Copyright Notice and Information

 

“Copyright” describes the rights given to creators for their literary and artistic works.

But we often don’t consider copyright when we look at our family photos, or go to get them copied. Even though it is so easy to copy an image—with scanners, photo-quality printers, and copy stations—it is still illegal. 

Things to remember about copyright:

  • Copyright is a property right. 
  • Just because you buy a print does not mean you have purchased the copyright.
  • Professional photographers are the smallest of small copyright holders. 
  • Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation.
  • Photographers have the exclusive right to reproduce their photographs (right to control the making of copies). Copyright
  • Unless you have permission from the photographer, you can’t copy, distribute (no scanning and sending them to others), publicly display (no putting them online), or create derivative works from photographs. 
  • A photographer can easily create over 20,000 separate pieces of intellectual property annually.
  • Professional photographers are dependent on their ability to control the reproduction of the photographs they create. 
  • It affects their income and the livelihood of their families. 
  • Even small levels of infringement—copying a photo without permission—can have a devastating impact on a photographer’s ability to make a living.
  • Copyright infringements—reproducing photos without permission—can result in civil and criminal penalties.

 

 

 

 

Common Questions & Answers About Copyrights  
A Simple Guide for Photographers, Artists, Illustrators, Writers, Musicians and Other Creative Individuals 

© 2006 Andrew D. Epstein, Esq., Barker Epstein & Loscocco,10 Winthrop Square, Boston, MA  02110; (617) 482-4900www.Photolaw.net.

 Q. What is copyright? 

A. Copyright is a form of protection, authorized by the United States Constitution, that gives photographers, artists, authors, musicians, choreographers and architects the exclusive right to use and reproduce their works. Essentially, all original works can be copyrighted. This includes photographs, art works, sculpture, writings, music and computer software. Virtually all works created or first published after January 1, 1978 are protected by copyright. Many works created prior to 1978 are also protected. 

The Copyright Act is federal law, not state law. Consequently, the law is uniform throughout the United States. Also, since the United States has signed several international copyright agreements, copyright protection is effective essentially all over the world. 

Generally, owners of copyright have the exclusive right to use and copy their works. Copyright owners can also authorize others to use their works. The use or copying of any work without permission from the owner of the copyright is a violation of the United States Copyright Act. 

Q. What does copyright do for artists? 

A. Copyright gives the creator or author of a work the power to control the work. The owner of the copyright has the exclusive right to control if, when, how and how often his or her work can be used or copied. 

Copyright is not a single right, as the word may suggest, but is a bundle of rights. Any part of the bundle can be retained or sold, leased or given away, either individually or in groups. The ability to dispose of any portion of the bundle of rights is reserved exclusively to the owner of the copyright. 

For example, if a company is authorized to use a particular photograph in a brochure, the brochure is the only place that the photograph can be used. The use of the photograph in an advertisement without permission would be a violation of the exclusive rights of the copyright owner. Similarly, if a person is authorized to use an illustration for advertising purposes for only one year, the illustration cannot be used for more than one year without permission. 

Q. Who owns the copyright? 

A. Generally, the person who creates a work is the owner of the copyright. Thus, independent artists, photographers and writers own the copyrights to their works. The only exceptions to this rule occur when a work is created by an employee as part of his or her job duties or when a work is created under a written ìwork-for-hireî agreement. 

For example, free-lance photographers own the copyrights to the images that they allow to newspapers or magazines to publish. However, absent an agreement that provides otherwise, a newspaper or magazine will own the copyright to all works that their staff journalists and photographers create as part of their job responsibilities. The same is true for art directors working in advertising agencies. The only way that the copyright could belong to the creator in these situations is if there is an assignment of the copyright. Of course, any stories, photographs or artwork created by employees on their own time, would belong to the authors of the works. 

Sometimes it is difficult to differentiate between an independent contractor and an employee as that term is defined by the Copyright Act. Most employment situations imply a regular, salaried employment relationship between the parties. However, there is no precise standard for determining whether a person is an employee or an independent contractor under the Copyright Act. A person can be an independent contractor under state law while he or she is an employee under the Copyright Act. 

The copyrights to works created under written agreements as works for hire belong to the employer. The law requires that there is a written agreement between the parties. Unfortunately, work for hire agreements can be very simple documents that masquerade as invoices or receipts. Most independent artists, photographers and writers will not operate on a work for hire basis. They feel that to do so, would deprive them of their right to fully exploit their creative talents. Also, they feel they will be treated as employees without having job security or getting any employee benefits. 

