the catalog and “extend also licensed houghton mifflin harcourt publishing company to identification of the author and title of the “work,” which was & flom llp, new york, new york; daniel c. kent, birch, include “the name and address of the copyright claimant,”14 works. requirement of listing all the names does not apply if the claimant owns at *2 (9th cir. jan. 9, 2014); see also batjac prods. inc. v. goodtimes 1980, the copyright office has permitted, as a matter of schultz 2) chris arend 3) johnny johnson & 103 others.” ** clerical function of recording applications. instead, the titles for each of the photographs, were not provided on the images they want. individual photographs in the catalog in one application if the and we are not performing a mere verbal, abstract task when grounds by reed elsevier, inc. v. muchnick, 559 u.s. 154 (2010). was that the registrations succeeded only in registering the application “shall include” “the name . . . of the author or registration for a group of related works.”13 publishing company; r.r. the individual images were registered. authors” and “the title of the work,” among other things.12 work registrations [are] sufficient to permit an infringement the copyright; image, and entitle them to 35% to 50% of revenues alaska longstanding procedure, alaska stock’s applications gave adequate under the copyright office procedures in effect at defendants-appellees. [number] others,” and naming the agency as owner of the to the specific argument that the statute requires the we agree. forms used for registration applications says that the previous or alternative titles under which the david carson, general counsel; robert kasunic, deputy pseudonymous work, the name and nationality or register of copyrights and shall include . . . traditional forms of collective works, such as newspapers and administrative practice, remains a serious issue. the photographers owned the copyrights and assigned houghton mifflin had paid for, so alaska stock sued for being registered as part of the claim need not be given on the melissa n. patterson (argued), attorneys, appellate staff, we first expand somewhat on the history that led to the statement of the additional material covered by the had assigned their ownership of their copyrights in their 106 photographers. incorporates, and a brief, general statement of licensee, but also the copyright owner of the components, large number of authors is considered acceptable ‘if it names with the registration applications show innumerable beautiful fourth circuit rejectedthis argument,holdingthat“collective a musician who filed a single registration for his collection of copyright office interpretation “[f]or more than thirty years, registrations sufficed under the statute. thus, the statute requires a title for “the work,” in extend to the individual elements in the database.”41 and the individual songs,54 covering all the photographs added to their databases within 2002) (denying rehearing and clarifying previous opinion). the panel nationality and domicile have to do with the provisions for opinion had previously relied on section 409 of the copyright act to hold summary** pc, anchorage, alaska, for plaintiff-appellant. if a certificate is refused, the applicant must 19 29 17 u.s.c. § 201(d). the trade association confirmed this with the copyright united states court of appeals constituent work is included in the registration of the § 7.16(b)(5)(c) (2013). photographers whose images are affected by this case. (2) in the case of a work other than an materially similar: “photographer grants to alaska stock, determines” that the requirement of the statute are met, she 24 a particularly important task the stock agencies may depends on getting noticed and on volume, since the pictures limited numbers of copies of the designated images. the copyright both to its collections and to the individual administrative. . . . a contemporaneous construction, by the do sung uhm v. humana, inc., 620 f.3d 1134, 1139 (9th cir. 2010). 4 register of copyrights to registration bystock photo agencies registration application must include a “title” for each of people, many of whose fortunes are small. the stock tedium of the copyright office typing all the names into its inaccurate information could not save the claims. szabo rejected the argument that 44 cir. 2005) (“although the issue is not before us on appeal, we note that the register’s reasonable interpretation of the statute. their officers upon whom was imposed the duty of executing those registrant owns the rights to the component works as well.”42 . . . .”34 work is sufficient to support an action for infringement of the underlying alaska stock v. houghton mifflin12 practice, copyright registrations of collective works to cover practice could not be reconciled with the statute, as to both & sons, greatly exceeded the number of publications the united states has filed an amicus brief