Photography and Copyright Law

© COPYRIGHT – Part 1

In part one of a multi part series on Photographer’s Copyright, I’ll be talking with Carolyn E. Wright of the Law Office of Carolyn E. Wright, LLC. She is a full-time attorney whose practice is aimed squarely at the needs of photographers.  Carolyn understands the special issues that confront both professional and amateur photographers alike, and was the perfect person to talk with about Photographers, Copyright, and the Law. While her legal credentials are among the best in the business, Carolyn thinks it is important to keep ties with the photographic community. That’s why she maintains an active wildlife photography business at www.vividwildlife.com, and enjoys teaching, writing and speaking about photography. She is a regular leader of photography workshops, and is a moderator and columnist for www.Naturescapes.net. When you turn to Carolyn for legal help, you are literally turning to the person who wrote the book on photography law. “Photographer’s Legal Guide”.

On the topic of copyright, it was an obvious choice for me to want to have Carolyn share some of her wisdom with my readers. Since many of the people who read my blog are in the photography business, avid amateur photographers, or fans of photography as an art form, it seemed like a good topic to cover. Copyright is often misunderstood, and I hope that the series of articles I’m writing will help clear things up for those of us who create photography, and for those that use it commercially, editorially, or otherwise.

In  part two of this series, I’ll be sharing some very valuable information from the ASMP, PACA, Copyright Alliance, and other photography and copyright related organizations.

An interview with Carolyn E. Wright of photoattorney.com

Photography and Copyright Law

Q: The term “Copyright” is often misunderstood. Especially when it comes to art and photography. The first and most obvious question would therefore be; What is Copyright?

In simple terms, copyright for photographers means owning property. With ownership, you get certain exclusive rights to that property. For photographic copyrights, the ownership rights include:

(1) to reproduce the photograph;

(2) to prepare derivative works based upon the photograph;

(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) to display the photograph publicly;

Found in the U.S. Copyright Act at 17 U.S.C. 106 (http://www.copyright.gov/title17/92chap1.html#106)

Q: What is the difference between copyright and creative commons?

Creative Commons is a type of licensing. Licensing means that you grant others some of the rights that you have to the photograph. For example, you may allow someone to reproduce your photo in the December issue of a magazine. You still own the copyright to the photograph, but you allow someone else to use a piece of it. Creative Commons provides different licensing packages without pay. The packages allow some flexibility with your licensing, such as whether you allow commercial use of your photo and whether you require certain attribution, such as your name or website, with the use.

Q: Does a creative commons license mean that I can use the photograph any way I want, for free?

If you offer licensing of your photo through Creative Commons, someone may use your photo for free but that person must follow the of the conditions of the license that you select. The Creative Commons license options include: “Attribution” (this license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); “Attribution-NonCommercial” (this license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms); and “Attribution-NonCommercial-NoDerivs” (this license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially).

Q: Who owns the copyright in a photograph once it is taken?

In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.

Q: If I don’t register my copyright, do I still own the copyright to my photos?

Yes. When a photo is not registered with the US Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or standard licensing fees plus profits derived from the infringement, if not too speculative. One source for standard license fees is a software program called Fotoquote.

Q: Should only Americans register their copyright with the Library of Congress in the United States?

No! All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin.

If your photos are first published in the United States or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.

Q: What is the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (DMCA), enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects photographers directly. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement.

Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision. If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. My article here: http://www.naturescapes.net/docs/index.php/articles/314 tells you how to request that your image be take down from a website.

The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:

No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

The statutory award for each violation of Section 1202 ranges from $2,500 to $25,000. The DMCA is another important tool in the photographer’s legal toolkit.

Q: If I am photographing a job for a client, does the client own the copyright or do I?

See above regarding the “work-made-for-hire” discussion.

Q: Do I need a model or property release to own the copyright in my photograph?

Copyrights and rights of privacy for people are different rights. When photographers take photos of people, they must be careful to not invade their privacy. This happens when someone enters a person’s private domain in a manner that would be considered offensive to the average person. As a photographer, the act of going on someone’s land without permission would be trespassing and also may violate the person’s right of privacy. You don’t have to take a photo or publish an image photo for the action to be unlawful. Some courts have found that a photographer has violated privacy rights even when photographing someone in public. Instances would include cases where the photographers harass their subjects, use hidden cameras, or wait for a woman’s skirt to be blown at a fun house. It also is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in public.