Q. Can two or more people own the copyright to a single work? 

A. Yes. Copyrights can be owned jointly. If two or more people create a work with the intent that their individual contributions merge into the final product, they will be joint owners of the copyright. The determination of joint ownership is a question of the intent of the participants. Joint copyright ownership can sometimes create difficult situations because joint owners become equal partners of each other with respect to their joint works. 

Each joint owner can deal with a joint work as if he or she owns the property independently of the other. Unless otherwise agreed, the only responsibility one joint owner has to the other is to share any money that is earned from exploiting the joint work. Unless otherwise agreed, neither joint owner has a right to control to whom a work is licensed or for how much. Furthermore, one joint-owner can sell or assign his or her rights to a third-party without notice to the other joint-owner. 

For collaborators such as musicians and lyricists, joint copyright issues may be of little consequence because both participants usually intend to create a single unified work. However, if an art director creates a very detailed layout for an advertisement that is executed by a photographer, the art director may assume that a joint copyright was created. However, unless the parties intended otherwise, the photographer generally owns the copyright. 

Q. How do I get permission to use a copyrighted work? 

A. Permission to use a copyrighted work is called a "license." A license must be obtained from the owner of the copyright prior to using the work. The license can be oral or written. Obviously, the use of a clearly written licensing agreement will avoid confusion. The writing does not have to be detailed to be effective. A simple letter or invoice is usually sufficient. For example, 'one-time usage rights for photograph in brochure with press run of 5,000 copies and regional newspaper use for six months - $2,500." 

Q. What if a copyrighted work is used without permission? 

A. The unauthorized use of a copyrighted work is called an infringement. The Copyright Act provides stiff penalties for infringing copyrighted works. Under appropriate circumstances, penalties can include monetary damages, all profits earned by the infringer from the unauthorized use of the copyrighted work and attorneyís fees. A court can also order the destruction of all infringing copies.  

Q. What works are protected by copyright? 

A. Copyright protects original works of authorship that are fixed in tangible form. This includes photographs, literary works including non-fiction and fiction, letters, music as well as accompanying lyrics, sound recordings, pictorial, graphic and sculptural works, motion pictures, audiovisual works, computer software, and architectural works. Even such ordinary things such as simple letters, catalog descriptions and doodles are protected by copyright. The only essential condition that the law requires is that the work is original. 

For example, if a photographer were to make an exact copy of the Mona Lisa, the resulting image would not be protected by copyright because an exact copy does not constitute an original work. However, if the same photographer were to photograph several people standing in front of the Mona Lisa, that picture could be copyrighted because there is some element of originality in the image. The law does not require much originality, but there has to be some. Also, only those parts of a work that are original can be copyrighted. Therefore, the copyright would not extend to any part of the Mona Lisa that might appear in the photograph. 

No one can acquire rights to works that are not their own or that are no longer protected by copyright. However, if an artist interprets a public domain artwork such as the Mona Lisa by painting it in a style completely different from Leonardoís, the derivative work -- that is, the work derived from the original -- may have enough originality to be protected by copyright. 

Q. If I have an idea for a work such as a photograph, is my idea protected by copyright? 

A. No. Ideas cannot be copyrighted. The only thing that can be copyrighted is the expression of the idea. This is sometimes a tricky concept. Copyright protection can extend to a written description of an idea or to a sketch for a proposed photograph that might be drawn by an art director in an advertising agency. However, copyright protection does not extend to the idea itself. Only the tangible expression of the idea is protected, that is, the particular literary or pictorial expression of the idea conceived of by the author. 

For example, no one can claim the exclusive right to photograph the Statue of Liberty. This landmark has probably been photographed from every conceivable angle since it was constructed. However, if a photographer were to combine an image of the Statue of Liberty with a picture of recent immigrants, then the combined photograph, if it is original, would be a unique expression and thus be protected by copyright. 

Q. What about names, titles, short phrases and expressions. Can they be copyrighted? 

A. No. Names, titles, short phrases or expressions are not protected by copyright. Some brandnames, trade names, slogans and phrases may be protected under trademark laws or the laws of unfair competition, but not under copyright law. 

