Looseleaf Booklet With Sheets of Photographs Showing Sculpture is Sufficient to Register Copyright
The Seventh Circuit Court of Appeals concluded that loose photographs of a sculpture, stuck in a book, were sufficient to be classified as a copyrightable “collection.” Neri v. Monroe, et al., Case No. 12-3204 (7th Cir. August 12, 2013) (available here). Plaintiff Quincy Neri designed a glass sculpture called “Mendota Reflection,” which was installed in the ceiling of Linda Hughes’s condominium by Architectural Building Arts (“ABA”). The ABA is owned by Defendant Melinda Monroe. Leslie Sager designed the lighting. Hughes gave Eric Ferguson permission to take photographs of the project. ABA and Monroe posted copies of the sculpture photos on its website and used the photos in its newsletter. Sager posted copies of the sculpture photos on her website and Ferguson posted the photos on his Flickr webpage. Neri sued, arguing that they violated her copyright in the sculpture. A magistrate judge dismissed the case, finding that Neri lacked a copyright registration and the sculpture. In the Copyright Office, Neri had submitted a collection of photographs of her unpublished works, including the sculpture, for registration. Neri received a copyright registration but the lower court concluded that the application was defective and therefore the copyright certificate was invalid. Neri appealed. The Seventh Circuit vacated the dismissal.
A collection of unpublished works is defined, under the Copyright Office regulations, when each copyrightable work is self-contained and a number of works are combined into a single unpublished “collection.” “For these purposes, a combination of such elements shall be considered a ‘collection’ if: (1) The elements are assembled in an orderly form; (2) The combined elements bear a single title identifying the collection as a whole; (3) The copyright claimant in all of the elements, and in the collection as a whole, is the same; and (4) All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element. Registration of an unpublished ‘collection’ extends to each copyrightable element in the collection and to the authorship, if any, involved in selecting and assembling the collection.” 37 C.F.R. §202.3(b)(4)(i)(B).
Neri clearly met three of the requirements: the collection had a single title; she claimed a copyright in each sculpture and in the collection as a whole; and she was the only author. However, the magistrate judge found that Neri’s submission was not in an “orderly form.” Neri’s submission was a book of photographs of several sculptures, and some loose photographs. The sculpture subject tot he lawsuit was among the loose photos. Thus, the magistrate judge concluded that the submission was not orderly and was not a collection of unpublished works entitled to copyright registration.
The Seventh Circuit tried to review Neri’s submission (the copyright deposit) but it was not in the record. Thus, the magistrate judge had come to his conclusion based on deposition testimony. Neri had described her submission the same way as the magistrate judge did, but also argued later that a photo of the sculpture was in the book. “The problem may be terminological; Neri may have used the title ‘Mendota Reflection’ for more than one sculpture. But it is hard to understand how a court could conclude that a given submission is not ‘in an orderly form’ when the submission cannot be examined.” Neri, Slip Op. P. 4.
Even though Neri’s deposit copyright deposit material submission was not in the record, she did have the copyright certificate. Thus, Defendants had to show why the court should disregard the registration. If the appeals court followed the magistrate judge’s line of reasoning, only a single bound book is an “orderly” way to present photographs of sculptures, and if the sculpture is in the book then the registration is valid. However, the Seventh Circuit did not see why only a single document could be considered orderly. The Copyright Register found Neri’s submission to be adequate and a district court should not find otherwise without a compelling reason. Further, the magistrate judge did not rely on any legal authority to show how much order was required in a collection submission.
“Since the ‘orderly form’ requirement implements a statute allowing the [Copyright] Register to require ‘other information’, the key question must be whether the submission is organized well enough to permit users and courts to pin down the ‘information’ on which copyright enforcement depends.” Neri, Slip Op. P. 5. Thus, as long as the loose photographs were labeled in some way so that each work was readily identifiable, then Neri’s submissions should be considered orderly.
“Any organization that enables a court to associate a work underlying the suit with a work covered by a registration ought to do the trick. If a booklet (or PDF file) with page numbers is orderly enough—as the magistrate judge thought—a sequence of loose but numbered or named photographs should be enough too.” Neri, Slip Op. P. 6. However, if Neri did not submit photos of the sculpture, then the copyright registration does not support this lawsuit.
Defendants also argued that Neri was not the author of the sculpture: Fritz Schomburg is a glass-blower (a gaffer) who made the glass elements of the sculpture, but Neri only made the molten glass available as Schomburg needed it. Defendants’ argument was that a change in form from drawings to glass creates intellectual property rights. This is the same argument as saying that a typesetter owns the copyright to a book because the author did not type it personally. Neri created the sculpture by designing it, choosing the glass, picking out the shapes and colors, etc. As a result, the Seventh Circuit vacated the dismissal of Neri’s suit and remanded it for further proceedings.