The following article does not constitute legal advice. If you need legal help, please locate a law firm that specializes in copyright law. Also, this article is based off U.S. Copyright Law. Your mileage may vary if you are outside the U.S.
Every so often, the topic of copyright comes up in photography discussions. Although I generally do not find it that confusing, copyright can confuse from time to time. With this article, I hope to paint a simple picture of copyright.
HOW THIS ARTICLE WAS BORN
In the several years that I have written about photography related topics, copyright never was on my radar. Although my “Land Use Ethics for Photography” article received mostly positive comments, there w
WHAT IS COPYRIGHT?
Copyright is legal protection grounded in the U.S. Constitution that is given to authors or creators of “original works of authorship.” It is a form of intellectual property law which protects literary, musical, dramatic, and artistic works from the moment of creation, whether published or unpublished. A copyright owner has the exclusive right to decide how to reproduce, distribute, and publicly display their work.
Copyright does not protect facts, ideas, methods of operation, titles, logos, or systems, although it can protect their expression. Additionally, copyright does not cover patents, trademarks, or trade secrets.
So when a photographer activates the shutter of their camera, the image is automatically protected under U.S. Law. This protection is covered by the Copyright Act of 1976. Since the advent of digital technology and the Internet, the Digital Millenium Copyright Act was added to the Copyright Act in 1998.
With the DMCA, artists have different avenues to protect their work. Typically this involves filling out a form and sending it to the U.S. Copyright Office. I will cover details about this a little later.
COPYRIGHT IS A PROPERTY RIGHT
An important aspect to know about copyright is that it is a property right. Even though it is intangible, it is something that you can own just like any other property. So when you sell a photo, in addition to selling the image, you can sell the copyright for it as well. Copyright also allows you the right to create derivative works or license the use of the work. Finally, it is also something that can be inherited, like any other personal property.
THE REGISTRATION MISCONCEPTION
One of the more common misconceptions about copyright is that the work has to be registered with the Copyright Office. This idea is not accurate. As soon as the work is created, it is protected. The difference lays in potential damages collected.
Copyright infringement is when someone uses a work protected by copyright law without permission. Like with other personal property, copyrights can be stolen.
If a work is not registered, then you have to prove that the alleged infringement resulted in lost sales. This can be a more costly route to take when chasing an infringement. When the work is registered, then one can be awarded statutory damages even if there has been no financial harm. In this case, one can be awarded damages up to $150,000. Attorney fees can also be covered under this realm. In the case of a friend who has dealt with several infringements of registered work, the law office takes 50% of the final settlement.
“POOR MAN’S COPYRIGHT”
Some artists use the practice of sending a copy of their work to themselves, in an attempt to “register” the work. The idea is that they use the mail system as a “timestamp” for the creation date of their work. There is no provision in the copyright law for this technique, and it is not a substitute for actually registering work with the Copyright Office.
WHY YOU SHOULD REGISTER
Registering your work with the Copyright Office is not required for protection. As stated above, copyright starts from the moment of creation. But copyright registration carries substantial benefits. It allows you to enforce your copyright.
By registering a copyright, it creates a public record. Registration is required before bringing an infringement lawsuit. And if a work is registered within three months after selling or distributing the work to the public or before to an infringement of the work, the copyright owner will be eligible for Statutory Damages if they sue for infringement and wins.
Ultimately, as long as you register before infringement occurs, you will be covered. But since you never know when someone will infringe your work, it’s best to register within those first three months after first publication.
The good news is that even if a work is not registered, you have three months from the time of infringement to register. The bad news is that it is three months from the time the violation started, not from the time you were aware of it.
HOW TO REGISTER YOUR WORK
And it’s not that expensive, as one single photo can be registered for $35 and up 750 photographs at the same time for $55. If you have an image or a group of photos that you would like to register, then head over to the U.S. Copyright Office’s website. This link is the starting point that will get you where you need to go.
HAVE I REGISTERED MY WORK?
Like most photographers – I do not register any of my work. I have considered it just for that additional level of protection. I have had some instances with people infringing my work. Some of them have been very ugly. More about that later too.
WHEN YOUR WORK IS NOT YOUR’S
In most cases, our work is going to be our work no matter what. We pushed the shutter; we created it. It’s our baby. There are several scenarios where this will differ with ordinary thinking.
The first situation is contract work. There can be several different classifications of contract work, depending on the contract. One example is a media outlet that I do freelance work from time to time. Under the agreement that I have with the outlet, any image that I provide them falls under an exclusive license for seven years. From time to time, I will license an image under a non-exclusive umbrella.
If you do work for a third party, do your homework on this. I recently received a freelancer’s agreement that had absolutely no language regarding image licensing. I have asked for clarification and have yet to receive an answer.