Q. How do I copyright my works? 

A. A copyright originates at the moment a work is created. For a written work, the copyright comes into existence as the words are typed, printed, or saved to a computer disk. For a photograph, the copyright is created at the moment the image is developed. If a photograph is taken with a modern digital camera, the copyright originates at the time the image is saved on a computer disk or on a hard drive. As long as the work exists in tangible form or can be understood or reproduced with the aid of a machine, it is copyrighted. 

Q. Do I have to file anything in Washington, D.C., in order to get a copyright? 

A. No. A copyright is secured automatically when a work is created. This concept is frequently misunderstood. Some people still believe that there are formalities required in order to create a copyright. This is not true. Under the latest version of the Copyright Act, neither publication nor registration with the Copyright Office of the Library of Congress is required in order to secure full copyright protection. When a work is created, it is automatically copyrighted. 

Q. What is registration? 

A. Although a copyright is created automatically when a work is created, there is a procedure for registering a copyright with the Library of Congress. Remember, registration is not required for copyright protection. 

There are three benefits to registering a copyright. First, registration creates a public record of a copyright. Second, registration of a copyright is required in order to file a lawsuit for copyright infringement. Third, if a copyright is registered before there is an infringement or within three months after the first publication of a work, the owner of the copyright can claim certain alternate damages plus attorneyís fees. These alternate damages are called statutory damages and they can be awarded in a sum of up to $100,000 for willful infringements. The registration process itself, does not alter the fact that the owner of a copyright is always entitled to his or her actual damages plus any profits earned by the infringner. However, the suggestion that statutory damages and attorneyís fees are available can act as a catalyst for the quick settlement of a copyright infringement claim.  

Q. How do I register a copyright? 

A. Registration is accomplished by filling out a simple form, paying a small fee and sending one or two copies of the work to the Copyright Office. The number of copies generally depends on the whether the work has been published before registration. Basically, only one copy or photocopy needs to be sent to the Copyright Office for unpublished works. For published works, two copies of the work need to be filed. Also, several related works can usually be registered at the same time with the payment of only one $20 fee.  

Forms can be obtained from the Copyright Office forms hot line at (202) 707-9100. Use Form VA for works of visual art and Form TX to register mainly textual material. Form SA is used for sound recordings. Request Circular 1 from the Copyright Office for general information about copyrights and Circular 40a for guidance as to how many copies of a work need to be filed. 

Q. Should I register the copyrights to all of my works in Washington? 

A. Not necessarily. It may be a good idea to register books, plays, musical recordings, portfolio photographs and illustrations and any other significant or important works. However, it may be cumbersome and expensive for a professional photographer who creates thousands of images each year to register all of his or her images. In this case, it may be sufficient to register only portfolio images, or images taken for clients with whom the photographer expects to have difficulties. Also, authors or musicians who produce relatively few works, may want to register all of their creations. It is also a good idea to register all writings and songs before sending works to prospective publishers or before public performance. This gives added protection in case of unauthorized usage. 

Q. Has the Copyright Act kept pace with the computer age and changing technology?

A. Yes. The Copyright Act was designed to be responsive to all technological advances. For example, an illustration or photograph must be licensed for use on the internet. Similarly, an illustration or photograph taken off the internet without permission is as much an infringement as if the same image were taken from a magazine and used without permission. The unauthorized reproduction of a copyrighted work even if taken off the internet is still an infringement. 

Q. What if I have an idea and I hire a photographer to execute my idea, pay for his or her expenses including models, film, processing, assistants and special equipment, does the copyright belong to me? 

A. No. Usually, the person who creates the work ñ in this case, the person who trips the shutter -- owns the copyright. Of course, the parties can make other arrangements such as assigning the copyright or agreeing in writing to create the photograph on a work-for-hire basis. Also, under some circumstances there could be joint ownership of the copyright. 

Q. If I buy a photograph or painting from a photographer or an artist for display purposes, can I use the image for any other purpose? 

A. No. Mere ownership of a photograph, a painting or any other copyrighted work does not convey any right to copy or to use the work other than for personal use. For instance, a painting can be hung in a home or office but, absent permission, it cannot be copied, reproduced or used for any other purposes. 