in support of is based on or incorporates, and a brief, general regulations provide for an appellateprocess when registration decide this question, however, as we conclude that the copyright office’s where as here, the photographers have assigned their alaska stock v. houghton mifflin 3 a stock agencycould register both a catalog of images and the opinion 3 specify the authors and titles of the component works.” the authors and merely designating the number of authors, agency, and the stock agency registers the collection, both the owned the copyright to the component parts, as alaska stock the court instructed in modern times that id. at 597 (alteration marks original and internal quotation marks the supreme court said long ago in united states v. hill that collective work was alaska stock. the references to delegation to the agency, expertise of the agency in 41 names as required by the register of copyrights pursuant to component works in a collection registered as an automated properly registered the individual photographs of properties constituent works. this tension between at least a superficial (1988). making, and actions for violations of the administrative since the copyright office started registeringworks under the registered.30 chevron and its progeny generally articulate several see 17 u.s.c. § 410(a). of the individual photographs. photographs are each independently copyrighted, so the registrations in the form used, and then explain why the deference in this case, an even stronger reason does as well. 15 work. the copyright office takes the position that only the shall include— home video corp., 160 f.3d 1223, 1230–31 (9th cir. 1998) (the when a registration application is approved, the register . . . why.37 deferential chevron deference under mead. see united states v. mead persuade.”52 in this case, in the copyright act, it must have that meaning in section an unpublished ‘collection’ extends to each copyrightable we 56 general counsel, united states copyright office, images,ltd. v. mcgraw-hillcompanies,inc.,__f.supp.2d__,2013 wl ownership of their copyrights in their images to the stock that a magazine publisher had not registered an article contained in one of the copyright laws and procedures are complex, so photo to the extent that those interpretations have the power to databases and cd-rom at issue are each a “collective work” transmission speed.28 alaska stock provided titles for each work it registered, such pursuant to the register of copyright’s registers the claim and issues a certificate, as she did in this of a congressional enactment which renders superfluous agrees that registration of a collective work suffices to allow id. § 409(1). alaska stock v. houghton mifflin 25 solely for the purpose of registration, the copyright . . . .” 18 applicant to cure such defects as are alleged in this case.11 opinion by judge kleinfeld 1 the registration quoted above is its standard form, and was this case do name the author of “the work,” alaska stock. that that construction was erroneous, it ought not now to be and consuelo m. callahan, circuit judges. 30 rights have been transferred to the claimant, then the alaska stock v. houghton mifflin 23 government and those who deal with it, and put faith in the 17 to obtain statutory damages and attorneys’ fees.8 these individual images without permission. the defendants a three-month period when they have obtained copyright see szabo, 68 f.3d at 943–44. collection as a whole and the individual images are creators and titles of individual works as required by “the name and nationality or domicile of the author or read the briefs, reviewed the record, and listened to the tape of oral that the claimant owns, even if the application does not kay berry, inc. v. taylor gifts, inc., 421 f.3d 199, 204, 206 n.2 (3d photographer has fixed an image in a tangible medium of authority to prescribe a form and grant certificates extending of each work are not expressly listed in the copyright 19, 2013); bean v. houghton mifflin harcourt publ’g co., 2010 wl 21 titles. the district court held that the statute unambiguously id. § 410(b). alaska stock v. houghton mifflin 27 20 42 as the “purpose” of registration: to create a public record of the district court concluded that the copyright office whether the register could prescribe a form and grant alaska stock v. houghton mifflin 19 analysis 11 inhale, inc., 2014 wl 69000, at *2 (internal quotation marks omitted). single registrations of certain previously published works to each individual work in the collection even though the names though the certificate is not binding upon a court, it metro. reg’l info. sys., inc. v. am. home realty network, inc., houghton mifflin limited licenses to copy and distribute expression, he owns the copyright, even though he has not is prima facie evidence of the validity of the copyright.38 constituent works are not listed.46 copies are catalogs consisting of photographs.” a copyright stock agencies followed it. the copyright office has the third circuit also alaska stock v. houghton mifflin14 the copyright office approved alaska stock’s applications photographers by name, followed by the phrase “and x id. at 943. v. the panel held that the register of copyrights had been prepared by court staff for the convenience of the reader. 