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Order in the Court—and in Copyright Registrations for Unpublished Collections

The U.S. Court of Appeals for the Seventh Circuit vacated and remanded a district court decision that a submission was ineligible for copyright registration because it was not in an “orderly form.”  Quincy Neri v. Melinda Monroe, Case No. 12-3204 (7th Cir. Aug. 12, 2013) (Easterbrook, J.)

Quincy Neri designed a glass sculpture that was installed by a third party in the entryway to an individual’s residence.  After renovation of the entryway, the installer included photographs of the sculpture on its website, in a newsletter and in an award application.  Neri brought a lawsuit against the installer, photographer and lighting designer, claiming that these parties violated her copyright in the sculpture.

Copyright exists once a work is in a fixed form, but bringing litigation to enforce these rights requires a copyright registration.  The Copyright Office permits the registration of a “collection” of unpublished works under one registration if the collection has the following elements: “(1) The elements are assembled in an orderly form; (2) The combined elements bear a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 used by different authors, at least one of the authors has contributed copyrightable authorship to each element.”

Neri applied for copyright registration for a collection of her unpublished works, which allegedly included a photograph of the sculpture at issue. Although the Copyright Office issued the registration for the collection, the magistrate judge found that Neri’s collection could not be registered because her submission was not in an “orderly form.”  According to the magistrate judge, based on his review of deposition testimony, Neri’s submission consisted of “a booklet containing photographs of several sculptures, plus some loose photographs.”  (The Seventh Circuit was unable to verify this statement because Neri’s submission to the Copyright Office was not in the record.)  The magistrate judge concluded that the application was defective because the submission was disorderly, and he dismissed the case based on a lack of copyright registration in the work at issue.  Neri appealed.

The Seventh Circuit criticized the magistrate judge’s decision because he “did not rely on any legal authority that establishes how much order is required.”  In its decision, the Seventh Circuit focused on the purpose of a copyright registration—“to permit users and courts to pin down the ‘information’ on which copyright enforcement depends”—and held that “a district court should not set aside an agency’s application of its own regulations without a strong reason.”

Practice Note: The Seventh Circuit offered the following helpful advice regarding registrations for unpublished collections: “[a]ny 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.”

© 2020 McDermott Will & Emery


About this Author

Jennifer M. Mikulina Trademark Attorney McDermott Law Firm

As head of the Firm's global Trademark Prosecution Practice, Jennifer M. Mikulina focuses her practice on trademark and copyright counseling, prosecution, licensing and enforcement. She counsels companies in a wide variety of industries, including consumer goods, food products, digital currency, health care services, insurance, hospitality/restaurant services and software/online services. Jennifer delivers a client-first approach to legal work and has been praised by clients and market-leading publications. According to one client quoted in World Trademark Review...