PHOTOGRAPHY FOR YOUR EMPLOYER
Another example is where an entity employs a photographer in a non-photography position. The photographer may use their gear to create some images, be it a product, headshot, or some other type of photographs for the company. Many times this is done on company time.
Under those conditions, the company, not the photographer, typically holds the copyright. Doing this is an excellent way for a starting photographer to get experience – I have been in that boat. In most cases, no problems will arise from this type of arrangement.
I have had instances where arrangements like this have gone wrong. I highly suggest that if you do photography work with your gear for your employer on company time, and this type of work is outside the scope of your employment, have something down on paper that allows you to retain use of the images if you want.
“IT’S ON THE WEB” MISCONCEPTION
The most common misconception on the planet when it comes to our work is that “Well, it’s on the Internet, it’s free.” I bet some of those folks also tried the Nieman Marcus chocolate chip recipe. That is not how copyright works, though.
In this day and age, we artists use the power of the Internet to advertise and connect. That power can also work against us. Some people will grab our images and use them for all kinds of purposes.
MY PERSONAL EXPERIENCE
Several years ago, I shot a car race. Within a couple of days, I had all of my race photos uploaded to Facebook. One of the racers grabbed an image and used it for a profile picture. I did not care about that much, even though his crop destroyed the image.
One of the sponsors of that racer saw it and decided he would be a “hero” and grabbed the destroyed image also. He then posted the photo on his company’s Facebook page and then went down the trail of using my photograph to promote his product. He had not asked me to use the picture, he had not tagged me or my page, and his post racked up likes and comments in world-record fashion.
TRYING TO BE NICE
Since I had a connection with this guy due to working with another racer, I decided to be “nice.” I provided the guy with a decent, watermarked image and asked him to use it to replace the destroyed image. I also asked him to tag my page. He said he would, and I waited. And waited. I sent him another message asking him to take care of it, and he replied that he was busy.
After waiting around for a while, I messaged him again. I informed him that he was infringing on my copyright and that he needed to fix things ASAP. That is where things went south. He told me that I should not have put the image on the Internet if I did not want it stolen, and he would comply with my demand when he got around it. I then filed a DMCA takedown with Facebook, and the image was taken down by the end of the day.
HOW DID I DO?
Did I handle that right? Absolutely not! I should have had a protocol in place beforehand. After that particular incident, I did institute a protocol to deal with infringement.
Several months later, I found a website belonging to a law enforcement agency using one of my images for which they had not received permission. I implemented my new policy and sent them a takedown letter and invoice. I did not get paid, but I did get a phone call, and the image was taken down.
HOW OFTEN DO I DEAL WITH INFRINGEMENT?
I would guess that I average approximately 2-3 cases a year. I have not gone “attorney” at this point. The last several cases were no big deals. Just people “wrapping me around the axle” by using or altering my work without crediting me. Not a big deal. But if I were to perform my Cher impression and turn back in time, I would deal with that commercial infringement I discussed earlier by retaining a law firm and letting them do their thing.
BUT WHAT ABOUT FAIR USE?
Fair use promotes freedom of expression by permitting the unlicensed used of work in certain circumstances. The exclusive rights of a copyright holder are not unlimited. In its basic form, fair use allows the use of copyrighted material for news reporting, teaching, commentary, criticism, or parody.
Several considerations need to be taken into account with fair use, and it’s not always a clear cut case of simply claiming “fair use.” Courts examine several factors when weighing fair use claims. These considerations generally consist of the purpose and character of the use, the nature of the copyrighted work, the amount of the work used compared to the whole, and the effect on the market for the original work. Cases are decided on a case-by-case basis and are fact-specific to each case. There is no exact amount of use that decides when infringement occurs.
“WIERD AL” WAS A TRAILBLAZER
“Wierd Al” Yankovic came to the forefront of the music world back in the ’80s when he released parodies that were near copies of popular songs of the day. Even though musical parodies may require using an already known and copyrighted melody, they are recognized as having First Amendment associations. Weird Al’s work was safe legally according to copyright law.
Richard Prince and Instagram
The photography world has its own version of Weird Al – Richard Prince. Prince’s name has been at the forefront of copyright discussions. Years ago, Prince was known for creating art by taking a picture of a picture and modifying them. He was sued for copyright infringement, but it was deemed that he made sufficiently substantial changes to create new works. Recently, he took images from Instagram created by others and used them as his work without changing the photos at all.
FAIR USE IN THE REAL WORLD
Richard Prince has long been recognized for fair use, but a more visible type of fair use is editorial.
It’s actually fair use that spurred me to write this particular article. I recently wrote an editorial piece, “Land Use Ethics for Photography.”