After the photo is taken, however, the photographer should be concerned with the person’s right of publicity. You violate a person’s right of publicity when, without permission, you use a photo of a person for your own benefit. The “editorial” use of a photo is not considered a use of the person’s image for your own benefit. “Commercial” use is different because the use benefits the photographer, so you need the person’s consent to use their image. If you get a model release signed by the subject, you are free to use the image commercially, i.e., for advertising.

If an image is used in a newsworthy item then that constitutes an editorial use. In such cases, a person’s rights are evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.

Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. Using a picture of a person in advertising or for trade without consent may violate the person’s right of publicity, especially when it injures the economic interests of the person due to commercial exploitation. If someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then the use is commercial. When the photo of a person is incorporated into a product such as a tee shirt, the use is commercial. At times, it is difficult to determine if a usage is considered commercial or editorial, so it is always safer to get the model release.

In general, if property is visible and can be photographed from a public place, you don’t need a property release to use an image that depicts the property and you may use the photo in any manner. Copyright law provides an exclusion for photographing buildings located on property, but not for statues or other items that may have separate copyrights. There also are restrictions on some governmental property. These include federal seals and insignia as well as military or nuclear installations due to security concerns. If the statue or copyrighted item has minimal presence in your image, your photo may fall under the exclusion due to fair use. Otherwise, you must get permission to take an image and to use it for any purpose.

Nevertheless, some companies have tried to prevent the use—both commercially and editorially—of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree on the 17 Mile Drive at Pebble Beach, CA, the Golden Gate Bridge, and the “Hollywood” sign. While these attempts have been unsuccessful, it can be expensive to litigate them

Q: Do I need to put the © notice on my photos?

You’ll often see a copyright “notice”—the familiar © or the word “copyright” with a date and name of the copyright owner—posted on creative works. A proper notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.” Some people use a “c” within parentheses like this: (c), but it has not been designated to be part of the official copyright notice. The second part notes the year when the work was first published. The third required part of a copyright notice is the name of the copyright owner. The final form looks like this: © 2011 Carolyn E. Wright. Including a copyright notice is no longer required for copyright protection, but it is a good idea to use it.

When you use the copyright notice it may stop someone from stealing your photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo. Also, it helps to post a copyright notice on your photos because the infringer then cannot say the use was innocent. Further, you may be eligible for DMCA damages if your copyright notice is removed to hide an infringement (see above). You may use the copyright notice without registering your work with the U.S. Copyright Office.

Q: What is “Fair Use”?

Fair use is the right to use copyrighted materials without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.

Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too.

Specifically, Section 107 of the Copyright Act states that:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 USC Section 107. http://www.copyright.gov/title17/92chap1.html#107

All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.

The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.

A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.

An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.

When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.

Q: What is public domain?

When a work is not protected by copyright law, it is considered as being in the “public domain” and any one may use the work without permission.

Q: What is a derivative work and who owns the copyright?

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other types of modifications. The work must be different enough from the original to be regarded as a new work—in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work.

The person who creates the derivative owns the copyright to revision, annotation, or other type of modification only. The original copyright is still owned by the original creator.

Q: Is copyright violation a crime?

The Copyright Act includes elements of crimes related to copyright. http://www.copyright.gov/title17/92appg.html The government usually prosecutes only the most egregious cases, such as counterfeited goods.

Q: What happens when a copyrighted photo is used without permission?

You have several options when you find that your photo has been infringed.

Option #1 – Do Nothing

You always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.

Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where – see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.

Option #3 – Prepare a DMCA Take-Down Notice
Purusant to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don’t reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.

Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.</strong

Option #6 – File a Copyright Infringement Lawsuit
Your most aggressive option is to pursue your legal remedies by filing suit. Unless you created the work outside of the United States and in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, you must register your copyright with the U.S. Copyright Office, hopefully before but at least after the infringement. (If you created the photo in a country that is a signatory to the Berne Convention, you do not have to register in the U.S. to protect your copyright or to file an infringement lawsuit in the U.S. However, if you do, then you may be entitled to statutory damages and attorneys’ fees, as noted here.) If your photo was not timely registered for this infringement, you may want to register the photo for future possible infringements, as well, to be eligible for statutory damages of up to $150,000 per willful infringing use for each photograph. See 17 USC Section 504(b) and (c). Legal fees and costs also may be recovered from the infringer. See 17 USC Section 505.

In most jurisdictions you need to have received your registration certificate to file a complaint. Unless you have a breach of contract or some other state claim, you must file your infringement claim in a federal district court. To file suit, it is best to hire an attorney to help you because the legal procedures are complicated. Note that you have three years from the date of infringement to sue for copyright infringement.

When a photo is not registered with the U.S. Copyright Office prior to the infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or industry standard licensing fees. One source for standard license fees is a software program called Fotoquote. You also may recover the profits the infringer made from the infringement if they aren’t too speculative.

Additional Claims
While many photographers place “watermarks” including their name and/or their copyright notice on their images or in the metadata of the file to prevent someone from infringing them, it’s fairly easy to crop or clone over the mark, or to remove metadata. Fortunately, the DMCA section of the Copyright Act provides a remedy in addition to the infringement claim when the infringer removes your CMI to hide the infringement.

Additionally, when you can prove that the infringement was done willfully, then you are entitled to enhanced statutory damages. “Willfulness” means that the infringer either had actual knowledge that it was infringing the owner’s copyrights or acted in reckless disregard of those rights. Evidence that the infringed works bore prominent copyright notices supports a finding of willfulness.

Q: How can I get permission to use copyrighted photography?

You may obtain a non-exclusive license from the copyright owner orally, but exclusive licenses must be in writing. It’s always best to put license agreements in writing, even if it’s only an email.

Q: When can bloggers use photos they find online for free?

A blogger may use photos found online for free only when the photo is in the public domain, the use is a fair use, or the copyright owner has granted the blogger a free license, such as through Creative Commons.

Q: How do I know if a photo is in the public domain?

The law is designed so that works of authorship eventually (or, in a few cases, immediately) are made available for all to benefit from and use freely. Works go into public domain for one of three reasons:

(1) the author failed to satisfy the required statutory formalities needed to perfect the copyright;

(2) it is a work of the U.S. government; or

(3) the term of copyright has expired.

Item (1) only covers work published prior to March 1, 1989. At that time, the copyright notice had to be affixed to the work immediately or it immediately lost copyright protection. (Copyright protection has been restored for some foreign works even if they were published without notice before 1989.) That law has been changed; work published after 1989 does not need a copyright notice to maintain its copyright protection. It is, however, a good idea to use a copyright notice when displayed or offered in any manner.

Item (2) refers to works created by government employees such as maps, charts, and surveys. They fall into the public domain from the date of creation. Item (3) addresses the length of time that a work is protected by copyright law. Since the length of time that copyright protection remains in force has been changed several times over the years, it can be difficult to determine when exactly a given work falls into the public domain without doing some serious research. For photographs created after 1988, you (or your heirs) own the copyright for 70 years after your death (unless you have transferred it in writing). After that time, the copyright falls into the public domain; anyone can use the photos in any manner that they choose. For a period of time before 1988, copyrights expired 50 years after the copyright owner’s death. Before then, the laws dealing with the length of copyright protection changed quite frequently. The chart found at http://www.unc.edu/~unclng/public-d.htm may be helpful in determining the applicable duration of copyrights for works established at various times.

Q: If you take a photo of a work of art that you did not create, who owns the copyright?

As the creator of art, the copyright owner has the exclusive rights in the art such as for reproduction. Courts have disagreed as to whether taking photos of copyrighted works is a violation. Regardless, the law prevents you from having copyright ownership of anything that is an infringement.

Q: If an illustration of one of my photographs is made and used commercially or editorially, is it an infringement of my copyright?

Yes, if it is deemed to be a derivative work and the illustrator has copied your copyrightable elements.

Q: Someone is using my photos without paying me or asking permission. What do I do now?

See the options identified above.