17 u.s.c. § 409. there is no inconsistency between the statutory language and alaska stock, urging that we reverse. the position of the interpretation should be honored. denying the fruits of contained within their listings by registering their listings as 46 catalog in the name of alaska stock solely for the purpose of infringement action, the panel held that copyright registration procedures. the united states says that this has been the version of the regulation provided for continuation sheets if author of the collective work, not the individual authors of 17 u.s.c. § 408(c)(1). a second circuit case holds that the registration of a individual titles, and without naming more than three of the alaska stock v. houghton mifflin 9 its magazines because the publisher did not include the author and title of identify each work and “its date of first publication.” this could be read otherwise, the register of copyrights’ reading individual titles are not listed in the registration.49 needs to register the copyright to sue for infringement.7 copyright in a component work where it did not own the facts three names and said how many other authors there were. photographer may transfer ownership of the copyright in the including gap filling pursuant to implicit or explicit id. refuses registration and provides written notice of the reasons work or works”—alaska stock identified the contents with question that alaska stock did not provide names of the information systems, inc. v. american home realty network, statutes, is entitled to great weight; and since it is not clear component parts if the party registering the collective work 17 u.s.c. § 409. in relevant part, that subsection provides: the copyright officeprocedure,allowingidentification of the 409. this argument arguably shows that the term “work” is this summary constitutes no part of the opinion of the court. it has copyright act, the panel held that where the photographers has an effective date of july 6, 2007, subsequent to all the contributions belong to the claimant even though the reliance by citizens on a longstanding administrative practice collective works. moreover, houghton mifflin’s for the ninth circuit another portion of that same law.”25 ambiguous, but does not tell us which sense of the word application, it listed only three of many, in the form “1) jeff new regulation does, identifying titles and authors of the 53 45 in that case made the same argument houghton mifflin the issue in this case arises because the phrase in the the stock agency owns, registers both the collection and the years. the government suggests that the elimination of this includes this language: “i grant alaska stock the right to alaska stock v. houghton mifflin 5 work registered the component works within it. a longstanding administrative interpretation upon which photographers temporarily transferred their copyrights to the morris v. bus. concepts, inc., 259 f.3d 65, 71–72 (2d cir. 2001), as “when one copyrights a collection, the copyright extends to the regulations in effect when alaska stock registered 9 17 u.s.c. § 409(2). office in writing, and advised its member stock agencies. ownership for registration purposes to alaska stock, which the copyright office also announced its position by promulgating photographers were not provided, and titles for each of the this subsection says that the name of the author or authors of on making images, and they relieve publishers of the burden recognize that houghton mifflin’s position has prevailed in self-contained parts.”). united states is that the copyright office “has long judge betty b. fletcher was a member of the panel but passed away pursuant to an assignment in the language alaska stock used, relating to stock agency registrations. subsequent to the this suit on the individual components,47 element in the collection and to the authorship, if any, provided that registration of a collective work also registers registration applications. agreeing with other circuits, and be provided, alaska stock could have submitted such to register large catalogs of images. the register agreed that statutorily authorized, it is possible that they qualify for the more protection of works of foreign origin in another section of the professional photographers make their living in various 47 them, on account of alaska stock’s failure to list authors and alaska stock v. houghton mifflin4 of a collective work registers the component works within it. photographers. it registered the copyrights by registering cd 40 (6) the title of the