The law provides that the transfer of ownership of any material object that is protected by copyright, does not of itself, convey any rights to the copyright. For example, the purchaser of a copyrighted photograph, painting or poster, intended for display purposes, does not acquire any right to copy, reproduce or use the work other than for its intended purpose. Even if one were to purchase an original portrait that was specially commissioned, the purchaser would only be able to frame and display the work. Unless the parties otherwise agree, the artist owns the copyright and the work cannot be copied or reproduced. Thus, without permission, the subject of the portrait cannot even make a holiday card from the painting. Similarly, no one can photocopy an entire book without violating the copyright ownerís exclusive rights in the work. In fact, radio stations and jukebox operators have to purchase licenses to broadcast or play music even if they own the records they are using. 

Q. What is a copyright notation?  

A. A copyright notation consists of the word "copyright" or the international copyright symbol, which is the letter "C" within a circle, together with the year of first publication and the copyright owner's name. For example, a proper copyright notation for this work would be either of the following: c 2008 Andrew D. Epstein or "Copyright 2008 Andrew D. Epstein."

Q. Do I have to use a copyright notation on all copies of my work?

A. No. Since March 1, 1989, a copyright notation is no longer as absolute necessity of the Copyright Act. Nevertheless, it is still a good idea to do use a copyright notation as a reminder that the work is protected by law. Also, the copyright notation may act as a deterrent for would-be infringers. The regulations require that the notation be put in a reasonably conspicuous place. This could be on the surface of a phono record, the back of a photograph or the base of a sculpture. 

Q. If a work does not have the word "copyright" on it, can I assume that the work is in the public domain and can be used? 

A Probably not. The safest thing to do is to assume that all works are protected by copyright and that no work can be used or reproduced without permission. The reason for this is that since March 1, 1989, a copyright notation is not an absolute necessity for copyright protection.  

Prior to this time, it was generally necessary to include a copyright notation on all works in order to maintain the copyright. In fact, before 1978 it was generally necessary both to use a copyright notation with a work as well as to register the work with the Copyright Office. However, since 1978 registration is no longer required. 

Q. What is copyright infringement?

A. Copyright infringement is the unauthorized use of a copyrighted work. Even the simple act of photocopying a copyrighted image without permission can be an infringement. When there is an infringement, the owner of the copyright can sue for damages. All lawsuits for copyright infringement must be brought in federal court, not state court. 

Q. If I change a few things in a copyrighted work by adding or taking something away, am I guilty of copyright infringement? 

A. Yes. The right to make derivative copies is reserved exclusively to the copyright owner. While the idea for a work of art can be copied, the expression of the idea is fully protected. Sometimes, it is difficult to differentiate between an idea and an expression because the idea can sometimes get lost in the expression. 

For example, one court had to decide if a pin made in the shape of a bumblebee was protected by copyright. The court said that the bumblebee was taken from nature and there was only one way to express this idea. Consequently, when there is only one way to express an idea, copyright will not prevent the copying of the expression. Furthermore, even though the pin was decorated with colored jewels, the placement of the jewels had to follow the form of the insect. Therefore, the jeweled bumblebee pin was not a expression that would be protected by copyrighted. The court held that it was an idea that could only be express in one way. 

Q. If someone infringes my work, do I have to catch the infringer in the act? 

A. No. It is not necessary to have finite proof that an infringer copied a work in order to prove copyright infringement. Infringement can be established simply by proving that the alleged infringer had access to the copyrighted work and that the offending work is substantially similar to the original. 

The concept of substantial similarity is another tricky copyright concept. For example, making an illustration directly from a photograph without permission would be risking infringement. If the illustration were substantially similar to the photograph, there will be an infringement. The degree of similarity between an original work and a copy can cover a broad range from an exact copy to substantial similarity to some similarity to no similarity. The degree of similarity is a question for the court to decide. Common sense and good judgment must prevail. 

Q. What are the damages for an infringement? 

A. The owner of a copyright can always claim whatever damages he has actually sustained as a result of an infringement plus whatever profits were earned by the infringer from the unauthorized use of a work. In addition, if the copyright to a work which was infringed was registered with the Copyright Office either prior to the infringement or within 90 days after first publication, there are alternative damages that can be awarded. The owner of the copyright can elect to seek the greater of either his actual damages plus the profits earned by the infringer, or damages of up to $100,000 plus attorney's fees and court costs. The total damages that can be awarded by a court depends upon the degree of willfulness of the infringer. 

