Copyrights for dummies

[Stocky]

“Copyrights for dummies” or “can I use this image?”

Since some people might never make it to a disclaimer at the end I will start with one: I am not a lawyer, and don’t know all of the laws about copyrights. If you have a legal question I recommend either asking a lawyer or doing some research on your own. All of the advice and links I will provide pertain to the US, but many countries currently have similar laws. I am surprised that I haven’t seen a sticky addressing some of these issues yet especially given how many questions I see and how confused people are on these topics. That being said please correct me if you think any of this is inaccurate so that I can improve the product for everyone.

What is COMMERCIAL USE?
This is one of the most misunderstood concepts I have seen here, so I am putting it at the top. Its not exactly a copyright issue exactly, but its close. Commercial use has nothing to do with selling the image itself, or selling prints of the image. It has to do with how the image is used. Commercial use means use in advertising as upposed to editorial or fine-art use. Commercial use of an image with a recognizable person requires a model release. Commercial use of an image with a recognizable building or piece of artwork can require a property release. This means that in a public location with no expectation of privacy you can take pictures of people with out their permission and sell them! In general I don’t recommend taking someone’s picture when they ask you not to, but as long as it is in a public place(street, park…) with no expectation of privacy (bathroom, changing room…) you are legally allowed to take the picture and sell prints. Nussenzweig V. DiCorcia is a great example of this in action (http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia). Similarly you don’t need someone’s permission to use their picture in a news story or magazine, only if it is being used to advertise a product. This only applies if the image was taken in a public place, and someone can always ask you to leave their house or business and prevent you from taking pictures on their property.

How do I copyright my work?
You already did! There is nothing special required to copyright your work, and as soon as it is created the author or photographer (I may use these interchangeably here) owns the copyright by default. The exception is “work for hire” which means that the writing or photography is part of your job. If this work is not in your contract and isn’t a service you provide for your employer regularly then you probably own the copyright. If hired for a one-off job then the best answer is to have a contract that specifically states who owns the copyright. There are lots of these forms floating around, and I won’t recommend a specific one, but as long as both parties are clear who owns the copyright, and both sign the contract then it should work out. In general these one-time events do not fall under work for hire because the legal definition of an employee requires more of a long term relationship. (http://www.copyright.gov/circs/circ9.html)

So why would I register my copyright?
I already said that you own the copyright, so why bother registering your pictures? The difference here is mostly in the amount of money you could get if you sued someone for using your work. If you do not register your work then you can probably only receive what you would have received if they had purchased rights to the image. If you register your work then you can receive damages up to $150,000 in addition to the value of the image (http://www.copyright.gov/title17/92chap5.html#504). Registering your images is relatively easy, and you can do so online or submit a disk with thumbnails of your images to meet the requirement. The fees are about $50 to complete the process. There is also a way to complete the process online, but as of April 2008 the program to do this is still in the beta stage (http://www.copyright.gov/eco/beta-announce.html). You can even register AFTER the violation if it is within 3 months of first publication, but if you get to this point I recommend you get some real legal help.

Do I need to watermark or add a digital copyright notice to my work?
No, but it’s a good idea. You gain two primary benefits from this form of copyright protection. First it makes life easier for an honest person. If someone sees your image and wants to use it then it is easier for them to find you and pay you for usage rights. The other reason to add a watermark or a digital-watermark is that you can receive higher damages if someone violates your copyright. Removing the copyright information that you had in your image violates another law and provides you more money in a suit.

Selling rights vs. transfering the copyright:
In general when someone wants to buy an image from you then want to license the image, or purchase rights to it. That means that they want to use the image, but you will retain ownership of the copyright and can continue to do what you want with it. The two basic ways to license an image are Royalty Free (RF) and Rights Managed (RM). Royalty Free means that the user pays once to use the image how ever they want with the exception of reselling it. This can range from editorial use as part of a news story or personal use as a desktop background to commercial use as part of a major ad campaign. Rights Managed means that the person pays for exactly what they use. RF licenses are usually less expensive and often come from micro-stock sites while RM usage is considered higher-end and usually brings in more money per use. I won’t get into the micro-stock debate here, but professional photographers generally frown on RF and micro-stock use.

Can I use this image that I found?
The first step is to determine the copyright status of the image. There are many public domain or creative commons images that you can use for many things. Public Domain images can be used basically anyway you want including in advertisements, or selling prints. Creative Commons licenses are a little more restrictive and generally allow use an any non-commercial capacity. If you can not identify the status of an image it is safest to not use it. If it belongs to someone else then you need their permission. This could mean that you just need to ask and get approval or you may need to pay a licensing fee. If you want to discuss an in these forums, or show it to your friends then the best way to do so is to provide a link so that they can see it in the original context online. Any other use without permission can will likely violate the copyright. These copyrights generally last 70 years past the death of the copyright holder, and this even applies to copying the image for use on your website, like myspace, or copying a print for personal use in your home. (http://www.copyright.gov/help/faq/faq-fairuse.html) cough cough AvatarsOnThisForum cough cough.

Someone violated my copyright. What’s the next step?
This is when you need to contact an attorney. Your first step should be to document the violation including printing or saving a copy of the website as evidence. You must also send a notice of violation and ask them to cease using your image. You may try to work this out with the individual by asking for reasonable compensation for the use of your images, or you can sue them and have your day in court. This is beyond the scope of this document. Note that if you typically give away your work then you will have much less grounds to demand payment for your images, so if you plan to make money from your photography then do so.

