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.
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
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!