Stock Photo Agency Need Not List All Photographs in Its Compilation

by McDermott Will & Emery
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Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co.

Joining with the U.S. Court of Appeals for the Fourth Circuit, the U.S. Court of Appeals for the Ninth Circuit ruled that a stock photo agency is the valid owner of the copyright to a compilation of photographs and, notwithstanding that the copyright application for the collection failed to identify the name of photographer of each photo works in the compilation, to each photo in the compilation as well.  Alaska Stock, LLC v. Houghton Mifflin Harcourt Pub. Co., Case No. 10-36010 (9th Cir., Mar. 18, 2014) (Kleinfeld, J.).

Section 409 of the Copyright Act requires that an application for copyright registration include “the name and nationality or domicile of the author or authors” and “in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered.”

There has been a spate of disputes between photographers and stock photo agencies against textbook publishers in which publishers are alleged to have used images beyond the scope of the applicable license.  In this case the district court cited § 409 in dismissing a complaint filed by Alaska Stock against publisher Houghton Mifflin, concluding that compilation applications for copyright must list all authors.  Alaska Stock appealed.

In the appeal, the Copyright Office submitted an amicus brief, in which it took the position that § 409 did not require identification of the authors of all the individual works included in a compilation.  Rather the Copyright Office explained that for over 30 years it has interpreted § 409 as requiring only that the author of the collective work, not the individual authors of the separate works, be included in the application.

Several months ago, in another case where the Copyright Office filed a brief, the 4th Circuit affirmed a rejection of the argument that § 409 requires that all authors be listed in an application for a compilation of works, Metro. Reg’l Info. Sys. Inc. v. Am. Home Realty Network Inc., (IP Update, Vol. 16, No. 8), deferring to the Copyright Office’s views on the issue.

In the present appeal, the 9th Circuit, deferring to the position of the Copyright Office, reversed the district court, noting that “[t]he procedure applied for over three decades by the Register of Copyrights to registration by stock photo agencies complied with the statutory requirements and did not violate any clear requirement to list individual authors and titles of the components within the work.”  The 9th Circuit also concluded that the registration was valid not only for the compilation, but also for each photograph in the compilation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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