If you’re a photographer looking for a quick, non-complicated overview of copyright law, our “Copyright Basics” primer should get you up to speed. Copyright law applies to many types of original works in fixed form, such as artwork, sculptures, music compositions, motion pictures, and written content. This guide will focus primarily on Photography, and the steps photographers should take to protect their photos and maximize the exploitation of their copyright.
Copyright Basics for Photographers
A Copyright is the exclusive legal right to control the use and reproduction of photographs (or other intellectual property) you create. It gives you the exclusive legal right to reproduce, distribute, publicly display, or create derivative works from an original work/photo. Copyright also gives its owner the exclusive right to license those usage rights to others.
For example, copyright owners have the exclusive right to:
- Choose where and when their photos are displayed
- Choose if copies can be made, and how many
- Choose if someone else can use their photo for commercial purposes
A photographer owns the copyright to a photo the moment he or she clicks the shutter and creates the image. Often times there is confusion as to who owns the copyright to the images if the photographer was hired to take photos.
Let’s look at a practical example. If a bride and groom hires a wedding photographer to take pictures at their wedding, often times that bride and groom might mistakenly believe that since they hired the photographer, they own the rights to the photos. This is simply not true. A photographer in that situation retains all ownership to the copyright of the images. There are exceptions to this rule – for example, if the photographer is working as a full-time employee, then typically the employer would own the copyright in the photos, unless the employment contract specifies differently. But as a general rule, if you are not the person’s full time employee, you own the rights to the photos you have taken. Of course, every situation is unique, and if you’re not sure, it’s best to consult with a copyright attorney about your specific situation and simply ask. You can get a free consultation with a lawyer right now by signing up over there.
How long does my copyright in the photo I’ve taken last?
For a photo taken today, your copyright lasts for the rest of your lifetime, plus an additional 70 years. Things are a bit more complicated if a business owns the copyright, or if the photo was taken many years ago. You can visit our advanced copyright primer for photographers to learn more.
Your Copyright is Almost Useless Without Proper Registration
Now that we’ve cleared up who the copyright owner is, here’s the single most important point you can learn about copyright law: The rights given to you automatically under copyright law are almost useless without also contemporaneously registering the photo with the United States Copyright Office.
Here’s the deal. Yea, you own the copyright the moment you click the shutter, and have all of the exclusive rights. Blah, blah, blah. Here’s the thing. You can’t really meaningfully ENFORCE any of those rights unless you REGISTER your photo.
Registration of your photos isn’t required by law, but in order to collect statutory damages and attorney’s fees for the theft of your photo, proper registration is required. In fact, before you’re even allowed to file a copyright infringement lawsuit, it’s REQUIRED that you have a properly registered photo!
Since Federal registration is necessary in order to legally enforce any of the rights given to you under Copyright law, why would you NOT get into the habit of timely registering all of your photos?
Is There a Time Limit to Register My Photos?
Here’s the deal. You can register your photos at any time, but in order to qualify for the recoupment of statutory damages, court costs, and attorney’s fees, you must register your photo BEFORE it is infringed/stolen, OR, you must register it within 3 MONTHS of its publication. If you register your photo after it has already been infringed, you will not be able to recoup statutory damages or attorney’s fees, but you can still sue to prohibit use of your photo.
Sally takes a photo and posts it for sale on her website. 4 months later, a company copies her photo, and uses it in an advertisement without her permission. Sally never registered her photo. Sally can now register her photo and sue the company for the equivalent of her typical license fee (approximately $1,000), but Sally will be ineligible to recoup statutory damages or attorney’s fees. Sally winds up paying her attorney $3,200 to recoup a $1,000 fee. Sad Sally : (
Steve is a professional photographer who is in the habit of regularly registering his photos in batches every 3 months. Steve takes a photo and publishes it on line. 4 months later, a company copies his photo, and uses it in an advertisement without his permission. Since Steve registered his photo, Steve does not have to pay for an attorney. Steve’s attorney sues the company for $150,000 plus attorney’s fees and court costs. Steve gets a very large settlement check, buys lots of new camera gear, and did not have to pay any money out of pocket to a lawyer to enforce his rights.
Be like Steve, not like Sally.
How Do I Know If My Photos Are considered “Published”?
Copyright law defines “publication” as the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a business or group of people for distribution, or public display also constitutes publication. A public display does not in itself constitute publication. If you’re not sure if your photos are considered published or not, list your photos as published. It’s the safest course of action, as there’s no detriment to doing so.
How Do I Register My Photos?
You can register your photos on-line at the electronic Copyright Office (eCO). We’ll have a walk-through video posted soon so you can follow along in real-time to complete your registration, and another article on the registration process itself. For now, here’s a PDF step-by-step walkthrough explaining how to register your photos. Follow the steps, pay the $55 filing fee, and you’re done.
Some general information/tips:
- Like most professional photographers, you should get into the habit of registering your photos in batches every 3 months.
- You can register as many photos as you want in a single batch collection, so register all of the photos you’ve taken in a 3-month period as one batch, and pay one registration fee of $55.