I hope you all found this interview to be helpful with your questions and concerns regarding copyright in photography.
For even more detailed information, please read PART 2 Photography Copyright Information
Thank you Carolyn!

Contact Carolyn about legal issues concerning copyright

Law Office of Carolyn E. Wright, LLC
Phone: 775.588.5147
Fax: 775.588.5961

Contact Details

OFFICES

West Coast (Main Office):
PO Box 430
Glenbrook, NV 89413

East Coast:
PO Box 250208
Atlanta, GA 30325

_____________________________________________

If you have any questions about Photography and Copyright Law please contact Carolyn or a local attorney specializing in copyright law. I can’t offer advice on any questions about copyright. I am a photographer and not a lawyer. Thanks for understanding.

Comments (89)

Add A Comment

  1. says

    Hello,

    Thank you for sharing all that great information with us about copyright law. I have a question, what happens if you photograph a wild animal on someone else’s property, do you have the right to sell the image in stock.

    I am based in the UK, if that helps but looking to sell stock images internationally.

    Kind regards

    Rob

  2. Caroline Cranfield says

    This is a little different from the previous posted questions, but I hired a photographer for my daughter’s senior photos. Met with the photographer to pick out our 15 pictures for our package and the cost of the package. Was supposed to meet photographer to pick up package over 3 weeks ago. Not answering text messages or phone calls. She is a great photographer, the pictures are beautiful. What can I do legally to push her to deliver on our transaction? I am paying her when I receive the photos, so the only money I am currently out is the sitting fee and the cost to have my daughter prepared for the photos. The issue is my daughter is getting very upset. Is there anything that I can do? This is so unprofessional. I don’t understand it?

  3. Gene Beley says

    Did you have a written agreement for the job that might have stated when the photos would be delivered? If not, you are just as much to blame as the photographer. Every transaction today involving money should be done with a written agreement instead of “Trust me.” It simplifies things when there is a problem.

    But, although I’m not an attorney, if I were a parent like you in this position, I would send a written communication, saying if you don’t produce the finished, promised photos by such and such a date, I will file an action in Small Claims Court. Then you must follow up this threat and DO IT. The cost is very small… usually $50, and will produce a verdict to resolve the situation. If the photographer is a no show, it’s an automatic win for you.

    I owned a newspaper in Morgan Hill, CA for 16 years and used the Small Claims Court repeatedly and never lost a case because I had a short, simple contract that people signed before we went to work on the advertisement. One must always ask yourself, “If I have to present this to a “Judge Judy”, are all my ducks in order?

    No bride should have to endure that kind of pain to get photos of her special day! Even though I’m 73, my wife and I are still sticking up for our adult daughter after her husband walked out on her and two children; my wife and I, who have been married 51 years, spent money for our daughter’s divorce attorney ($300 AN HOUR), and got her through this dark tunnel that took two years to complete the process. In contrast to the rest of the Justice System, which is just as much justice as you can afford, the Small Claims Court is the last bastion of fair American justice.

    Good luck!

  4. says

    I am a photographer. I do not have an idoor studio…all my shoots take place in public venues. I dont quite understand all the legal jargen…so my question is, Do i have to get permission from the person/persons i take photos of, (seniors, weddings, engagements, etc.) before i can use them as advertising persay on my website/pages. I read somewhere once where i did not need permission because i am the sole owner of all images. but recently a fellow photographer said someone got sued in my area for not getting a signed release. I do my photography out of my home and do not have a Tax ID. does this make a difference?

  5. says

    Congratulations on having one of the most sophisticated blogs I’ve come across in some time! It’s just incredible how much you can take away from something simply because of how visually beautiful it is

  6. says

    Hi,

    I travel to many countries and photograph people and places. I usually ask for permission to photograph a person. I have published books using these photographs.
    Is this a violation of law in any way.

  7. Noir says

    If a book is no longer being printed (just a few copies floating around from the 1950s) – can I share the photos inside the book with friends on my facebook wall? My wall is not public only those who I want to see it, can see it

  8. says

    Hello
    A friend from Italy noticed me yesterday that a collage of mine was used in a famous fashion magazine in Italy (300000ex/printed). It was used to illustrate an article that has nothing to do with me, my work, my publications on anything related to collage in general, but something about couple psychology.
    Fact is that they never contacted me for my authorisation or anything.
    What should/can I do?
    Im matthieu, i live in Berlin, Germany
    Any informations are welcome
    Thank you!

