Wednesday, March 3, 2010

Unregistered Images In Class Actions Are OK Says Supreme Court

Images that have not been registered with the U.S. Copyright Office can be included in class action law suits that involve copyright. That’s what the U.S. Supreme Court indirectly ruled in a unanimous (8-0) vote.

Though the original case was about the rights of writers, this outcome is good for photographers and other image rights holders. It means that owners of photographs that haven’t been registered can still benefit from class actions, which are becoming the best option to get paid from large web sites and companies that monetize contributory infringements of millions or, in some instances, billions of infringing images.

The details are even more complicated. In 2001’s New York Times Co. v. Tasini, the court decided that using the author’s stories in online databases without written authorization was an infringement. Three years later, there was a mediated settlement for $18 million. But, some authors objected. The District Court overruled the objection. Those who objected appealed. But this time the court said it didn’t have jurisdiction because some of the creative works were never registered with the U.S. Copyright Office. Later, the Court of Appeals agreed. Ironically, both the owners and publishers were objecting to the court saying it didn’t have jurisdiction. On March 2, 2010, the U.S. Supreme Court settled the matter once and for all, saying the lower court did, in fact, have jurisdiction, even if the copyrighted content was never registered.

Wow. Complicated. And, the reason for the Supreme Court’s reversal is even further removed from images and copyright issues.

But at the end of the day, the lower court inadvertently forced this Supreme Court decision that was needed to definitively clarify that unregistered content can be included in class action law suits. The lower court did this by going against what both the rights holders and infringers had agreed to in their settlement.

Had the decision gone the other way, only a fraction of images could be included in future actions. And then, they would need to be assembled in a way that separates registered images from unregistered ones. That would have made class actions involving photographs much more difficult to execute with an acceptable outcome.

Randy Taylor
The Copyright Registry at

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