Photography and the Law: Understanding Copyright
The intersection of photography and law is a complex place. At one of those crossroads lies copyright. Many photographers aren't familiar with this important topic and are left struggling with questions like "How do I register my work?" and "What protections do my copyrights provide when I discover that my photos have been used without permission?"
Carolyn Wright is a photographer and attorney who specializes in photographer's rights. She also publishes the popular Photo Attorney blog, where she writes about these issues. In this course, she sits down with Ben Long to discuss what copyright means to photographers and the correct steps to registering and defending their copyrights in the Internet age.
Understanding copyright registration
- Hi, I'm Ben Long. If you're like me, you take pictures and you understand how you need to get the shot into the camera, what you need to do with it in the computer, and you have this vague idea that maybe there's some legal issues around using that picture or even taking that picture and it doesn't go much beyond vague idea. I am here now with Carolyn Wright, the Photo Attorney, and Carolyn, I've got a lot of questions to ask you about copyright and what it means and whether I need to do something different, and I understand you're the person to talk to.
- Well I'm happy to be here and I certainly want to talk about this cause it's an important subject for photographers. - So we've all heard the word "copyright" and I see the litte C-circle or a C symbol with a circle around it. I have a vague idea that copyright is there to protect the creator of a work. As a photographer, what's copyright? - Well copyright means different things for different artists, but for photographers it exists at the moment you fix the photograph and it doesn't matter whether you are taking a photograph on film or on digital or on your DSLR or your iPhone.
What's important is that the moment that you take a photograph and it's fixed, then you get the protection of copyright. - So merely taking a picture, it's inherently a copyrighted photo? - That's correct. A lot of people think that you have to register a copyright before you get the copyright but fortunately for photographers, the moment you take the photo, that you click the shutter, your photograph is protected by copyright. - Okay, so what does that get me? (laughs) - It gives you rights. For photographers it gives you the exclusive right and this is known under copyright law as the exclusive rights, and it's under a statute; U.S. Code Statute 17 Title 106 and those exclusive rights are the exclusive right to decide when or whether your photograph is going to be displayed, whether or when or if your photograph is going to be distributed, whether it's gonna be reproduced and whether there's gonna be a derivative work created from your photograph.
And derivative works for the simplest terms for a photographer is that a lot of of photographs are made into paintings. A lot of painters like to use a photograph as a reference and that's called a derivative work. So you as the copyright owner of the photograph get the exclusive right to decide whether your photograph is going to be reproduced, displayed, distributed, or a creative work created from that copyrighted work. - Okay, so I'm simply in control of how its used and where it can go and, presumably, whether there's any financial compensation in there along the way.
- That's correct. There is one caveat to that; something called fair use and we can talk about that a little bit later but in general this is the exclusive rights of a copyright owner. - Okay. Now you had mentioned the idea of registering copyright. What is that? Is that something I should do? - I think so. In the United States, and by the way, this is something that is unique to the United States. - Copyright? - No, registering with the copyright office. The other countries who while they will recognize copyright, they don't really have a registration program like we do in the United States.
So in the United States, if you register your copyright with the U.S. Copyright office, it gives you many advantages. Some of those advantages, when you get to court, let's say. If you're fighting about a copyright it gives you some legal presumptions such as that you own the copyright. That's as long as you register the copyright timely. But it also gives you some great benefits that if you're infringed and as photographers these days it's not really if you're going to be infringed, but when you're going to be infringed.
It gives you some options as to damages. Something called statutory damages. - So when we're talking about registering copyright we're not talking about, "I've taken this picture, I need to now go "register this picture" are we? Or are we talking about registering myself as an entity? - Good question. No. Really what we're talking about is taking copies of those photographs and making, these days, a digital file copy and submitting them to the Copyright Office. And you could do that in a couple of ways.
The old way was when you would register a copyright you would have a paper version of it; a paper. You fill out a form and you send in it could be a photocopy of the photograph, it could be contact sheets. That's the old way of doing it. Fortunately today the U.S. Copyright Office has something; what they call the Electronic Copyright Office. It's a little 'e', capital 'C', capital 'O' for short. We call it the eCO system; Electronic Copyright Office and it's really easy now.
You can sign up online and in a few minutes you just fill out some information about your photographs that you've taken. You can register one or you can register many at a time and you fill out some information about your photographs, you pay the Copyright Office a little bit of money, and then you upload copies of your photographs so that you actually have copies deposited. That's what they call it. Depositing a copy with the Copyright Office and that way if people want to determine which photos are registered with the Copyright Office, there's online records.
They can go look at the paper records at the Copyright Office in Washington D.C. But that's essentially the way you get it registered. - Okay. In the digital age, I shoot a lot of pictures. Am I choosing to register just my final selects or do I only worry about images that I'm gonna be putting out in the world somewhere? - I tend to, when I'm taking a lot of photos, I generally take photos when I'm travelling, for example, or a project or a shoot or something like that. My practice is to register all of my unpublished work as one group.
So let's say I go to Venice on a trip and I will come back to my computer and I will make copies of all of those photos that I've taken in Venice. Even the ones that I don't plan to release to the public cause it doesn't cost you any more and it's just an automated process that I have. That I make a copy, get my photograph ready to upload to the Copyright Office, and then I register them as unpublished. And it is tough if you are a high volume shooter. It is tough to try to get all of your photographs registered in that way. - Yeah.
- Fortunately the Copyright Office is now under a Beta program where you can register bulk volumes of your published photographs online as well. So a lot of it is depending on what kind of shooter you are and when you can get your photographs registered. You can register them as unpublished or you can register them as published. And for the photographer who's now playing catch up, and maybe has never ever registered a photograph in his or her life, the best thing is to go back and register your published works, the works that are out there, because they likely are being infringed especially if they're on the web and you want to make sure that your published work, the work that's out there accessible to the public, is registered so you can get some protection that way.
- What counts as published these days? Is that has to have been in some official magazine or I put something on Facebook or on my blog, is that published? - That's a difficult question because the Copyright Office really doesn't tell us. They will usually ask you. If you call the Copyright Office right now and ask the Copyright Office, "Alright, I've posted a photograph "on a social media site. "Is that published?" And the Copyright Office will ask you, "Do you think it's been published?" - [Ben] (laughs) - "No, yes. Whatever." - This is like Copyright Office as therapist.
(Carolyn laughs) Well how do you feel about your rights? - Exactly. Well the safest thing is that if you've made your photographs available to the public, to consider them as published. There's a lot of distinctions that may change that according to the law. But there's really an advantage to registering them as published rather than unpublished and it's just really too legal geeky to get into that right now. But if you've made it available to the public, that's the best thing.
If you, for example, put your photographs online and they're password protected; for example to a client and say, "Check these out. "Here's the password. Protected it." That's likely not published. - Okay. - So if the general public can't get to it, it's generally not to be considered published. - Okay. Published does not necessarily mean, does not inherently mean commercial sale or something like that. - Well, part of the problem that we have now is that in the old days to publish a photograph, it really meant it was published in a magazine.
- Right. - It was published in a book. We didn't have the internet to wonder whether something was published. So the courts really haven't caught up with technology and the internet age and so we really don't have distinct definitions yet of whether something on a social media website is or in an eBook, whether that would be considered to be published.
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