What happened was a verbal battle about public land use occurred in a Facebook group devoted to local photographers, and I wrote about that in my article. In the course of the article, I included a Facebook screenshot which included a photo by the unnamed photographer. A second photographer accused me of violating the copyright of the unnamed photographer that owns the image I used for discussion in the article.
I can safely say that before I wrapped that piece up and sent it up to the chain here at MilkyWayPhotographers, I was comfortable in a legal sense. Even though I could have left the offending photographer’s name public and still have been safe, I blurred that information out. I could assure our readers that we would not have gone live if we were treading on dangerous ground. The image used was as an example in the context of a public land use discussion. By the way, that second photographer did not appear to have an idea what the word slander means either.
WHAT ABOUT ANOTHER PHOTOGRAPHER USING THE SAME PERSON AND POSE?
Sometimes, a photographer will copy another photographer by recreating an image. An example would be from one of my earliest senior photography sessions.
During the session, I had my senior client pose, and I created the image. Sometime later, for whatever reason, the client had another photo session with another local photographer. I came across the galley, and I saw an image that was just about a direct copy of one of my shots. The only difference that stood to me was that my version was black and white. I do not know if the client requested that shot or what. As far as I have been able to determine, that was not a case of infringing on my copyright.
Last year during a meet up in New Mexico, a couple of us captured an image of that church. To the untrained eye, our photos could very well cause issues down the road. They are that similar since we were standing next to each other. From time to time, this will happen to all of us.
Just this past year while photographing the King of the Hammers off-road race, a bunch of us were at the finish line waiting to capture a shot of the winner getting the checkered flag. There was probably 10-15 of us cramped together. Not long afterward, I saw an image that I swore that was mine. I opened up my library to check, and it was almost an exact copy of my photo, except for the position of the checkered flag. If I were to guess, there might have been half a second difference between the two images.
“HEY LOOK, A PHOTO CONTEST”
Today, we are flooded by ads for photo contests, call for artists, etc. There is a term that floats around the photography communities that describes most of these contests and call for artists. That term is “rights grab.”
The term “rights grab” is the term we use when one of these contests pops up, asking artists to submit their work. There are contests for calendars, magazines, travel and tourism agencies and any other number of groups have found that holding contests is a good and cheap way to stock up on images.
For the most part in a lot of these contests, the owner of the image does retain copyright, yet by submitting an image to a contest like that, they have just allowed a company to use their image for any use imaginable. I have seen perhaps just one or two contests where submission to it meant the loss of copyright to the owner.
Before you enter a contest, make sure you read the rules and make sure you know what the company’s position is.
Some of us are professionals; some of us are amateurs. We might see the need to protect our work. In this day and age, I am very militant about protecting my work. I do allow sharing of my work without editing on social media.
If I catch an image that has been edited, whether it be cropped; text added, watermark removed, then I will automatically fill out a DMCA takedown. Back to 2014, when my race image was stolen, it was removed within just a couple hours after filing the notice with Facebook. The last DMCA notice I filed with Facebook back in February took a couple of days.
Ultimately, I cannot really advise you on what you should and should not do. But if you plan on protecting your work, I do suggest having a plan in place to deal with it. Have a letter formatted ready to go, and find an attorney that specializes in copyright law.
WHAT DOES THE FUTURE HOLD?
The Professional Photographers of America (PPA) has been on the frontline with helping photographers protect their work. The PPA, along with several other organizations, has been advocating Congress to implement an easier avenue for us to defend our work.
As it stands now, if our infringement cases have to see the inside of a courtroom, that court is usually federal court. For a lot of people, this might be impossible due to the costs and distances involved. The Copyright Alternative in Small-Claims Enforcement Act of 2019 (the CASE Act) would create a small claim like board within the Copyright Office to decide cases. Damages would be limited to $15,000 per infringed work and $30,000 per claim.
As of this writing, the Senate Judiciary Committee has passed the legislation. It still has some hurdles to jump through, but from everything I have seen, it has pretty solid bipartisan support in Congress. You can follow its progress through the government at govtrack.us.
There are a ton of resources out there to help you weed through the copyright process.
An excellent book on photography and legal issues
While I cannot begin to scratch the surface of this topic, I do hope that for those of you that have just started learning about copyright, this will be a useful resource for you.
It is up to you to decide if and how you are going to protect your work. If you do become a bulldog about it, then expect to get heat for it. Some people do not appreciate what we do and believe that once we post our work online, it is theirs for the taking. Do not let that attitude deter you.
WHAT’S YOUR STORY
Do you have a copyright story? Have you registered your photos or had to protect your copyright? Share it with us in the comments below. We’re interested to hear what you’ve done with your copyright.