Copyrights can be valuable intangible assets. The Copyright Act of 1976
made clear that photographers are the copyright owners of their images,
except when those images were made as an employee, or when the
photographer has conveyed the copyright to another party in a written
and signed agreement.
In an effort to enhance understanding of copyright, ASMP has developed
this mini-guide on the subject. This pamphlet is not a legal guide to
the subject. Instead it is intended to give you a fundamental
understanding of the subject of copyright and how it applies in your
profession.
COPYRIGHT BASICS
Copyright is a right, granted to you by law, to control the copying,
reproduction, distribution, derivative use, and public display of your
photographs, and to sue for unauthorized use (infringement) of your work.
This right begins at the moment you fix your photographic expression in
a tangible form, that is, when you create the latent image on film.
Copyright ownership, bestowed automatically when you make an image, does
not depend upon registration with the copyright office or placement of a
copyright notice on the image.
Although most images are copyrightable, some are not. To be
copyrightable, images must be original. Originality is essential to
copyright. If you exactly copy a photograph, the copy can not be
copyrighted, since it has no originality. (In fact if the first
photograph is copyrighted, you would need the original photographer's
permission to copy it.)
Making a substantially similar copy of someone else's copyrighted image
without authorization constitutes copyright infringement. It is usually
necessary to show that the alleged infringer had access to the original
work-but the images may be so closely identical that no explanation
other than copying is possible.
Ideas, themes and concepts are not copyrightable, Only the original
expression of those ideas, themes and concepts in some tangible form,
like a photograph, can be copyrighted. You might have an idea for a
great photograph, but you get no copyright until you make the actual
photograph. An art director might have a great concept, but that
concept cannot be copyrighted.
Having an idea or concept does not entitle one to a share of the
copyright of the photograph. The copyright belongs to the one who makes
the tangible expression of the concept or idea.
COPYRIGHT REGISTRATION
Copyrights can be registered with the Copyright Office in Washington,
D.C. Although registration is not required to own the copyright, there
is one instance in which you must have a registration and another when
there is a definite advantage to registration.
When legal action is necessary to remedy a copyright infringement, the
image must be registered before the legal action can be started. This
registration can be made after the infringement occurs. However, unless
you register before the infringement (or within three months after the
first publication even if after infringement, you will not be able to
sue for statutory damages, which are up to $100,000 per infringement
plus your legal fees. When statutory damages are unavailable to the
copyright owner a claim can still be made for actual damages, that is,
the amount of money lost as a result of the infringement plus the amount
of profits realized by the infringer. But actual damages can be
difficult and expensive to prove, and legal fees can be an additional
burden.
A photographer should always seek legal advice from a qualified attorney
before threatening a copyright infringement action.
COPYRIGHT NOTICE
ASMP recommends that all photographs carry a copyright notice, even
though it is no longer required by law. The lack of notice could
provide an infringer with a defense of "innocent infringement". This
defense could seriously limit the recovery of damages in an infringement
claim.
Copyright notice is a way of saying: This is my work - if you want to
use it, come to me. This stance reinforces the asset value to your work
and alerts everyone that you are prepared to protect that value.
Copyright notice consists of the letter c in a circle (C) followed by
the date of first publication and the photographer's name. For example,
(C)1991 (Creator's Name). The word "Copyright" or "Copr." can be
substituted for the (C). Either form is recognized, but use of the (C)
symbol can give additional international protection. The words "All
Rights Reserved" can also give further international protection.
A word of caution is called for on the subject of notice. Some persons
when typing or wordprocessing and some computer programs use a c in
parenthesis [(c)] as a substitute for a (C) . To the best of our
knowledge this form of notice has never been rejected by a court, but
there is no guarantee that a court would uphold a (c) as proper notice.
The law calls for a (C) or the word "Copyright" or "Copr."
LICENSING THE RIGHT TO USE YOUR PHOTOGRAPHS
As the copyright owner, you have to license someone to use your image
before they can legally do so. A license is simply a permission to use
the photograph with certain limitations.
A non-exclusive license does not have to be granted in writing-although
ASMP strongly urges all photographers to grant licenses in written form.
This avoids subsequent disagreements about the terms of the license. In
the absence of a written license, the photographer and client are in an
awkward position. If a dispute over usage arises differing
recollections of rights granted can only be resolved by negotiation or
legal action. Needless to say legal action, a last resort, is certainly
costly and to be avoided if possible. Negotiation, while suitable to
resolve disagreements, is best done before use begins, not after the
fact. Negotiate the license, then confirm the usage rights in a written
copyright license.
