Have you ever worried about theft? Now, when I ask this question, I don't mean the tangible sort of theft that might happen if you leave your camera in an unlocked car or if you set your camera bag down next to your table while you have a cup of coffee. I mean that less tangible theft that can happen when you put your photography online, on a public forum like Flickr, Facebook or Instagram. Can someone take your photos and use them however they like? What sort of protection do you have from online theft, and what steps do you need to take to secure that protection? Keep reading for the information every photographer needs to have about copyright.
What is copyright?
Copyright is a term used to describe a type of property ownership. Photographs, whether digital or film, are a kind of property. When you take a photograph, no matter how good or bad that photograph is, you are the exclusive owner of that piece of property. That means you automatically have some rights. The first is the right to reproduce that photograph. The second is the right to create derivative works from the photograph, the third is the right to distribute copies of it in exchange for money, to transfer ownership to someone else or to allow for its temporary use by a rental or lease agreement. And finally, if you are the copyright holder of that photo you have the right to display it publicly.
Who owns the copyright to a photo?
So here's the thing. The copyright owner of a photograph is the person who pressed the shutter button. So if you handed your camera to someone at a theme park and asked that person to take a photograph of you and your family, that person is technically the copyright holder of that photograph. So if for some reason you decided to later sell that photograph to the theme park for use in their advertising materials, you technically would need to track down that person and get him to transfer copyright to you. Of course, this is a situation that probably will never happen, and I'm telling you about it primarily just for purposes of curiosity—but in the strictest sense of the law you own the copyright if you were the one who engaged the shutter button.
Now there are exceptions to this, and the main one is if you work as a photographer for a publication or some other institution, such as a newspaper or a magazine. A newspaper or magazine photographer is an employee, so her work belongs to the company that signs her paycheck. In other situations, you might sign a contract under which your work would be considered “work-made-for-hire,” or “work for hire.” When you sign a work for hire agreement, you are assigning the rights to all the photos you take to whomever you entered into that contract with.
Now, what if you’re taking photos for a wedding or documenting some other event as a freelance photographer? Unless you sign a work for hire agreement, those photos belong to you—regardless of what Bridezilla has to say about it.
Do photos need to be registered in order to receive copyright protection?
Yes and no. In the US, you own the rights to that photo whether you registered it or not. But if it’s unregistered (or wasn’t registered within three months of the date it was first published), you can only claim “actual damages” if someone uses it without your permission. “Actual damages” are based on whatever your regular license fees are for your photos (or standard licensing fees for the industry), plus whatever profits the photo thief might have pocketed from the infringement. If your work is registered, however, you can claim statutory damages, which can be considerably higher—statutory damages allow you to receive a certain amount of compensation per work rather than compensation that is based on an accounting of how much money you actually lost because of the infringement.
So does that mean I should register all of my photos?
No. Copyright protection is really only going to benefit you if your photographs are published or distributed publicly. And even the most obsessed Instagram user doesn't post every single photo she takes. And there’s a cost to copyright registration—in the US, this is currently $35 (this can be applied to collections as well as individual photos, although conventional wisdom is to limit the number of images in a collection to no more than 500, or the courts may reduce damages based on the large number of images in the collection). So for $35 a quarter, you could register a collection of all the work you did that quarter, and receive full copyright protection under the law were someone to use your work without your permission.
What if you take thousands of photos? You could register them all, but you need to ask yourself what the cost/benefit is of doing that. If you don’t mind spending the money and the time on the registration process, you could register every photo you shoot and sleep easily, knowing that all your images, no matter how unlikely it is they will ever be seen by another human, will be protected. Or, you could limit yourself to only those you are likely to share and thus reduce the time and expense of the copyright process.
What is Creative Commons?
If you use Flickr, you may have noticed that you have the option to license your image under the ”Creative Commons.” This means that you’re giving other people the rights to use your photos, with some limitations, without compensation. You have some flexibility with Creative Commons licensing, including the right to stipulate that your images can only be used for editorial purposes (vs. commercial use, such as in advertising) and the right to receive proper attribution wherever the work is used. Many photographers use Creative Commons as a form of self-promotion, others feel that it’s a way to contribute to the artistic community and encourage free expression and creativity, and still others simply consider themselves hobbyists and just don’t see a problem with allowing free access to their work.
Do I need to put a copyright notice on my photos in order to obtain protection for them?
Not anymore, but there are some definite advantages to doing it, and you should follow certain standards when you do. First, you need to either include the © symbol or the word “Copyright.” Don’t put the “c” in parentheses like this: (c) because that is not a legally established way to declare official copyright. Instead, use the © character. Next, you need to include the year during which the photo was first published. Finally, include your name. So your copyright statement would look like this: © 2016 David Peterson.
Even though it’s not required, having a copyright notice on your images can act as a deterrent. Someone who may be thinking about infringing might think twice when he sees that copyright notice, and in addition, having the notice there may entitle you to further damages if the infringer removes the copyright notice in order to cover up his misdeed. Finally, the presence of a copyright notice means that the infringer can't claim he didn't know what he was doing. All these things can help you if your case ever goes to the courts.
What about “Fair Use?”
So “Fair Use” actually refers to ways in which copyrighted works can be used legally, without the owner’s permission. I know, that probably just made your head spin. Fair Use is allowed “for the benefit of society,” and it’s really very limited—for example, no one can claim “Fair Use” if such use interferes with the copyright owner’s rights and normal use of the work. So someone could claim fair use if they’ve used your photograph in teaching materials, for example. Other uses specified in the law include criticism and comment, scholarship and research and news reporting. Generally speaking, if the use is not for commercial purposes it could be Fair Use, but there are other standards that must be met, such as how much of the work has been used and the effect that the use will have on the commercial value of the work.
So this is really a very limited introduction to copyright, and I should add that I’m not a lawyer and none of what you’ve read here should be taken as legal advice. Furthermore, this information is based on US copyright law—the laws in your nation might vary significantly from the above. However even if you are not an American, US copyright law will still protect you if your works are infringed within the US, so it’s a good idea to have a basic understanding of US copyright law in case you are ever in a situation where you need to know what your rights are. I want to end this discussion by recommending further reading—copyright law is big and complex and I haven’t been able to cover nearly everything you need to know in this one short article. If you’re a pro or thinking of becoming a pro, it’s a good idea to pick up a book on the subject—I recommend The Copyright Zone: A Legal Guide For Photographers and Artists In The Digital Age by Edward C. Greenberg and Jack Reznicki.
- What is copyright?
- Copyright is property ownership
- Who owns the copyright?
- The person who pressed the shutter button
- The photographer's employer
- The person granted copyright by contract
- Do photos need to be registered?
- All photos get basic protection
- Full protection requires registration
- Should you register all photos?
- Only if they will be publicly distributed or published
- What is Creative Commons?
- Licensing for free public use
- Copyright notice
- Not required, but could deter theft
- What is fair use?
- Free, legal use that doesn't interfere with the copyright holders rights
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