For example, if a company has an agreement with a photographer to use certain photographs for one year only, the photographs can only be used within the one-year term. The company cannot use existing printed matter that contains any of the photographerís images beyond the one-year term. Simply, the continued use of copyrighted materials beyond the licensing period constitutes copyright infringement. 

Q. Are there any times that I can use a copyrighted work without risking infringement? 

A. Yes. The concept of fair use permits the utilization of copyrighted materials for certain purposes. For example, a newspaper can publish copyrighted works for purposes of reporting news and a teacher can make multiple copies of certain works for classroom use without risking infringement. In order to determine if a use is fair or is an infringement, one must determine how much of the copyrighted work is used and the impact this use will have on the potential market for the copyrighted work. If large portions of a copyrighted work are used or if the use lessons the potential market for the work, there will be infringement. 

Parody is a form of fair use. In parody, an artist, for some comic effect or for social commentary, may closely imitates the work of another artist, as long as the new work ridicules or comments on the style or expression of the original. Thus, the rock group, Two Live Crewís song, "Ugly Woman," which was a rendition of Ray Orbisonís song, "Pretty Woman" was held to be a parody and not a copyright infringement. 

Q. I make collages. Are there any problems that I might encounter? 

A. Yes. If a collage artist incorporates any copyrighted material into the collage, there is a risk of infringement. In making a collage, it is fine to use your own work or work that is in the public domain. However, when collage artists take work from other artists, there is a risk of copyright infringement. As with fair use of copyrighted materials, one must inquire as to how much of the copyrighted work is used and the impact this use will have on the potential market for the copyrighted work. This is another instance where common sense and good judgment should rule.

 

 

 

 

Ahh..thanks to technology life is easier and more difficult for artists! 

Photographers are no exception.  

The words “copyright” are thrown around a lot on photography forums but what does it really mean for you? Stick out the legal mumbo jumbo with me and you’ll see suggestions on what you can do to protect your artistic works.    

Here’s just a general guideline of Photography Copyright Laws and resources for you to start becoming educated on this very real threat to the industry.

 

Legal Background of Copyright Laws

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.

Copyright is a property right. Under the Federal Copyright Act of 1976, photographs are protected by copyright from the moment of creation.

According to the U.S. Copyright Office, the owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.

 

FAQs

I paid my photographer, don’t I own the photograph?

Sometimes it is thought that anytime someone purchases a portrait session they own the photographs, however, this is not true.

 

When is copyright created? Do I have to register it?

Copyright is secured automatically when the work is cre­ated, and a work is “created” when it is fixed in a copy or phonorecord for the first time. In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copy­ right. However, registration is not a condition of copyright protection. U.S. Copyright Office

 

Do I have to give notice of copyright?

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial. Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposi­tion of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected. The use of the copyright notice is the responsibility of the  copyright owner and does not require advance permission from, or registration with, the Copyright Office.  U.S. Copyright Office

 

What are the benefits of registering copyright?

While you’re not required to register in order to have copyright ownership and protection, having it registered can provide you some advantages- a few are listed here for you:

  • Ability to file suit – If you want to file suit, a registration application must either have been granted or denied, even if the infringement of your works has occurred
  • Public Record – Registration puts your copyright ownership into public record and automatically negates any defense (although ignorance of law is not a true defense) for the infringer to claim they didn’t know that either it was copyrighted or who was the owner.  You do not have to have it in public record in order to affix a notice to all works.
  • Damages and Attorney’s Fees – Money talks right? If you have filed your registration for copyright within 3 months of publishing the work, or any time prior to the infringing action, copyright registration gives you the ability to recover statutory damages and fees for attorneys in the legal action.  When applicable, statutory damages for infringing uses of a work usually entitle you to a pre-determined amount of damages (ranging from $750 to $30,000 per work infringed). 17 U.S.C. § 504(c).

 

What if I want to give my copyright?

Any or all of the copyright owner’s exclusive rights or any  subdivision of those rights may be transferred, but the trans­fer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. U.S. Copyright Office

 

 

Examples of Copyright Infringement

– Claiming another’s work as your own

– Any manipulation (including editing) that is not done by permission

– Scanning a digital picture

– Downloading sneak peeks from the web

 

Preventive Methods

This is your business. Your livelihood. Your work.  Work to prevent. It’s a sad state that we shouldn’t have to, thus it is a reality of the business.

