Copyright is one of the top concerns facing photographers and illustrators today, as well as the customers who buy our work
For us creatives, our intellectual property is not only our current business, but it’s also our retirement account. We must be able to control and license the intellectual property we create. If we’re unable to benefit from its long-term value, we’ll be unable to remain in the marketplace.
For companies working with images in their day-to-day business – such as print providers dealing with graphics for a P-O-P project, for example – they must be certain those images are indeed free and clear to work with. No print providers want to go through the legal hassles and expenses that can arise if it’s found that a project comprises images whose copyright has been infringed. Not only will it be difficult to collect payment from a client being sued for copyright infringement, but the print provider himself may find that he, too, is implicated in a lawsuit. And keep in mind that there are consequences to copyright violations: Copyright owners can seek damages of up to $150,000 per infringement, plus all legal fees and court costs.
First, some basics
Copyright is, literally, the “right to copy” – to distribute and display copies, to make derivative works, and to profit from those copies. Granted at the moment of creation, copyright lasts for 70 years after the author’s death. Copyright infringement is the unauthorized use of a copyrighted work.
In order to gain protection, a work must be tangible – photos, paintings, music, software, etc.; ideas themselves cannot be copyrighted. The person who creates the tangible property owns the works, period. Most photographers and illustrators hired today are freelancers. The works they create they own, unless they sign a contract stating otherwise (other exceptions to this are if the creator is a full time employee or if there is a “work-for-hire” agreement signed by both parties).
Technically, works do not need to be registered in order to gain protection under copyright. In the US, however, registering works with the US Copyright Office (www.copyright.gov) is really the only way of legally defending copyright claims (in many other parts of the world, registration is not needed for full protection). And although it’s no longer legally required on copyrighted works as of 1989, the formal copyright notation is typically enough to dissuade innocent or non-willful copyright infringement. (the copyright notation comprises the word “copyright” or the symbol ©, the year, and the name of the author – for example, © 2011 Seth Resnick; some countries also require the notation, “all rights reserved”).
A work may be registered at any time, but to receive maximum protection it should be registered before publication, or within 90 days of first publication. Registering after an infringement has occurred entitles the artist to compensation for the use, plus any profits the infringing party has gained. Infringing a previously registered image, however, can bring statutory damages of up to $150,000 per willful infringement plus attorney’s fees and court costs. In addition, copyright involving more than $2500 can be deemed a felony. Importantly, the power of registration itself, and the copyright symbol and notation, is typically enough to encourage a settlement without ever going to court.
Evaluating gray areas
So copyright law is not rocket science, but there are some gray areas that sometimes make it difficult to follow. Here are some typical questions that arise between creators and those who work with their images:
- We always assume that we have the rights to reproduce an image that’s been supplied to us. We also assume that, as a third party, the acquisition of rights is not our responsibility and that we can’t be legally responsible if there is an error.
Everyone is responsible, and if there is a legal action it’s typical to sue all parties. Even if you are an innocent infringer, damages may still have occurred. Contracts should be used for licensing of images, and ensure that your clients have the rights to use the images they’re providing you with.
- What about asset-management programs and online archives that archive and manage images? Does the inclusion of an image into such a program or system “eliminate” the copyright? And does a print provider, service bureau, etc., need the image creator’s permission to store said images (if the images were provided by the image creator’s clients)?
The copyright remains with the artist despite the inclusion in any database. When the United States Supreme Court issued its opinion in The New York Times, et al v. Tasini, the court held that the “revision” privilege for collective works does not include republication of the writers’ works in electronic databases. This decision specifically means that unless a freelancer grants electronic rights to a publisher of a collective work, such as a magazine, then the freelancer controls these rights exclusively. No image should be included in a database or asset-management system without the permission of the copyright holder or his agent.
- I hired the photographer, paid for his time and expenses, told him what to do – so I own the material, correct?
No. Unless the work was produced under a “work-for-hire” contract, the person who produced the tangible property owns the work, and the usage of such work is governed by a license for the use.
- I paid for the use of an image in a brochure and now I am posting the brochure to our website. This is fair use, correct?
No, the Web or any other usage is a separate usage and must be granted by license.
- We have a buyout policy.
Many clients believe that “buyout” means that they own the image and have unlimited exclusive rights and/or the copyright. In fact, “buyout” is not a legal term. To the photographer, the term may indicate certain specific, unlimited rights, but no transfer of copyright. The worst part of this situation is that both parties believe they own the images, which can lead to a dispute causing the loss of a client and a legal fiasco.
- I bought a print by the photographer so don’t I own it as well as the rights to reproduce it?
You bought the physical print, but not the rights to reproduce the image; the creator retains the rights.
- If I change more than 30 percent (40 percent, etc.) of the image, then it is legally a new image, correct – and I would have the new copyright?
No, the result is a “derivative,” and the derivative rights are the sole property of the copyright owner.
- I took several images and combined them into a new image, which is now mine, correct?
The copyright for each of the images remains the exclusive property of the owner of each image; the result here is a case of multiple infringements.
- I found the image on the Web, hence it’s in the public domain, yes?
No, the Web or Internet is a form of publication, exactly like print, and full copyright protection is applied.
- Someone e-mailed the material to me, putting it into the public domain, correct?
E-mail is not public domain, and the transmission of an image via this medium (or any medium) has no effect on its copyright status.
- Why can’t I use someone’s image if doing so really doesn’t cause them harm – after all, it’s free advertising.
Bottom line: The copyright belongs to the creator, and it’s up to him or her to decide if and when to license the material.
- When does something fall under “fair use”?
Fair use is a very gray area that leads to a lot of confusion. Under the fair-use doctrine, copyrighted material may be used under some conditions. In order to determine if a use is fair or is an infringement, you must determine the impact this use will have on the potential market for the copyrighted work. Even in the educational market, where a work is used for the classroom – which generally does fall under fair use – the usage may be beyond the scope of fair use if the value or market of the copyrighted work is lessened. The best advice: Ask if you want to use a piece that you feel comes under fair usage. One form of fair use which is slightly more clear is that of parody, in which a piece of copyrighted material is used for social commentary.
- We require all artists to sign a contract stating that the photographer or artist “will hold harmless from and indemnify us against all costs (including, without limitation, legal fees, settlements and/or judgments) incurred in resolving such claim.” Does this take care of our responsibility?
Most artists can’t legally sign a statement like this because, regardless of intent, we don’t have the insurance or financial wealth to indemnify a large business. We would be committing fraud by signing a statement like this knowing that we don’t have millions of dollars worth of insurance. Better is the following statement, which is fair and represents the best interests of both parties: “Photographer or artist will warrant the originality, authorship, authenticity and sole ownership of all rights. The author will use the best of their abilities to provide releases when requested, obtained in writing, and ascertain to the best of their abilities that publication of the material will not infringe upon any copyright or right of privacy. Author agrees to cooperate in the defense of any legal action, which may be brought against client arising from the publication of the material.“
If you’re interested in accessing more information on copyright, your best place to begin is the US Copyright Office website. Meanwhile, a good rule of thumb is that if you have a question about an image, ask first before making any assumptions.