What every Photographer should know about Copyright law

Copyright symbolIn a recent post, I wrote about two cases where an artist appropriated the work of a photographer, changed it and presented and sold it as their own.  Both cases ended badly for the artist.  From the comments and emails I received on that post, and from my own experience as a photographer, I knew that I and the average photog do not understand copyright law or it’s importance.  So I wanted to learn and share with you information on copyright fundamentals for photographers.

I began researching and found many resources on the subject.  But there was one that really laid out the definitions and concepts most clearly.  This was found on the website Photolaw.net, which is owned by Mr. Andrew Epstein, Esq., a Boston-based attorney who specializes in copyright law for photographers, artists, writers, etc.

His site contains an article: “Common Questions & Answers About Copyrights”, which spells out just what I was looking for.  I called and spoke with Mr. Epstein, explained my goals, and he kindly allowed me to “quote at will, with full attribution” from his Q&A post.  He explained that he was granting me a license to use his material and a written agreement was not necessary.  I was learning already, and was actually relieved, since I’m not an attorney, and don’t want to appear to be giving out legal advice.  I also didn’t want to go to jail for “appropriating” Mr. Epstein’s copyrighted material, which would be rather ironic!

So with permission, I’ve excerpted questions and answers from Photolaw.net, for your benefit.  Please note that I’ve only included some key elements here, and I strongly recommend that you visit Mr. Epstein’s website for a full read.  I’m confident you’ll be surprised by some of what you’ll read…

law scales, justice

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.

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. 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 work-for-hire agreement.

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 attorney’s fees. A court can also order the destruction of all infringing copies.

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.

Ed’s note – the next two Q’s & A’s will surprise most people… (underlines added by me)

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.  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.

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 attorneys fees.

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.  Forms can be obtained from the Copyright Office forms hot line at (202) 707-9100.

Ed’s note – you can also visit the U.S Copyright Office’ website for more information, including how to register your work electronically via the eCO system.

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.

Ed’s note – for those of us who watermark, or have debated the value of a watermark, read on.  I realized here that I’ve been doing it wrong for years ! (Underline added by me.)

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.

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.

Ed’s note – if you are wondering whether you should register your photos with the U.S. Copyright office as previously recommended by Mr. Epstein, this might clarify the answer for you.  (Underline added by me).

Q. What are the damages for an infringement?

Gavel, law, justiceA. 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.

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.

~~~

So to sum up the key take-aways:

  • You create and own the copyright as soon as you press the shutter button and save the image to your camera’s memory card.
  • Registration with the U.S. Copyright Office allows you to collect damages in the event of an infringement.
  • Watermarks matter, but do it correctly.

In a future post, I will discuss Creative Commons licensing and your rights as a photographer.

I want to thank Mr. Andrew Epstein for sharing his vast knowledge on the subject of copyright for photographers.  I strongly recommend you visit his website, Photolaw.net, for more information, and should you find yourself in a situation where your work has been infringed, you’ll find full contact information.  I know I’ll be adding Drew’s info to my Contacts file, just in case.

If you’ve found this information valuable, please comment below or email me directly (espadon9@yahoo.com).

Thanks for visiting 2 Guys Photo.                                           – Posted by Ed

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About Ed Spadoni

www.2GuysPhoto.com "Thoughts and opinions, resources and experiences… for emerging photographers everywhere."
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6 Responses to What every Photographer should know about Copyright law

  1. Reading quickly this AM. I’d like to see an example of a picture copyright that would be the most protective vs. one that’s not. I guess the C symbol plus the year plus the ‘name’?

  2. Carrie Conte says:

    great information! I have a question, maybe I am reading it wrong. So if I put the copyright on the picture but don’t register the copyrighted works I can not collect damages if there was an infringement?

    • Ed Spadoni says:

      Hi Carrie, you don’t need to put the (C) watermark on the image, as it’s copyrighted when you create it, and Mr. Epstein didn’t say you cannot collect without registering. But I have read elsewhere that collecting is very difficult without registering, and hence is recommended. Hope that helps.

  3. sharkbayte says:

    Thanks Ed, that cleared it up for me.

  4. Howard Hull says:

    Thanks Ed, I appreciate you taking the time to research this.

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