work, together with any the copyright act superfluous. section 408(c)(2)(b) requires “work” without requiring titles for each constituent of the work comes into existence.4 administrative practice the agency followed with alaska houghton mifflin argues that because the word “work” is 39 36 authors.”17 though an owner has property rights without registration, he catalogs and databases of the stock photos, entitled “alaska couple of hundred dollars. the photographer’s income see 17 u.s.c. § 102(a). such phrases as “cd catalog of stock photos” and with cds injunctive relief, actual and statutory damages, attorneys’ showing each image, even though it did not give each image (5) if the copyright claimant is not the author, a brief here, where the copyright at 1231 (“the register’s position is reasonable and consistent with our andrew j. kleinfeld, tony west, assistant attorney general; scott mcintosh and registered the collection, both the collection as a whole and case.36 w. boyd, and craig f. wallace, harmon & seidman llc, copyright alaska stock v. houghton mifflin 13 his “songs of1991”succeededin registeringindividual songs registration.”44 reversed and remanded. opinion names of each of the authors and titles of each of the catalog registration. alaska stock shall reassign such owner to the extent of the right transferred. it is undisputed the singular, which would be the collective work in this case. precisely because private parties have long relied upon it.56 administrations. the livelihoods of photographers and stock government’s brief says that internal guidance for the reasons for deferring to administrative interpretation, it contends that “[v]alidating registrations that intentionally the owner has various exclusive 35 for advertisements, sometimes “stock.” in “stock that, even as of 2011, “questions remain about the capacityof photographs. the office recited that for many years, “stock before he has a customer. he then contracts with a stock 17 u.s.c. § 412. statutory construction § 49:3 (7th ed. 2012). thus, the agency charged with responsibility for alaska stock v. houghton mifflin8 and given notice that titles and authors for all the images must the system to accommodate applications listing very large d.c. no. 17 u.s.c. § 101. association telling it how stock photo catalogs ought to be registration to individual stock photographs within a see morris v. business concepts, inc., 283 f.3d 502, 505 (2d cir. (1) the name and address of the copyright claimant; (9th cir. 1991)). for the district of alaska . . . 17 u.s.c. § 411(a). id. (n.d. ill. aug. 28, 2013); masterfile corp. v. gale, 2011 wl 4702862, ways, sometimes shooting pictures for weddings, sometimes one can own a copyright without registering. when a authors of each of the photographs registered. and registration by a stock photo inhale, inc. v. starbuzz tobacco, inc., __ f.3d __, 2014 wl 69000, see id. § 410(a)–(b). individual contributors are not named in the registration decisions of this court and others counsel that registration of a collective “and (number) others.”’” though the office had a photographer” entitled “mt. mckinley” would somehow the copyright to the constituent works as well as the collective work it is reading of the statutory text and the long standing legal and formal requirements for registration were met. alaska stock does own the copyrights to the certificates of copyright on each of the registrations at issue. shall be made on a form prescribed by the agency, a photographer would assume nothing untoward id. at 4074. 31 identical requirement, applies to constituent works as well as “what specific works of intellectual property are registered.” of each of the photographers and the titles of each of the argued and submitted july 27, 2011 covered.”20 trade association to work out the procedures they should beta testing of new procedures. a 2007 interim regulation a title. images of mountains, glaciers, polar bears, grizzlybears, bald be given notice of the reasons, which would enable the the register of copyrights does not perform a mere was reasonable and persuasive. registration by a songwriter private actors have relied aids in construction of a statute inc., addressed whether a real estate listing service had 10 co.,712 f. supp. 2d 84, 92–94 (s.d.n.y. 2010); muench photography, commercial end of their business, so that they can focus more work can be identified; . . . database.33 grants or refuses a registration certificate depending on that [number] others” suffices, as the letter from the office to the stock agencies worked out the registration procedure with the deferring to the copyright office’s interpretation of the 1909 act. we conclude that it is entitled to deference.”). we need not easily reconciled. the statute does not say that the registration of the collective work registers the components.48 ‘not be disturbed except for cogent reasons.’”58 that a collection of stock photos may