-Inform your clients –Just as with managing client expectations for a smooth transaction (i.e. client guide), copyright infringement can be prevented (or at least attempt to be prevented).  Sometimes client’s really just don’t know the law, which is where we come in.  It’s easy to be approach some, others it may be more difficult. Include terms within your contract that spell out copyright law.  This can be done in a manner that doesn’t scare away clients. Simply explain that you retain ownership, but if you provide a print release (check out the difference here)

–Put it in your contract – You know that form that no one reads anyways? Cover yourself. Consult an attorney and get this language put in.

–Caring for your art card – This is such a nice and tactful way to reiterate to clients. Think about including a card that gives tips on caring for their prints and/or digital files (i.e. suggesting back up ) with a subtle reminder of copyright laws.

–Mark your prints – I’m not meaning slap a huge watermark on them (although this may not be a bad idea for online photographs), but you can word to send a gentle reminder to clients by placing a stamp or sticker on the back of the print that you retain copyright.

–Website/Blog Footer – Copyright tag lines may not work to preserve but can serve as a reminder!

 

 

Tips to approaching someone who has violated copyright

Oh this is opening a can of worms but sometimes someone may simply violate and really have no idea. I tend to believe the best in everyone so I try to give a benefit of the doubt and talk to them directly.  A simply nice email reminding them of contract terms and copyright laws may be sufficient!  I strongly suggest that before jumping the gun to send a heated email to take some time to draft and think about what you’re going to say.  Copyright infringement should not be tolerated but professionalism is a must!

If that doesn’t work I suggest seeking legal help.  Some professional organizations, such as Professional Photographers of America and other trade organizations, provide legal assistance through their memberships.

Also, look at sending a Cease & Desist letter when one violates copyright.

 

So as you see – we are pretty well set up on the legal front for photography copyright laws – it is just a matter of education and enforcement now!

 

 

 

 

Photography and Copyright Law

© COPYRIGHT – Part 1

In part one of a multi part series on Photographer’s Copyright, I’ll be talking with Carolyn E. Wright of the Law Office of Carolyn E. Wright, LLC. She is a full-time attorney whose practice is aimed squarely at the needs of photographers.  Carolyn understands the special issues that confront both professional and amateur photographers alike, and was the perfect person to talk with about Photographers, Copyright, and the Law. While her legal credentials are among the best in the business, Carolyn thinks it is important to keep ties with the photographic community. That’s why she maintains an active wildlife photography business at www.vividwildlife.com, and enjoys teaching, writing and speaking about photography. She is a regular leader of photography workshops, and is a moderator and columnist for www.Naturescapes.net. When you turn to Carolyn for legal help, you are literally turning to the person who wrote the book on photography law. “Photographer’s Legal Guide”.

On the topic of copyright, it was an obvious choice for me to want to have Carolyn share some of her wisdom with my readers. Since many of the people who read my blog are in the photography business, avid amateur photographers, or fans of photography as an art form, it seemed like a good topic to cover. Copyright is often misunderstood, and I hope that the series of articles I’m writing will help clear things up for those of us who create photography, and for those that use it commercially, editorially, or otherwise.

In  part two of this series, I’ll be sharing some very valuable information from the ASMP, PACA, Copyright Alliance, and other photography and copyright related organizations.

An interview with Carolyn E. Wright of photoattorney.com

Photography and Copyright Law

Q: The term “Copyright” is often misunderstood. Especially when it comes to art and photography. The first and most obvious question would therefore be; What is Copyright?

In simple terms, copyright for photographers means owning property. With ownership, you get certain exclusive rights to that property. For photographic copyrights, the ownership rights include:

(1) to reproduce the photograph;

(2) to prepare derivative works based upon the photograph;

(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) to display the photograph publicly;

Found in the U.S. Copyright Act at 17 U.S.C. 106 (http://www.copyright.gov/title17/92chap1.html#106)

Q: What is the difference between copyright and creative commons?

Creative Commons is a type of licensing. Licensing means that you grant others some of the rights that you have to the photograph. For example, you may allow someone to reproduce your photo in the December issue of a magazine. You still own the copyright to the photograph, but you allow someone else to use a piece of it. Creative Commons provides different licensing packages without pay. The packages allow some flexibility with your licensing, such as whether you allow commercial use of your photo and whether you require certain attribution, such as your name or website, with the use.

Q: Does a creative commons license mean that I can use the photograph any way I want, for free?

