Copyright: Questions and Answers

This week is official Copyright Week here at the Photographer’s Business Coach. Now I know that copyright is one of those terms that we all hear about and sometimes talk about, but from hearing the questions that photographers ask, it’s clear that most have no clue about copyright. I have to admit that I’m even stymied by some of the basics of copyright registration and such. It’s easy to get confused, but I’m hoping that together we’ll learn more about this subject that’s become especially important in this day where copyright violation has become the norm.

So here goes, a quickie little Q&A that I’ve come up with on the basics of copyright according to US law. (Other countries based upon English common law – such as Canada – share much with US law, but it’s not identical so much of what I say here may not apply to those in other countries.)

What is Copyright?
First, it’s copyright – not copywrite. Copyright is just as the name implies: it’s the right to control if and/or how a photograph (or any protected work) can be “copied” or reproduced.

Where does copyright come from?
Copyright was important enough to be enshrined in the US Constitution by the founding fathers. Congress passes the various laws that regulate the hows and why’s of copyright. The thing to know is that any enforcement of copyright is a federal issue and must be dealt with in federal courts. You can’t sue in state courts or small claims. Further, the law is the same for everyone in the US since states or local governments have no authority to regulate US copyright law.

How is copyright created?
Copyright lies in the hands of the creator of the photograph from the instant that image is created. In other words, you own the copyright from the second you take the picture. There’s a difference between owning a physical print and owning the copyright to that print. Just because the client may buy an 8×10 doesn’t mean they have any right to make any copies of that print.

What can be copyrighted?
“Original works of authorship” that are in fixed, tangible form. These works include photos and other pictorial works, music, sculpture, movies, recordings, literary works – including computer programs – and others. Ideas cannot be copyrighted. For example, the idea of “trash the dress” cannot be copyrighted so the first person to “trash the dress” can’t stop others from doing so. But if someone were to copy a specific image down to lighting and pose, then that could constitute infringement. (The term “trash the dress” can be trademarked however.)

Does owning the copyright mean I can do what I want with the photo?
No. If you have identifiable people and/or privately owned locations in your shot, you will need a model or property release to use the images commercially, i.e. promote a business – including your own. Owning the copyright to a photo is like owning a car. Yes the car is yours, but you can’t drive it over the speed limit without getting in trouble if you’re caught.

Who owns the copyright if a client pays you to take the picture (in the USA)?
The fact you may be working for a client or that a client may be paying for your expenses does not affect the ownership of the copyright. If you take the picture, you own it. (Keep reading though since there are exceptions.)

Who owns the copyright if a client pays you to take the picture (in Canada)?
Let me first say that I’m not terribly fluent with Canadian copyright law so I’m not going to get into any depth here. However in Canada, copyright rests with the paying client unless there’s a specific contract that dictates that the copyright belongs to the photographer. For this reason, it’s of paramount importance for Canadian photographers to use a contract that spells this out for each and every shoot. 

Who owns the photo if my assistant/associate photographer takes the picture?
Like it or not, the assistant or associate does. Just because someone may be shooting for you doesn’t mean that you own the images they shoot. Their ability to use those images may be limited by other considerations, such as a lack of model release by the subjects, but anything they shoot is theirs. If you’re not careful, it’s possible that you may find yourself in a copyright match that you weren’t expecting.

Are their situations where the person who shoots the photo doesn’t own the photo?
Yes. US copyright law provides that if a person signs a “work made for hire” (WFH) agreement, then the copyright belongs to the person or company specified in the WFH agreement. There is no such thing as an “implied” WFH agreement. Either one is signed that specifically states “work made for hire” or it wasn’t. There is no middle ground. (If you have a second shooter or associate working for you, I strongly recommend the PhotographersToolkit Associates Contract Kit which has WFH built in among it’s many protections.)

What about employees?
Things get a little gray here. If you have a full time employee whose job duties include taking photos, then copyright belongs to you the employer. On the other hand, if you have a temporary or part time employee, then you as the employer probably don’t own the copyright. Just because you classify someone as an employee for payment or IRS purposes doesn’t mean that you own the copyright. This is a gray area because there are no clear rules that dictate who is or who isn’t an employee for the purpose of copyright law. When in doubt, have the employee sign a WFH agreement or consult a lawyer. (Again, the Photographer’s Toolkit contract will come in handy here.)

What if a client wants to use an image, do I have to give them the copyright?
No. Just because you allow a client to use an image – or even give them the negative or raw files – doesn’t mean that they own the copyright. When you allow a client to reproduce an image – be it a wedding, portrait or commercial client – you are in essence granting them a license for limited reproduction rights. This license isn’t much different than the license you receive when you purchase computer software – the fact that you have a copy in your hands doesn’t give you the right to distribute it to others.

What if I only want my client to print photos for their own use, but not to sell to others?
Going back to the idea of a license, you can structure a license to allow some things but not others and for differing lengths of time. The broadest form of license is for unlimited use and unlimited time. You can license an image for “Personal use only. No resale to others” or any other set of uses that you might choose.