be registered without alaska stock v. houghton mifflin2 appropriate circumstances.”51 should do to register images with the register of copyrights, records may explain why the register of copyrights was authors of the collective work itself, and the applications in alaska stock v. houghton mifflin 17 37 donnelley & sons company, identify the images more specifically than the images permissive, not mandatory, and may be made long after the not registered the constituent songs, the same argument what this case concerns is registration, not ownership. plaintiff-appellant, 3:09-cv-00061-hrh letter says that it is “just that—a preference but not a 43 individual authors and titles of the component works to be houghton mifflin makes here. szabo applies the rule that 17 u.s.c. § 410(a). reasonably construing a statute is unjust. agency for its method, alaska stock filed its applications in “work,” but only “an identification of any preexisting work of the copyrights for the purposes relevant to this case. 58 did indeed register them. components of the collective works. the second circuit statement of how the claimant obtained ownership of at least three of those authors followed by a statement such as “the names of the individual authors of separate contributions trade association said. circulars from the office saythe same procedure act might have afforded remedies.35 kleinfeld, senior circuit judge: 37 c.f.r § 202.3(b)(3) (2006), recodified at § 202.3(b)(4). the record reflects that the register of copyrights issued 17 u.s.c. § 409(2) and (6) limits the registration[s] to the 23 registrations at issue in this case.32 photographs were not provided, on the applications. the names of three authors followed by a statement “and 2 agencies have long been founded on their compliance with “the name and nationality or domicile of the author or the authors and not listing titles for each photograph. it the register does indeed require listing of all titles.31 counsel alaska stock v. houghton mifflin 11 7 under the copyright act. the several databases contained this certificate is not merely proof that an additionally, houghton mifflin points us to what it sees alaska stock v. houghton mifflin6 and singer of a cd of his songs registers both the collection 51 department of justice, civil division, washington, d.c.; after oral argument. judge o’scannlain was drawn to replace her. he has catalogs themselves, not the individual photographs within work, an identification of any preexisting required titles and authors, so the administrative practice to § 409(3). (9) in the case of a compilation or derivative work, an that the limited assignments by the photographers to alaska more information on material included within collective zenith radio corp. v. united states, 437 u.s. 443, 457–58 (1978). within the collection.43 collective work, allure magazine, did not register the “preference” for naming all the authors, the copyright office registration.9 (6) the title of the work, together with any previous or of copyrights and was consistent with copyright office alaska stock v. houghton mifflin 21 listed on the registration application for the registration to be determination.10 see muench photography, inc. v. houghton mifflin harcourt publ’g underlying contributions where the rights in those statutory requirements for registration are met, and either addressed “the beta test phase of the electronic, online * the additional material covered by the administering the copyright act has determined for each of we therefore do not reach the question of whether 17 u.s.c. § 411(b) register of copyrights and shall include . . . reliance upon a reasonable and longstanding administrative houghton mifflin argues that the statute unambiguously filed march 18, 2014 5 contributions have to be listed. copyright.”16 publications. houghton mifflin andits printer,r.r. donnelly statute,24 used to refer to an individual “copyrighted work” elsewhere effective. (1984). 38 position is persuasive under less stringent skidmore deference. authors and titles, so the registrations were inadequate. when he saw it reproduced in a school textbook. this form of registration was prescribed by the register statute expressly requires only “identification,” in the database or cd-rom contained the work of between 32 and the definitions section defines a “collective register for copyright my photographs which appear in this the plural: alaska stock, llc, id. at 598. 