  9. says

    i get hired by an individual to take family photos. i give them a flash drive with photos and a limited print release. do i still “own” my photos that were taken? do i need a release to use in my promotion or advertising?

  10. says

    A lot of photographs have names or titles. I have an image that I took in 2006. In 2011 I took that image and did an edit on it. Later on I started a contract with a vender who wanted to make shirts with it. The title of the picture was “Woodwalker”
    In the past few days I have gotten a few e-mails stating that as of 09-27-2013 an organization has applied for a trademark for the term “Woodwalker”. Just curious if the Title or name of an image holds anything as far as the copyright goes. I’m not pursuing anything legally because it’s not that big of a deal to me. I just don’t want them to tell me and the vendor I’ve been with that we can’t produce our product.
    Regards,
    Dustin Maier

  11. says

    This was extremely helpful. I was confused about the “work-for-hire” clause and I was wondering if a wedding was considered work for hire. Thank you for clearing that up for me!

  12. says

    Planning on republishing a paragraph from your post on copyright law in a blog post. While I’ll attribute the paragraph, there does seem to be something mildly ironic about copying a paragraph of text without permission to a post on How To Use Google DMCA Takedown Requests To Attackh Counterfeiters and Copyright Infringers.

  13. Amanda says

    My son was photographed several months ago. The photographer has been contacted to use the photos in an advertisement for a Children’s Hospital. The photographer and I are to come up with a number of what we’d like to see in compensation. I have no idea where to start with that, but it’s a big hospital, pretty big ad campaign… And a huge proud mommy moment. Any advice?

  14. Betsy says

    Can you please address something I’m having great difficulty understanding? When is an image of the Flag able to be copyrighted and when isn’t it? Is it only when a flat image of a flag is use that it is not protected? Do the various shapes that a flag can make in the wind make the image diverse enough to claim copyright? This information is so hard to find online and it seems some sites are contradictory.

    Thank you.

  15. Kimberly says

    I have a photographer who has been on several movie shoots and signed a releases that the photos are the property of my movie now he will not give them to me…Help

  16. says

    Thanks for a great post Ken, while one can use any picture or any piece of art available if it is not copyrighted. But if you want to use such a picture then you must have the privilege for doing so. And one must seek help from a lawyer in such cases.

  17. Martha says

    This is to the one who asked whether pictures of his wife thes decor ´´art´´ belong to the photographer. Of course they do. They can charge whatever they want for your commercial use and if you use their images without permission you should and probably will be sued. You can take pictures of whatever you want if you want the pictures to belong to YOU but pictures are the photographer/videographer´s property if they take them. The content of art decor was paid for by the bride who gave the photographer the right to take pictures. If you want to retain rights to all captures of the ´´decor art´´ then you need to have a written agreement with every bride that the art can´t be photographed. That won´t be happening.

  18. says

    i have one client in particular who is making a big deal because she did an “intimate” photo shoot with me, she signed the contract which stated that i have complete rights and copyright and all that and that she consented to the photo shoot and everything listed in the above contract. well now her husband is saying HE doesnt want ANY photos from the shoot posted on my website even though i had said i would only post anonymous photos (photos not showing her face) and photos of only face. the way i worded it was (no intimate body parts) meaning no nude shots. i have quite a few photos without her face in them it is completely covered and she is not nude, all you see is her arms and legs and she has a lingerie top on that covers all intimate parts of her body. he is still saying he doesnt want them posted. i am getting aggravated because i dont want issues from anyone and they clearly signed the contract giving me all rights. do i IN FACT have all rights to these photos in order to use them on my business page on facebook or my website?

  19. Alison says

    Hi there

    Recently I found a for profit developer of travel guides, Buggl, was allowing the use of images sourced through a Google API licence in the creation of their travel guides. These are sold and the creator (who can use any image that comes up under Buggl’s image suggestion box) gets the credit and the money is split between Buggl and the creator.