How do I create a license?
A license sounds rather official and complicated, but it’s not. A license is any set of directions or terms that give to the client. Just write out what you want in your contract and that’s it. If not in your contract, spell out your terms in your invoice or a delivery memo that give the client when you hand over your digital files. (See my recent How to Create a License post.)

What is Copyright registration?
Despite the fact that you own the copyright when you snap the photo, the law makes your enforcement options virtually toothless unless you register your images with the US Copyright Office. Instructions for registering can be found here: Copyright Office Instructions. In general, you must register your images before a violation for registration to be meaningful.

What do I do if someone violates my copyright?
This is a question that’s going to depend on the circumstances. If you find that someone or some company has reproduced an image of yours image without your permission, you’ll want to register the applicable image immediately. The unfortunate reality is that if your image isn’t registered, you’re really limited as to what you can do and how much you can claim for damages. While you may think your case is worth a lot of money if some big company uses your image without permission, you’ll actually be lucky to get much more than a few bucks. Regardless, once find out about a violation, call an attorney for the best advice.

What does registering do for me?
By registering your images with the copyright office, you’re entitled to attorney’s fees for the costs of collecting on an infringement as well as “statutory damages” of up to $150,000 per infringement. The practical effect of this is that you can get an attorney to take your case without you having to pay up front. Most clients will settle fairly quickly because they don’t want to have to pay up the big bucks. If you don’t register, all you’re entitled to are “actual damages”‘ which are generally minimal at best. (How much would you really be damaged if someone prints your photo without permission?)

Enforcing a copyright case with a registered image is like showing up for a knife fight with a gun. I can’t stress the importance of registration enough when it comes to collecting.
If you don’t believe me, here’s a real world case of a photographer who won a million dollar award from a client who infringed his copyright. There’s a thread on the Canon forum about this and the photographer who won the award actually chimed in. It’s an interesting read with a rare real world perspective. Here it is: Infringement Post. (Unfortunately, the PDN article link within the post is no longer valid.)

Why do you have to register to get any real protection?
Well, it’s a simple function of money. The companies that tend to do the violating also have the money to control the debate in Congress. Big business doesn’t want to have to pay when they illegally copy your image. The only reason that registration exists is to prevent photographers and other artists from being able to meaningfully collect on a copyright case. (In other countries, registration is not necessary to claim significant damages.)

This is why it’s paramount that we support organizations like the APA, ASMP and PPA. When changes to copyright law come up, they’re the only ones who can stand up and fight for our rights as photographers and creators of unique work.

In my next post, I’ll talk more about how exactly to register your images.

John Mireles

About johnmireles

Photographer, writer, thinker, climber, outrigger canoeist, bad guitar player and even worse singer.
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7 Responses to Copyright: Questions and Answers

  1. Tony Bisson says:

    Nice photos. I’m Pinning a few for inspiration:)

  2. Tanya Malott says:

    Great info! I have issues with this all the time. Because my clients are very private, I need to “own” everything my second shooters shoot. But if the event gets published, it feels wrong to put my name on those images….but most magazines just want one simple credit to cover everything. (they won’t print xyz for Tanya Malott) and my client hired me so they want my name on the images. What is the right thing to do?

    • johnmireles says:

      I don’t credit my second shooters in magazines. Too much work. My photos and those of my second shooter are edited and delivered together. Conversely, if I’m second shooting for an associate, my name doesn’t appear on the photos. At the end of the day, I’m trying to build awareness of my photography studio not the individual photographer. As with most things, being clear with your second is important and then having a solid contract with Work for Hire is important. When you say you “own” everything, I hope that means a signed WFH agreement otherwise you really don’t “own” anything.

  3. tanyaphoto says:

    Thanks for the above!
    Another question on copyright for you: I have a few photographer friends who often write blog posts about other (famous) photographers who inspire them. In these posts, they use the other photographer’s images, and at the end say something like “All images copyright so-and-so”.
    I would like to do it myself, but I read the fine print in magazines and books, and they pretty much all say “no part may be reproduced without specific permission”. I’m assuming most bloggers don’t actually get this permission. They just grab, use, and stick the name at the end to make it “OK”

    Is this really OK? Is it even legal??

    • johnmireles says:

      I’m not a lawyer nor an expert in copyright law. There are exemptions to copyright for what’s known as “fair use.” Material may be reproduced if it’s for education or critique. However, it’s a blurred line and one to be careful of. Using one small image that the writer directly comments on may be considered fair use, but posting several to pretty up their blog is most likely a copyright violation. Posting copyright notice doesn’t make the use any more legal. If I’m going to post another photographer’s image, it’s typically in the context of a book cover and only as it relates to the point I’m making. Posting a bunch of photos and saying “I’m inspired by this person,” while it’s flattering, is probably copyright infringement.

  4. tanyaphoto says:

    Thanks for the above!

    New question: Is it ok to do a blog post about some photographer you love, call it “portrait inspiration”, use a bunch of their photos, then write “Copyright famous photographer” at the end of the post?

    As I understand the fine print in every book or magazine I’ve ever read, you can’t use any of the images within without specific permission. But the practice seems prevalent among bloggers, even photographer bloggers.

    Is this practice legal?

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