If you offer licensing of your photo through Creative Commons, someone may use your photo for free but that person must follow the of the conditions of the license that you select. The Creative Commons license options include: “Attribution” (this license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); “Attribution-NonCommercial” (this license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms); and “Attribution-NonCommercial-NoDerivs” (this license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially).

Q: Who owns the copyright in a photograph once it is taken?

In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.

Q: If I don’t register my copyright, do I still own the copyright to my photos?

Yes. When a photo is not registered with the US Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or standard licensing fees plus profits derived from the infringement, if not too speculative. One source for standard license fees is a software program called Fotoquote.

Q: Should only Americans register their copyright with the Library of Congress in the United States?

No! All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin.

If your photos are first published in the United States or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.

 

Q: What is the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (DMCA), enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects photographers directly. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement.

Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision. If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. My article here: http://www.naturescapes.net/docs/index.php/articles/314 tells you how to request that your image be take down from a website.

The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:

No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

The statutory award for each violation of Section 1202 ranges from $2,500 to $25,000. The DMCA is another important tool in the photographer’s legal toolkit.

Q: If I am photographing a job for a client, does the client own the copyright or do I?

See above regarding the “work-made-for-hire” discussion.

Q: Do I need a model or property release to own the copyright in my photograph?

Copyrights and rights of privacy for people are different rights. When photographers take photos of people, they must be careful to not invade their privacy. This happens when someone enters a person’s private domain in a manner that would be considered offensive to the average person. As a photographer, the act of going on someone’s land without permission would be trespassing and also may violate the person’s right of privacy. You don’t have to take a photo or publish an image photo for the action to be unlawful. Some courts have found that a photographer has violated privacy rights even when photographing someone in public. Instances would include cases where the photographers harass their subjects, use hidden cameras, or wait for a woman’s skirt to be blown at a fun house. It also is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in public.

After the photo is taken, however, the photographer should be concerned with the person’s right of publicity. You violate a person’s right of publicity when, without permission, you use a photo of a person for your own benefit. The “editorial” use of a photo is not considered a use of the person’s image for your own benefit. “Commercial” use is different because the use benefits the photographer, so you need the person’s consent to use their image. If you get a model release signed by the subject, you are free to use the image commercially, i.e., for advertising.

If an image is used in a newsworthy item then that constitutes an editorial use. In such cases, a person’s rights are evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.

Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. Using a picture of a person in advertising or for trade without consent may violate the person’s right of publicity, especially when it injures the economic interests of the person due to commercial exploitation. If someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then the use is commercial. When the photo of a person is incorporated into a product such as a tee shirt, the use is commercial. At times, it is difficult to determine if a usage is considered commercial or editorial, so it is always safer to get the model release.

In general, if property is visible and can be photographed from a public place, you don’t need a property release to use an image that depicts the property and you may use the photo in any manner. Copyright law provides an exclusion for photographing buildings located on property, but not for statues or other items that may have separate copyrights. There also are restrictions on some governmental property. These include federal seals and insignia as well as military or nuclear installations due to security concerns. If the statue or copyrighted item has minimal presence in your image, your photo may fall under the exclusion due to fair use. Otherwise, you must get permission to take an image and to use it for any purpose.

Nevertheless, some companies have tried to prevent the use—both commercially and editorially—of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree on the 17 Mile Drive at Pebble Beach, CA, the Golden Gate Bridge, and the “Hollywood” sign. While these attempts have been unsuccessful, it can be expensive to litigate them

 

Q: Do I need to put the © notice on my photos?

You’ll often see a copyright “notice”—the familiar © or the word “copyright” with a date and name of the copyright owner—posted on creative works. A proper notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.” Some people use a “c” within parentheses like this: (c), but it has not been designated to be part of the official copyright notice. The second part notes the year when the work was first published. The third required part of a copyright notice is the name of the copyright owner. The final form looks like this: © 2011 Carolyn E. Wright. Including a copyright notice is no longer required for copyright protection, but it is a good idea to use it.

When you use the copyright notice it may stop someone from stealing your photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo. Also, it helps to post a copyright notice on your photos because the infringer then cannot say the use was innocent. Further, you may be eligible for DMCA damages if your copyright notice is removed to hide an infringement (see above). You may use the copyright notice without registering your work with the U.S. Copyright Office.

Q: What is “Fair Use”?