What do I do when I need REAL legal help?
A quick search for local lawyers with copyright experience is probably best. In just a few minutes a lawyer should be able to tell you how much help you actually need. Carolyn Wright of photoattorney.com also provides a blog with some sound advice and wrote “Photographer’s Legal Guide” for cases where my answers are a little too brief.

[Chandler.]

Good information. Thanks for posting.

[tomd]

good post, I copied it and printed it.

just kidding of course. Thanks for taking the time to assemble this information. It is very helpful.

[Stocky]

I don't mind at all actually and unlike my pictures, you are welcome to copy or print this to your heart's content. I did end up fixing the formatting with a few line breaks, but I kind of wish I could turn on "TEXT AND IMAGE EDITING OK" under my name.

[Chandler.]

Are you the author, or did you find this somewhere?

[Stocky]

This is entirely from my own research; mostly using the US copyright webpage. Don't worry, I know that the rules for written work are about the same as the ones for images.

[breal101]

Stocky, thanks for the excellent post, thought you might want to see another development in copyrights. Check out the link in this post about so called "Orphan Works".

http://photography-on-the.net/forum/...d.php?t=489231

[Chandler.]

Originally Posted by Stocky

This is entirely from my own research; mostly using the US copyright webpage. Don't worry, I know that the rules for written work are about the same as the ones for images.

I wasn't accusing you of anything, I was just curious. Thanks again for posting this, as I'm sure it will be useful to many more people who find this.

[Stocky]

Orphan Works:
Without reading the 130 pages of the US Copyright Office's report on Orphan Works I won't pretend to know too much about the issues. The US Copyright Office is currently considering a new law regarding orphan works (OW) or works where the copyright holder can't be identified or found. The intent is to allow people to use all kinds of artwork that would otherwise fall under a copyright. Currently if you see a piece of artwork somewhere, or notice an image online that you wish to use, or incorporate into your own work, and you can not identify the copyright holder you are out of luck. The Orphan Work law would allow you to use these things after searching for the copyright holder even if you are unable to find them. (http://www.copyright.gov/orphan/)

The concern for artists, including photographers, is that copyright infringements will increase under the guise of OW. Depending on how the law is written, artists of Orphan Works may have little recourse for seeking damages on stolen work. This law would also increase the burden on artists for registering their work. Currently artists are protected by law the moment they create an image, this law may require an image to be registered or entered into a database to be protected so that someone else would have a place to look for the image and identify the copyright holder.

(http://www.copyright.gov/orphan/comments/OW0642-PPA.pdf) This law is not yet on its final draft, so there is still the potential for it to change and anyone who doesn't like where this is headed should feel free to contact their senator or representative (http://www.usa.gov/Contact/Elected.shtml). The main issue I see open now is how licenses for orphan works would be issued. As long as the person wishing to use the work has to file for a usage license at the copyright office and pay for the use then I don't see any issues. People would have to prove that they searched for the copyright owner. This would only benefit people who are trying to be honest, and I always support people trying to do the right thing.

Please let me know if anyone has any more information on this subject, and I will add this to the base post at the top.

[breal101]

The concern for artists, including photographers, is that copyright infringements will increase under the guise of OW. Depending on how the law is written, artists of Orphan Works may have little recourse for seeking damages on stolen work. This law would also increase the burden on artists for registering their work. Currently artists are protected by law the moment they create an image, this law may require an image to be registered or entered into a database to be protected so that someone else would have a place to look for the image and identify the copyright holder.


Thanks again Stocky, I just wanted to urge people to take interest in this proposed change in our protection. I think this could end up causing a lot of headaches for artists. Having to register an image with the copyright office and then again (for an as yet undetermined fee) in some sort of privately held registry(s) seems to be a recipe for disaster to me. It largely depends on how the law is written, some say that corporate interests are pushing for a large benefit for themselves.

[Stocky]

So, any volunteers to write the form letter we are all going to use when we write to our representatives about the Orphan Works law?

[breal101]

Well, I ain't volunteering. I want to be fair about this, the law isn't in it's final draft yet. I think there might be a benefit if a workable central data base is established. Honest people could identify the owner and pay them for usage. The downside is, dishonest people could run a search on a body of work, find it unregistered and claim it for their own to use and sell. I really do think it is something to keep an eye on.

[tomd]

Interesting thread.
So I assume that I cannot legally take a picture of grafetti on a building and sell the image? The grafetti is considered art and I'd be selling for commercial use. Am I correct?

[Stocky]

Technically I think you are right about the grafetti, however I doubt that anyone would start a civil case against you because they would have to admit to their criminal activity in court. The thing about copyrights is that you only have to worry about the copyright holder making an issue out of it, and thats a case where you can assume you are safe.

[LBaldwin]

The EP, NPPA and the witers guild to name a few have been fighting the OW law for nearly 10 years now. For more info go to Carolyn Wrights website,
www.photoattorney.com

Also I would reccomend getting her book (sold 0n the site) it is a great read and very informative. I saw her at ISAP last year and she is bright, funny and an attorney / photographer!!