We recently had the opportunity to sit down with image-copyright expert Richard Kelly and discuss the essentials of copyright protection. Kelly is a Pittsburgh based photographer, an associate professor at Pittsburgh Filmmakers, a past-president of ASMP, and has lectured at the Society of Photographic Education Conference (SPE), Wedding and Portrait Photographers Conference (WPPI), Photo Plus Expo, ASMP Strictly Business 2 & 3, NAB National Association of Broadcasters, RMSP – Rocky Mountain School of Photography, The Lucie Foundation and FOTO-FEST International.
During our conversation we presented Kelly with several questions that we hope will illuminate an often confusing yet exceedingly important area of business knowledge for photographers and image-makers today.
1. What three essential things should every photographer should know about copyright?
a. Once an original visual work is “fixed in a tangible medium” it is effectively under copyright protection and the author can claim ownership. This simply means that once the shutter is clicked, and the image is presumably processed and stable, copyright protection is in place. This applies to everyone from a professional to a grandmother taking snapshots of her grand-children.
b. Registering copyright with the US Copyright Office is not required, but there are several very good reasons to go through the registration process. First, if your copyright is infringed upon, after registration of the work, you have very solid grounds on which to stand to positively resolve your situation – without making a federal judicial case of the situation. But if you do need to bring a lawsuit, and you prevail, your Attorney’s fees and costs may be covered under the statute by the losing party. You are also eligible for Statutory Damages that are outlined in the Copyright Act and depending on your case, could be substantially more than the actual damages that you would be eligible for if you hadn’t registered the work prior to infringement. It should be noted, however, that you must file for copyright registration before taking legal action.
c. From a practical standpoint there are two reasons copyright is important and useful to a visual artist. One, is regarding control of the work; who makes copies and who can make derivatives is under the many exclusives rights granted for each copyrighted work. You might think of it as a bundle of rights that are connected to each frame of an image. The second is the ability to license or monetize the work. One way to visualize this is that the visual work protected under copyright is like a virtual sleeve, surrounded but separate from the physical (or binary image). A framed print is the physical, but the copyright is disconnected to the print. I may sell a print and retain all of the rights, except the right to display. On a related note, when applied to a physical print the first sale doctrine applies: the purchaser of the print may sell it to another without the authors permission or financial benefit. This is a hot and much debated area in the world of high stakes, fine art auctions. There is pending legislation regarding Artist’s Moral Rights that may someday change this clause and in some European jurisdictions the artists already do have such “moral rights,” but for now it’s important to remember that Copyright is a right that is distinct and separate from the physical image.
2. What has been the most surprising thing that you’ve learned about copyright ?
The more I learn, the more I realize, that copyright can be very complicated. In the past semester, I took an online class through the Berkman Center at Harvard University. One of the areas of copyright I am most interested is Fair Use. This specific doctrine of the 1976 Copyright Act carves out a defense for copyright infringement. For instance, when we discuss a work of art critically, to have a fully informed discussion we need to show/see it in order to have a proper discussion. The artist may not want their work discussed in this manner, but under Fair Use those discussing do not need the permission from the artist. The same is true if I want to show the work in a photography class, as long as it is a live, in-person class, that is also considered to be fair use. But, the more you learn, the more complicated it gets, Fair Use is not always fair and with exceptions of settled law like those that I mentioned, if a judge deems that your Fair Use is not fair then it’s an infringement and only a judge can decide. Lately,federal judges have offered rulings that seem to be a bit confusing on the application of the Fair Use Doctrine. I suspect that it will continue to be an area that is often litigated.
3. What do you feel is the greatest misunderstanding photographers have regarding copyright and their images?
Copyright is about art, art is about emotion, and artists are emotional beings. When one’s work suffers copyright infringement, most feel emotionally damaged or personally attacked. Unlike other business interactions, many of which we can easily let go without a second thought, copyright infringement rarely escapes one so easily. I would like photographers to keep this in mind, especially in today’s world where various copyright rights are infringed every single day. Most occur innocently, but with a click here and a download there, it’s easy to copy or create a new or derivative work.
Copyright in its original form was built to control publishing on a printing press – physical books, pamphlets, and other physical, printed matter. Copyright under the English model a few hundred years ago was designed to benefit the publisher/printer, not the author/creator. As we’ve fast forwarded a few hundred years and moved from physical particles to kilobytes, rules that applied so well to books are not so easily adapted to the 1’s and 0’s of virtual entities.
I think the biggest mistake photographers make today is thinking they have control when, in fact, they don’t. Conversely many feel like they are out of control, but it is possible to take advantage of technology and copyright protection to achieve goals. I often tell photographers that the best way to protect your work from theft and infringement is to store it on a shelf in your studio. That said, most photographers create pictures in order to share our view of the world with others, and that isn’t going to happen if the work never leaves a closed box.
That said, if you decide to open the box and share your images with the world you must be willing to accept some level of infringement.
4. Are copyright issues a new phenomenon ?
No, not at all, copyright has its roots in statutes that date back to Queen Anne (early 18th century). There has always been an uneasiness between creative works and duplicating technology. For hundreds of years it took nearly as much effort to copy a work as it did to create it the first time. Later, in the case of books, financial costs to reproduce were still as high as for the original publication. It wasn’t until the cost of copies reduced to less than the original that tensions greatly increased. It was first the photo-copy machine, and soon after the Betamax video recording system, that really accelerated tensions between original, copy, and of course copyright. The digital revolution, the conversion of atoms and particles to bits and binary all linked with lightening fast network connectivity, that has greatly enabled copying and distribution: two things that copyright law regulates. This revolution has completely disrupted the decades old business models on which artists and industries have historically depended.
5. What single thing would you stress that photographers remember about Copyright and their work?
That they have copyright – out of the box they possess an exclusive bundle of powerful rights. They should have a plan for how to utilize these rights as useful tools in managing their works and to continually monitor the discussion and new decisions related to copyright, licensing, terms of service, and what that may mean for the control of their work and how they may use these tools to monetize their assets.
6. Is there one copyright reference you might suggest for photographers to have on their bookshelf or e-reader?
Yes, I really like The Professional Photographer’s Legal Handbook by Nancy Wolff. It’s an excellent and accessible reference for information on copyright, trademark, contracts, privacy, and a lot more.
If you enjoyed this article, F295 will be soon offering several 2 hour interactive, Copyright Essentials Skype workshops with Tom Persinger and Richard Kelly. This workshop will cover more issues about copyright protection, licensing, monetization, and more. There will also be time to discuss your questions and concerns. Email now, to receive information regarding cost and the first chance to sign up.
Note: While this article is our take on an essential copyright guide and is full of quality information, it is not meant to take the place of appropriate legal counsel.
Note 2: If you enjoyed this piece, you will probably enjoy our review of the new edition of the book Business and Legal Forms for Photographers — which has all of the forms and information you need to easily and inexpensively copyright your image(s).