- Many photographers label their batches by month/year (i.e. 2017 Jan-March; 2017 April-June; etc.)
- You can upload small low res files.
- If you’re not sure if your photos have been published or not, list then as having been published. We’ll get into the distinction between the two in our intermediate copyright series.
WHAT YOU NEED TO KNOW: To maximize the amount of money you can recover from stolen images, and to ensure you have the best protection, get into the habit of registering your photos in batches every 3 months. For example, on March 31st, put a low resolution JPEG of every photo you’ve taken since January 1st in a folder, and name it “2017 Jan-March”. Register this group as a single collection and pay the $55 registration fee.
If you register your photos in batches every 3 months, you’ll ensure that you haven’t blown any statutory deadlines, and you’ll ensure that if one of your images is infringed, you’ll be able to recoup the maximum amount of statutory damages available to you (up to $150,000!), plus you’ll probably be able to have a copyright attorney represent you at no cost to you, since the copyright attorney would be able to recoup attorney’s fees from your infringer. So look at the $220 a year in filing fees as insurance against protecting your rights and maximizing your recovery.
- If you had to pay an attorney to enforce your rights, that $220 annual registration fee would be less than an hour in billing time.
- Sometimes it’s far more lucrative for a photographer to have a photo stolen than properly licensed, but only if the photo is properly registered.
Should I Watermark My Photos?
You are not required to use the copyright © symbol to be eligible for copyright protection. You are not required to use any watermark or identification whatsoever to be eligible for copyright protection. What you choose to put on your photo or not is your business.
With that in mind, watermarks are a good idea for several reasons. First, it identifies who owns the copyright to the photo. If someone is interested in licensing your photo, they know who to contact. Second, if someone steals your photo and crops out or otherwise removes your watermark, it’s evidence that they intentionally infringed your copyright (leading to higher statutory damages), and it may make you eligible for additional protections under the DMCA.
The Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act, often referred to as the DMCA, was enacted by Congress in 1998 to strengthen copyright protection in the digital age, and it can be found in Section 1200 of the U.S. Copyright Act. It allows for some additional protections if your photo is stolen or reproduced “on-line”, regardless if your photo was properly registered or not. Section 1202 of the DMCA makes it illegal for someone to remove your “copyright management information” from your photo. This includes cropping or cloning out your watermark, or removing your metadata.
If you find a website that uses your photo without your permission, the Digital Millennium Copyright Act (DMCA) allows you, the copyright holder, to send a letter to the website’s Internet Service Provider or Copyright Abuse Agent to request the copyright-protected material be removed. This letter is often referred to as a “DMCA Take-Down Notice.” It also allows you to recover statutory penalties ranging from $2,500 to up to $25,000 for intentional infringement regardless if you registered your photo or not, PLUS you may be able to recoup your attorney’s fees and damages.
What If I Failed to Register My Photo and It Was Stolen?
Did you take or publish the photo less then 3 months ago? If so, there’s still time to register. If you’re certain you failed to register in time, did the infringer crop out or clone out your watermark? Then you may be eligible for recovery under the DMCA. If you failed to register your photos on time, and you failed to include any water mark on your image, you can send a DMCA take-down notice to have your photo removed from the internet. Without proper registration, it most likely would not be financially viable to hire an attorney to enforce your rights.
Sad Panda : (
Some Frequently Asked Questions About Copyright Law Basics for Photographers:
Q: I own the copyright to my photos. Does that mean I can do whatever I want with them?
A: It depends. Are there any people in the photos? Will you be using it for commercial purposes? You may need a model release and a property release.
Q: Someone stole my photo, but they said since they gave me photo credit, it wasn’t stealing and there’s nothing I can do. Is this true?
A: No. Not at all. That’s great that they acknowledged that they knew who the person was who they stole the photo from. They still need to get your permission to use your photo, or they can be held liable for infringement.
Q: I work full time for a photography company. Do I own the photos I take, or does the company I work for own them?
A: The photos you take during the course of your employment most likely belong to your employer. Did you sign an employee contract or other contract discussing the rights to the images? If not, chances are your employer owns the copyright in the images. Are you an independent contractor, not an employee? Then chances are you own the copyright in the photos you’ve taken (absent any agreements to the contrary). It depends on several factors, and if you’re having an issue, it’s best to consult with a copyright lawyer and ask.
Q: Someone hired me to take their portrait, and now they said since they hired me, they own the copyright to the images. Is that true?
A: No. A customer who commissions and purchases the photograph does not thereby obtain ownership of the copyright.
Q: I registered my photo. Does that mean the idea of my photo is protected, or just the photo itself?
A: Ideas are not protected under copyright. You can have a million different photographs of Yosemite at sunset, and each one is uniquely protected.
Q: Can I copyright my business name?
A: Business names are eligible for trademark protection, not copyright protection. Visit USPTO.gov to learn how to trademark your business name.
Q: Do I need to put the copyright symbol on my photo, or put a watermark on my photo?
A: No. Whether you use the copyright symbol or not, or whether you use a watermark or not, your photo is still protected by copyright. You might want to use a watermark for other reasons, discussed above in the DMCA section.
Have more questions?
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