Copyright Questions

Real questions submitted to PhotoSecrets

Here is a selection of questions, most of which were sent as comments to PhotoSecrets.com. Click on a question to read the answer. To submit your own question, add a comment below or send an email.

Some questions have been edited for length, grammar and/or spelling. The replies are general layperson opinions and do not constitute legal advice. Other laws may apply in some situations and jurisdictions. Please consult a local lawyer for specific legal advice.

I AM NOT A LAWYER; THIS IS NOT LEGAL ADVICE

Copyright

About Copyright

Copyright is automatic, upon creation of an artwork. You do not need to do anything additional to get copyright.

Protection

Scope: What can I copyright

You can copyright any form of artwork that you create.

“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
U.S. Copyright Act, known as 17 USC §102(a)

Who can get copyright

Ownership

Registration

You do not need to register your copyright, but registration provides for extra damages in a court case. You can register a group of photos for one fee of $35 online.

About Registration

Registering your copyright

Registering online

Uploading electronic files

Submitting hard copies of works

Paying Fees

Privacy

Troubleshooting

Infringement

Using copyrighted works / Permission / Copying

Public Domain


Permission: People

Models

Models have privacy/publicity rights over their likeness, but only the photographer gets copyright in the photo.

Models: I am a model

Models: I am a photographer

Family

Copyright of a photo belongs to the photographer. Family members have privacy rights.

Celebrities

Famous people can make money from their image so they defend their publicity rights.

Permission: Places

Buildings

Copyright law has a “photographer’s exception” for architectural works [17 USC §120], and trademark law can permit photography from public viewpoints (see Rock and Roll Hall of Fame v. Gentile, 1998).

“The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”
U.S. Copyright Act, known as 17 USC §120(a)

Houses

Private homes can be protected by privacy rights if they are recognizable to the owner.

Nature, Public Viewpoint, Location

Views from public viewpoints (such as streets, state and local parks), are usually OK to photograph. There can be issues with property rights if you have to pay admission to enter a location.

Permission: Things

Internet Photos

Photos from Google Image Search still have copyright.

Old Photos

All photos before 1923 and some photos taken between 1923 and 1977 are in the public domain, meaning that they do not have copyright so are free to use.

Paintings

Artwork created after 1977 is protected by copyright.

Artwork

Statues, murals, graphical designs, creative text, and most other forms of artwork can be protected by copyright.

Products

Distinctive products and logos are often protected by trademark law.

Business

Portfolio

A personal portfolio might be “fair use

Work, Contracts

A freelance photographer owns the copyright unless there’s a written and signed agreement that says otherwise. The one exception is when the photographer is a full-time, paid employee, in which case the employer owns the copyright as “work made for hire.”

Other

Next page: Can I use a photo of a celebrity without their permission?

Comments

Comments


Reply by Anonymous

October 27, 2015

Where can I check if an item that says copyright is actually registered as copywritten?


Reply by Andrew Hudson, PhotoSecrets

January 11, 2016

If the artwork is recent, it has a copyright. Copyright is automatic in the U.S. from 1978 onwards, and in most countries.

Prior to 1978 in the U.S., more complicated rules exist. You can search for copyright registrations at copyright.gov/records.


Reply by Kumar

November 28, 2013

During a photo shootout, I was shooting a 4 months old baby. While I was composing the picture, father of the baby stood behind me and took picture of the baby covering LCD screen of my camera as well. His camera having ultra high resolution capability, he could potentially obtain a picture of what I have composed in my camera by cropping the picture he has clicked. In that case, can he claim ownership and copyright for that cropped image which was originally my own? Can he claim two separate copyrights for his full picture as well as cropped picture?


Reply by Andrew Hudson, PhotoSecrets

January 6, 2014

Hi.

He can claim copyright for the original part of his photo. So the entire view, including your LCD as a minor part, would count. But a crop of only your LCD (e.g. a straight copy of your image) would not get copyright.

For more info, see copyright: originality, particularly “slavish copying”.

“[No copyright] where a photograph of a photograph or other printed matter is made that amounts to nothing more than slavish copying.”

— BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)


Reply by Clint

October 28, 2012

David,

Recently I’ve had a buyer request the master image data, and said he wanted to have the image printed himself. The image in question is a once in a lifetime shot and losing control or maintaining the quality would in my opinion significantly destroy the value of the image. I know that copyright law may help but in reality it is more of a defense and could do little if you don’t have the means to peruse a legal remedy, particularly if the image would be sent outside the US. I thought a contract and a copyright usage agreement, or posting a bond with a substance fee may be a solution. What is your opinion?


Reply by Andrew Hudson, PhotoSecrets

October 29, 2012

MASTER IMAGE DATA

Hi Clint:

Stock photographers and agencies have this problem. They usually just have a contract (license agreement) which informs the buyer what they can and cannot do with the image data. In the olden days of film, stock photographers often had to send the original, irreplaceable slide, and hope that the buyer returned it safely. (In the contract, a lost slide would cost the buyer lots of money).

Presumably you have a digital image and can simply send a full copy of the image, so that you still keep the original.

If I were the buyer, I would want the master image data too, so that I could make the best possible print.

Buyers are unlikely to distribute the image data, so I don’t think this is a big problem for you. Just cover your concerns in the license agreement and ask the buyer to destroy or return the data when the project is finished.

Best wishes,

Andrew


Reply by David W. Reynolds

September 9, 2012

Here is my question, to kind of expand upon a question previously asked about college newspapers.

I am involved in my local college newspaper as a student. I am certainly not paid for what I do. But when is a student an employee?

I have been informed by the school paper editor that ANY photo I take, with the office camera or mine, on that campus in any situation, belongs to the school. In other words, if I take a photo especially FOR the paper, then of course its theirs. They are saying even if I take it for my own edification having nothing to do with an assignment, its still theirs.

This does not seem right, especially as I am not an employee...I dont think! Please help!


Reply by Andrew Hudson, PhotoSecrets

September 10, 2012

COLLEGE NEWSPAPERS

Hi David:

This is a popular question. I will add a page for copyright & college papers.

Essentially, you are right and they are wrong. Since you took the photograph, you own the copyright. They did not take the photo so they do not own copyright.

You can point them to a landmark case which is pretty much on point — Community for Creative Non-Violence v. Reid, 1989. An organization was ruled NOT to own the copyright since they did not employ the photographer, partly since they “did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds.”

The college paper is probably thinking of “work made for hire” but this does not apply since — as you’d be quick to point out — they did not hire you. “Hire” means, “using principles of general common law of agency, [that] the work was prepared by an employee” (Community for Creative Non-Violence v. Reid, 1989). Since you were not an employee (with full-time pay, benefits and taxes), you were not hired. No hire=no work made for hire. If they wanted the copyright, they should have either hired you full time, or got you to sign your copyright over to them in an explicit written document. If neither occurred, then you own the copyright.

To your pertinent question “when is a student an employee” the answer is “when they are an employee.” (see (Community for Creative Non-Violence v. Reid, 1989 for a detailed explanation). Since you are a student, and not an employee, you are considered an “independent contractor” which is NOT covered by “work made for hire.”


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