Fair use is the right to use copyrighted materials without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.

Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too.

Specifically, Section 107 of the Copyright Act states that:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 USC Section 107. http://www.copyright.gov/title17/92chap1.html#107

All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.

The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.

A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.

When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.

Q: What is public domain?

When a work is not protected by copyright law, it is considered as being in the “public domain” and any one may use the work without permission.

Q: What is a derivative work and who owns the copyright?

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other types of modifications. The work must be different enough from the original to be regarded as a new work—in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work.

The person who creates the derivative owns the copyright to revision, annotation, or other type of modification only. The original copyright is still owned by the original creator.

Q: Is copyright violation a crime?

The Copyright Act includes elements of crimes related to copyright. http://www.copyright.gov/title17/92appg.htmlThe government usually prosecutes only the most egregious cases, such as counterfeited goods.

Q: What happens when a copyrighted photo is used without permission?

You have several options when you find that your photo has been infringed.

Option #1 – Do Nothing

You always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.

Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where – see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.

Option #3 – Prepare a DMCA Take-Down Notice
Purusant to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don’t reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.</strong

Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.

Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

Q: How can I get permission to use copyrighted photography?

You may obtain a non-exclusive license from the copyright owner orally, but exclusive licenses must be in writing. It’s always best to put license agreements in writing, even if it’s only an email.

Q: When can bloggers use photos they find online for free?

A blogger may use photos found online for free only when the photo is in the public domain, the use is a fair use, or the copyright owner has granted the blogger a free license, such as through Creative Commons.

Q: How do I know if a photo is in the public domain?

The law is designed so that works of authorship eventually (or, in a few cases, immediately) are made available for all to benefit from and use freely. Works go into public domain for one of three reasons:

(1) the author failed to satisfy the required statutory formalities needed to perfect the copyright;

(2) it is a work of the U.S. government; or

(3) the term of copyright has expired.

Item (1) only covers work published prior to March 1, 1989. At that time, the copyright notice had to be affixed to the work immediately or it immediately lost copyright protection. (Copyright protection has been restored for some foreign works even if they were published without notice before 1989.) That law has been changed; work published after 1989 does not need a copyright notice to maintain its copyright protection. It is, however, a good idea to use a copyright notice when displayed or offered in any manner.

Item (2) refers to works created by government employees such as maps, charts, and surveys. They fall into the public domain from the date of creation. Item (3) addresses the length of time that a work is protected by copyright law. Since the length of time that copyright protection remains in force has been changed several times over the years, it can be difficult to determine when exactly a given work falls into the public domain without doing some serious research. For photographs created after 1988, you (or your heirs) own the copyright for 70 years after your death (unless you have transferred it in writing). After that time, the copyright falls into the public domain; anyone can use the photos in any manner that they choose. For a period of time before 1988, copyrights expired 50 years after the copyright owner’s death. Before then, the laws dealing with the length of copyright protection changed quite frequently. The chart found at http://www.unc.edu/~unclng/public-d.htm may be helpful in determining the applicable duration of copyrights for works established at various times.

Q: If you take a photo of a work of art that you did not create, who owns the copyright?

As the creator of art, the copyright owner has the exclusive rights in the art such as for reproduction. Courts have disagreed as to whether taking photos of copyrighted works is a violation. Regardless, the law prevents you from having copyright ownership of anything that is an infringement.

Q: If an illustration of one of my photographs is made and used commercially or editorially, is it an infringement of my copyright?

Yes, if it is deemed to be a derivative work and the illustrator has copied your copyrightable elements.

Q: Someone is using my photos without paying me or asking permission. What do I do now?

See the options identified above.

I hope you all found this interview to be helpful with your questions and concerns regarding copyright in photography.
For even more detailed information, please read PART 2 Photography Copyright Information
Thank you Carolyn!

Contact Carolyn about legal issues concerning copyright

Law Office of Carolyn E. Wright, LLC
Phone: 775.588.5147
Fax: 775.588.5961

Contact Details

OFFICES

West Coast (Main Office):
PO Box 430
Glenbrook, NV 89413

East Coast:
PO Box 250208
Atlanta, GA 30325

_____________________________________________

If you have any questions about Photography and Copyright Law please contact Carolyn or a local attorney specializing in copyright law. I can’t offer advice on any questions about copyright. I am a photographer and not a lawyer. Thanks for understanding.