16 a 2011 interim rule explicates the administrative history 72 fed. reg. 36,883 (july 6, 2007). to the photographs themselves.” the letter says that a h. russel holland, senior district judge, presiding 76 fed. reg. 4072, 4073 (jan. 24, 2011). defendants-appellees. or derivative works.18 dead, the dates of their deaths[.]22 25 12 eagles, dog mushing, and other subjects evoking the north. use pictures it had registered, for fees based on the number of registration system.”26 issued interim regulations for a pilot program for registration could only do if after examination she determined that the the government makes a practical policy argument to the 6 alaska stock v. houghton mifflin 15 singular, not titles of preexisting works incorporated, and a satisfied to have the names of only three authors for so many the this case was dismissed for failure to state a claim, so we statute delegating authority to the register to prescribe the or title.45 authors,”15 and nationality or domicile of the author or copyright office’s “interpretations are entitled to judicial deference if “internal agency manuals [and] opinion letters, we defer to one “cd-rom collection” of photographs. alaska stock’s 28 alaska stock’s contracts with photographers require the alaska stock v. houghton mifflin18 for publication photographers of some of the burden of managing the registermakesadeterminationafterexaminationwhetherthe defective, because alaska stock had not provided the names photographers to pay alaska stock substantial amounts per order denying rehearing clarified the opinion to say expressly that the we find the copyright office’s interpretation persuasive. authors, and, if one or more of the authors is overturned.”57 certificates extending registration to the individual “the work” must be provided, the statute defines a “collective before: diarmuid f. o’scannlain,* alaska stock v. houghton mifflin10 separate contributions to collective works. “registration of though not in response work” in the singular, distinguishing it from “contributions” the establishment and enforcement of justice, in many cases form.” she attached a portion of the copyright office, interpreted the copyright act to permit an application to seek compendium ii: compendium of copyright office practices copyright claim being registered[.]19 52 36,886, 36,888 (july 6, 2007). registration prior to infringement or, if the work is published, 57 of automated databases and group registrations of see 37 c.f.r. § 202.3(b)(3). 8 the statute saying what must be in an application appears to large numbers of photographs at a time, listing only some of copyright owner may be transferred and owned separately.6 act, we defer to the copyright office’s interpretations in the applications at that time. business method, designed to lull licensors into a false registrations at issue in this case, the copyright office began “brief, general statement of the additional material being . . . action on behalf of component works, at least so long as the nimmer reasons that the registration of a collective work 17 u.s.c. § 409(9). assume for purposes of analysis that the facts were as pleaded the fourth circuit recently confronted the question we omitted). titles. they do not say one way or the other whether the at issue, pursuant to assignment by the individual while these considerations counsel in favor of author,” and listing them individually would be unduly did. the procedure applied for over three decades by the clarified on denial of reh’g, 283 f.3d 502 (2d cir. 2002), and abrogated (1984),corroboratingherdeclaration. thecompendium says contrary in its brief, that the expensive and error-prone 37 c.f.r. § 202.3(b)(4) (2006) recodified at § 202.3(b)(5). “[i]n light of . . . substantial reliance interests, the america. . . . collection where the names of each of the photographers, and clarified in an order denying rehearing in that case that if “all photography agencies have been able to obtain registrations one published and several unpublished district court nimmer on copyright agrees as well, explaining that if stock agency for the purposes of registration. agencies through their trade association worked out what they longstanding administrative construction of [a] statute should houghton mifflin greatly exceeded the license limits. the 34 when she determines that “the claim is invalid” she anonymous or pseudonymous work, the name office has announced its interpretation primarily through “when, after examination, the register of copyrights alaska stock owned the copyrights to all the photographs stock. the interim rule, setting out what forms to use, says stock were valid transfers, and that alaska stock is the owner argument is meritless, because the regulation it depends on see 17 u.s.c. § 106. (3) if the work is anonymous or pseudonymous, the individual images. shall be made on a form prescribed by the register makes a judgment after examining an application. (2) in the case of a work other than an anonymous or while the previous the copyright office provided a letter to the trade 17 u.s.c. § 101. requirement is redundant if section 409(8), imposing an having the written blessing of the federal administrative use particularpictures, usuallyfor a limited number of copies, 37 c.f.r. § 202.5. inc. v. pearson educ., inc., 2013 wl 6185200, at *10–13 (n.d. cal. nov. alaska stock v. houghton mifflin24 a longstanding administrative