Copyright

By Andrew Hudson

"I've taken a great photo and want to sell it. Should I copyright it? How do I copyright a photo?"

How Do I Copyright A Photo?

You don't. It's already copyrighted.

You don't need to submit a form, and you don't have to use that "©" symbol or a digital watermark -- those are just customary ways of identifying the copyright owner.

Thus you don't need to read this article. But if you want to, here are the chapters:

"Copyright" is "the right to copy." This right is a legal construct, designed for you -- the artist -- to support your artistic endeavors. Without copyright, people would be free to use your artistic work without payment, and there would be little financial compensation for the effort of creating art. With copyright, you have legal protection. If someone wants to use (copy) your work, they have to get your permission. You can negotiate a "license" to copy, and perhaps even get paid in real money. Hopefully this will give you more incentive to create art, and the world will be a better place.

Legal copyright dates from 1557. At this time, a British printers' guild prohibited members from printing books originated by other members. The publisher had protection but not the author. In 1710, Britain's "Statute of Anne" gave copyright protection to authors, limited the duration of the protection, and gave rights to purchasers. The U.S. Constitution of 1787 discussed "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" and the original U.S. Copyright Act dates to 1790. Rights were further defined and globalized with the Berne Convention, which was written in 1886 and adopted in U.K. law in 1988 and the U.S. in 1989.

Copyright applies to most artistic works, such as paintings, murals, statues, TV shows, music, and for us, photography. As a photographer, it gives you the exclusive right to make and sell copies of the photo; to create derivative works (other art based on the photo, such as a painting of the photo); to display the photo in public; and to license usage for money to other people. In a sense, copyright doesn't give you anything, it really just affects other people, saying what they can't do, thus it's known as a "negative right".

The © symbol, or any other marking, is not required. It was required in the U.S. before 1989, but adoption of the Berne Convention removed this requirement, as copyright is now automatic. However, it is still optionally used as means of identifying the copyright owner, along with the date of creation. You don't have to include the © with your photo, but the addition of "© 2006 Joe Bloggs" tells everyone that Joe Bloggs hereby declares copyright ownership of this photo since 2006.

The © symbol is technically a lower-case letter "c" with a circle around it. On a computer keyboard, the symbol is typed by holding down the "option" key and the pressing the letter "g". On a web page, use the HTML tag "©".

Similarly the phrase "All rights reserved" is not required. It was once required to assert international rights but was made redundant by the Berne Convention.

Yes, thanks to the Berne Convention. At the moment of creation, when the artwork is "fixed" in some tangible form, copyright applies automatically. For a photographer, when you press the shutter release you are making a photo and gaining copyright to that photo at the same time. You don't have to declare copyright or file any paperwork. It is yours to keep until you explicitly give it away or you die (copyright expires after you, the duration in the U.S. is the author's lifetime plus 70 years).

That said, there is an advantage to filing for copyright. If a dispute arises, you can get punitive damages (in addition to compensatory damages) if a form was filed before infringement.

It's important to note what is not covered by copyright.

Copyright does not apply to facts, since these are universal not individual. Factual dates and figures can't be copyrighted, but text expressing those facts may be.

Copyright can expire. In the U.S., the duration is lifetime plus 70 years.

Copyright does not prevent resale. In the U.S., after the "first sale", the owner can resell a work as-is (the work can't be copied or resold in an altered form).

Copyright may be superceded when other laws apply, such as trademark or privacy.

Fair use is permitted. This is complex, see below.

Fair Use (or Fair Dealing in some countries) permits copying for some purposes, but is a complex issue. Generally, copying is permitted for personal use, research, teaching, criticism, parody, news reporting and editorial use.

Beyond that, the law is deliberately vague and is decided on a case-by-case basis. A lawyer can render an opinion, but there's no accurate answer until a case is adjudicated by a court. Questions include: how commercial was the use, has the market of the original work been affected, how different is the derivative work, has a significant amount of work been copied. Note that "fair use" is an "affirmative defense", where the infringer has the burden of proof to show that the use was indeed fair.

Generally no, as publishers live by copyright law and usually have established rates which they gladly pay. A more likely problem is that publishers may not know that you are the copyright owner, which goes back to that "©" symbol and digital watermark.

If you put your photos on the Internet, you may find them cropping up on other amateur websites, but not on professional websites or in printed media. Pictures on the Internet are too low in resolution to use in print. By the way, putting photos on the Internet may make them publicly available but does not (in the legal sense) put them in the public domain.

What about overseas? Your copyright is valid in all countries that adhere to the Berne Convention.

"Very nice but you haven't answered the original question: How do I copyright my photo?"

Get a form here. Complete, attach a copy of your photo, and mail to U.S. Copyright Office in Washington, D.C.

Have fun!

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