Under the copyright law, an "exclusive" grant of rights means a transfer
of all or part of copyright. Avoid these words, unless you intend to
transfer copyright ownership to the client.
If a client insists or you wish to offer exclusive rights consider
limiting the rights as you would limit any other grant of rights. That
is, you should properly grant the exclusive rights for a certain time
period, a certain geographic area, and a certain media, such as
advertising, books, etc. By applying limitations to the exclusive
license you are narrowing the transfer of copyright. By setting a time
period you are assuring the expiration of the transfer.
More information on copyright licensing, and samples of copyright
licenses can be found in the ASMP FORMS booklet, and in the ASMP
Assignment Photography monograph.
The rights which you license should be based upon the outcome of the
negotiations which you have conducted with your client. Generally, you
will grant rights to meet the particular uses for which the client wants
the work. The fee will usually increase as the bundle of rights granted
increases.
TRANSFER OF COPYRIGHT
You can transfer copyright ownership to another party. Copyright, like
any asset, can be bought and sold. The only requirement in the law is
that a transfer of copyright ownership be in writing and signed by the
copyright owner. Photographers should exercise care in signing client
purchase orders. ASMP has seen many examples of purchase orders which
have a copyright transfer included in the terms and conditions. Signing
such a purchase order would result in the loss of your copyright.
There is no law that says you have to transfer copyright to a client.
Remember, even though the client might be the originator of the concept
or idea this does not entitle them to the copyright of the photograph
which you, the photographer, originate.
WORK FOR HIRE
Work for hire is another way the client can become the copyright owner.
The difference between work for hire and a copyright transfer is rather
simple. In the case of a copyright transfer you own the copyright until
you transfer it. In a work for hire situation you never own the
copyright. It is owned by the client from the moment the work is
created, and the client is by law the author of the photograph. The
photographer is denied authorship and is treated as a tool of the
client.
Work for hire exist automatically in the case of an employee taking
photographs for the employer. As provided in the copyright law, no
agreements are required.
An independent contractor ("freelancer") can do a work for hire only in
certain circumstances. First, the work must be commissioned-that is
specifically ordered by someone, and if it is commissioned, it can be a
work for hire only if the photograph comes within one of the nine
specific categories enumerated in the copyright act as qualifying for a
work for hire:
Contribution to a collective work Contribution to a motion picture or
audio-visual work Translation Supplementary work Compilation
Instructional text Test Answer material for a test Atlas
The category most frequently involving photographers is a contribution
to a collective work such as a magazine or other periodical.
WORK FOR HIRE AND COPYRIGHT TRANSFER DIFFERENCES
Although many see work for hire and copyright transfer as the same
thing, they are not.
Under the law, if you transfer the copyright you can get it back after
thirty five years. This "recapture" provision of the law was designed
to allow photographers the eventual control over their body of work.
Also, when negotiating a copyright transfer you have the ownership and
can bargain for the price of the copyright.
In a work for hire situation you never have the copyright. You have no
recapture right at any time. You are simply selling your services for a
fee. That fee should reflect the present and the future value of the
copyright. If you signed a work for hire and later want the copyright
to the work, the only way you can get it is to negotiate with the
copyright owner to transfer it to you.
Finally, a work for hire will apply to all photographs taken on the
assignment, not just to those used by the client. A transfer of
copyright can be customized and apply to all the photographs or some
portion thereof, such as only those used by the client.
FAIR USE
The copyright law allows someone to copy your work without penalty in
certain cases. This is called "fair use". In order to qualify for "fair
use" the photograph would usually have to be copied for educational,
classroom, news reporting or other educational or public interest
purposes. Fair use is always subject to interpretation. There is no
simple rule to apply to determine when an unauthorized use is "fair
use".
Each case has specific facts that must be examined before such a
determination can be made. This is one reason why it is important to
consult with a knowledgeable copyright attorney before jumping to
conclusions about infringement.
COPYRIGHT AND COLLECTIONS
In recent years the trend has been to invoice the client with terms
stating that the grant of rights to use the photograph is not in force
until the invoice is paid in full. It should be understood that under
this provision nonpayment may be both a breach of the client's
contractual obligation and infringement of the copyright. This can
create a legal question about the best way to enforce your rights - a
question best answered by competent legal counsel.
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