practice. and there is no reasonable.”) (quoting marascalco v. fantasy, inc., 953 f.2d 469, 473 makes here, namely, that the “failure to identify names of the article on its registration application. morris, 259 f.3d at 71–72. the copyrights was “acceptable when the accompanying deposit magazines, can contain hundreds – if not thousands – of themselves, which were on the cds. anchorage, alaska houghton mifflin harcourt application.” we address whether copyright registration of a collective 120 u.s. 169, 182–83 (1887) (internal quotation marks omitted). within three months of publication, is necessary for an owner “shall register the claim” and issue a certificate of the copyright owner of the collective work is not merely a if an aggrieved party objected to the register’s long 32 22 work. 722 f.3d 591 (4th cir. 2013). the same analysis, that the “work” is what needs an alaska stock and the government. metropolitan regional stock cd catalog 4” and so forth, which contained images of copyright forms. because the forms created by the copyright office are the issue of names arises from the provision requiring a competing real estate listing service used complaint alleges that this was a willful and fraudulent 54 whole or in part, and any of the exclusive rights of a the collective work, and extended registration to the dismissed the claims on the ground that the registrations were the application for copyright registration the constituent work, just an “identification” of any “preexisting action of its constituted authorities, judicial, executive, and using language suggested by the copyright office, alaska burdensome for applicants. of locating photographers and purchasing rights to use the 50 the requirement that the application must include the photography,” the photographer usually makes the images see melville b. nimmer & david nimmer, 2 nimmer on copyright therein.21 authors” that must be listed in this context are the author or to collective works. we should not “adopt an interpretation copyright act of 1976.” in addition to a deference argument, examiner, and other copyright office staff, to work out how decisions,50 images to the stock agency, and the stock agency had the copyright office declined alaska stock’s applications see 37 c.f.r. § 202.3(b)(9) (2006); see also 72 fed. reg. 36,883, interpretation of section 409 would render another portion of maintainedits procedureforthree decades,spanningmultiple registered it with the copyright office.3 § 7.16(b)(5)(c) (2013). confidence, because having placed a photograph with a stock (9) in the case of a compilation or derivative separate contributions, need be provided in the application. horton, bittner, and cherot, anchorage, alaska, for is denied.39 alaska stock v. houghton mifflin 7 “work” must be applied in the context of registering we review de novo.2 work” as being a type of “work,”23 and issued certificates of registration to the company. procedure for thirty years. the district court nevertheless independently copyrightable works within the component id. § 410(b). appeal from the united states district court registered. the letter says that listing only three individual in this court, not only between man and man, but between the alaska stock v. houghton mifflin16 photographs in its registrations. the theory of the dismissal copyright examiners has, consistent with this position, identification of any preexisting work or works that it be addressed to her: “the application shall be made on a form the time to register the individual images. the deposits filed theregisterofcopyrights grantedcertificatesbased onthese we construe the copyright act. we are affecting the fortunes the copyright office established a clear procedure and the copyright claim being registered[.] applications. addressingthis practice,the associate register we have held that “[w]hen interpreting the copyright each of the photographs. for “name of author” on its copyright to the component work and failed to list its author copyright office filed a declaration stating that “[s]ince copyright (the head of the copyright office), her chief face in this case and adopted the position advocated by maurice harmon (argued), harmon & seidman llc, as “alaska stock cd catalog 4,” and identified the contents thus there is no question that alaska stock provided 26 alaska stock lost in district court on the theory that its plaintiff in this case) are very small businesses reliant on a entitled to all the protection and remedies of a copyright with such phrases as “cd catalog of stock photos.” the fees, and costs. grand junction, colorado; brent r. cole, marston & cole the fifth circuit held similarly in szabo v. errison that the application for copyright registration in the complaint. id. § 410(c). alaska stock registered thirteen automated databases1 id. § 409(2). if the work is anonymous or pseudonymous, only


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