Photo Copyright Question

Shorter Version:

Are there any loopholes in the U.S. copyright laws that could be exploited in order to maintain the rights to a certain version of a photo which has been altered only slightly from the copyrighted version for which I no longer have the rights to?


Longer Version:

I have submitted a few shots to a publishing company and I was wondering a few things about the copyright information. Their terms and conditions essentially says that if the company decides to use my photograph then I will be asked to sign a contract in which I will give up all of my rights pertaining to the photo including the copyright for the image. Now here's the question... If I submit said image (and loose the rights to that image) can I still hold onto a very similar image whose exposure has been altered the slightest bit and still legally posses all rights regarding the photograph?


Thanks for reading everything I had to say.

If you are simply modifying the image file to process it slightly differently, no you can't as you have sold the copyright to that image. That would be no different to somebody lifting one of your shots off the internet and tweaking it slightly and calling it theirs.

There is some precedent for really radical alterations however, I believe, I seem to recall a 'pop art' version of a shot of Obama that went to court recently.

If you mean you have a second exposure (i.e. a different image) which is very close to the first, then you should have copyright to that. However, that may not be enough to stop the client who has bought exclusive rights from coming after you from a different legal direction.

If somebody wants copyright for exclusive use, they will be pi**ed off if another almost identical image is used to get around that. It would be unprofessional, unethical and potentially a legal minefield to do that. If you sell rights, you shouldn't (IMO) try and find loopholes to regain them.

A lot would depend on why they want copyright, in this instance. Do they want it just to allow them to publish it (in which case, what they really want is a usage license) or do they actually want full control over the image. Unfortunately, many businesses (inc. some publishers) don't really understand copyright and mix it up with usage rights. If you want to maintain rights to the image, contact them and clarify the situation first. But, once you have signed a contract, stick with the terms.

Oh, one more thought. If they really are after full copyright, make sure they pay very well for it. Many companies use these tactics as a 'rights grab', they pay a one off fee (maybe $100) to publish it and get you to sign over the rights. That then allows them to use it as often as they wish, with no further payment. They can also sell the image on to other users and may recoup several hundred / thousand dollars in sales, while you get sod all.

Personally, I would not sign away the copyright without payment of at least what I might expect to realise in future sales. If they just want to be able to publish it, sell them a usage license which spells out the use they have paid for.

Thanks so much sandpiper. Is there any online resource that clearly states the laws regarding copyrights of similar images and what aspects of the photos must be different in order for them to be legally considered separate? Also, someone once told me that a certain percentage of the image has to be distinct in order to constitute separate images. Is this true and if so, what is the percentage? Thanks again.

Noah212 wrote in post #11353842
Thanks so much sandpiper. Is there any online resource that clearly states the laws regarding copyrights of similar images and what aspects of the photos must be different in order for them to be legally considered separate? Also, someone once told me that a certain percentage of the image has to be distinct in order to constitute separate images. Is this true and if so, what is the percentage? Thanks again.

I'm not sure of any online resource that covers how different they need to be. It is very hard to quantify anyway, how much of a percentage difference does a change in levels, curves and some dodging and burning constitute? Do you go by area or what? The decision would likely be in a court as to whether or not the image was 'sufficiently' different. You might google the obama portrait case, and there was a case of somebody using advertising images as parts of their work I think, both of which I believe were allowed.

The point is though, if you get sued it could be very expensive - even if you win. If you really think it could be an issue and it is in a grey area, my recommendation would be not to sell the copyright if you wish to hang onto the rights like this.

Seriously, why enter a comp if you do not agree to it's terms and conditions.

Personally I think their Ts&Cs suck, so I would not enter.

As the copyright owner of the original image, you can create whatever derivatives you desire, and you will own the copyrights for the derivatives as separate works. If you transfer the copyright of the original image, you still own the copyright of the derivatives you have created. Be sure you have registered both of them first to have clarified yourself as the owner of both the original and the derivative before you transfer a copyright to anyone else.

However, if you sell the copyright on the premise of giving the new owner a unique work, and you have changed the image too slightly to be readily noticeable in the derivative, the new copyright owner of the original work would probably consider himself to have been "snookered" and sue you for creating a contract in bad faith.

For your own protection a copyright lawyer in your home state would be the only one to ask this question. Even with a lawyer you will want his/her advise documented, again for your own protection. I don't have any love for lawyers but then can save your backside.

If you have already given up the copyright you will have to ask or buy back usage rights. I hope you haven't given up the copyright yet or you'll have to chalk this up to the price of higher education.

Is the publisher requesting that you transfer the copyright or are they asking for a broad (exclusive?) license to the copyright? The two have very different meanings. IF you are unsure as to what you are assigning them perhaps you should have an attorney review the T&C.

Wayne