    I enquired if this was legal and was told to grow up and stop being so bitter about the world. Surley this can’t be legal to use copyright images in this way?

  20. says

    Thanks for taking the time to discuss this, I feel strongly about it and love learning more on this topic. If possible, would you mind updating your blog with more information, it is extremely helpful for me

  21. says

    Wow, thank you so much for this wonderful post! I was needing to brush up a little on my copyright law after discovering someone had taken an image off of my site and tried to use it in a means of profit for themselves without my consent. This really helped me in better understanding how to handle the circumstance. Thank you, amazing job!

  22. says

    I am not a photographer, so I suppose it does not come naturally to me. I don’t understand why a photographer owns the rights to a photo of my family if I hire them to take the photo.

    A contractor that builds a deck on the back of my house does not own the deck just because he pushed a button on a nail gun.

    I’m sure there will be a whole bunch of folks chomping at the bit to scream about their rights and I’m not interested in hearing from them, I would like a logical explaination of why the photography community gets this legal protection.

    Thank You.

  23. RockEl says

    I know you do not have to answer this question and understand that you do not have to freely provide council or representation but I had a quick question.

    I work for a school. During school hours, I volunteered to take pictures of the graduating seniors, 8th grade promotion students and kindergarten graduates. This took 3 hours out of my day. All editing was done on my software (which I personally pay for), my equipment was used, and was done on my time. I did not charge for this service and did so freely. The students need to raise funds for their promotion ceremonies. With the funds raised, they are going to purchase the 8×10 portraits from Walmart.

    I did not charge for any service provided and did not ask for any compensation. The monies paid to Walmart were for the prints–alone.

    Parents requested additional prints of the portraits taken. I informed my supervisor of this and he told me to put together a package for this. I gave it to him. He requested time to look it over. This package was going to be offered to only the parents who inquired about additional prints and would be done after school hours. He stated that we could offer the package to the parents, HOWEVER that the photography class in the high school would put packages together and sell those images. They alone would profit from these sales. These students had NOTHING to do with the editing and creating of these pictures.

    When I denied him the ability to sell my prints for profit he stated that I must relinquish the photos to him as I was acting as a school employee. I told him that what I agreed to do was to take the pictures and give them the 8x10s, however, I did not give permission for them to print off my pictures and create packages to sell for their profit when they didn’t do any of the work and the work was done using my materials and my time after school.

    The pictures were taken as I was working as an employee under the previously mentioned understanding that these 8×10 photos would be given to the students and that the school could use the digital copies for presentations and things. No where was there any agreement that I would relinquish these photos and rights for reproduction to the school.

    My question is: Must I relinquish these photos and the right to reproduce them because the pictures were taken during school time? Like I stated, I have no problem giving them the photos and allowing them to be used digitally. However, I did not give them permission to reproduce the prints for package sales purposes.

  24. says

    Thank you for that very informative article! In the description of what constitutes a proper copyright notice, you wrote, “The second part notes the year when the work was first published.” Would you please address the definition of “first published”? For example, is posting a photograph (that you captured) to your personal Facebook page considered publication?

    Thank you kindly.

  25. Mike C. says

    Carolyn,

    Today I read this: http://arstechnica.com/tech-policy/2014/08/monkeys-selfie-at-center-of-copyright-brouhaha/

    In short: monkey grabs wildlife photographer’s camera, snaps a selfie, wikipedia gets a copy of the photo and releases it as public domain because (1) the photographer didn’t take the photograph and cannot claim copyright, and (2) the monkey cannot hold copyright which makes it public domain.

    It seems to me the question here is whether the monkey can hold copyright or not. What do you think?

    Regards,
    Mike

  26. adam andrews says

    Who owns the copyright on pictures that have been published in a defunct magazine [ceased publication ca. 1977]? How might I contact them to see if I can use the pictures?

    Also, how can I find out who owns the copyright on pictures that I receive via email from Google Groups ar a similar site?

    Thank you for reading this and have a great day!

  27. says

    I have a photo I would like to use on the cover of a book to be published. I found it on line but can’t remember where I got it. It was taken sometime in the early 1950′s. Any suggestions?

  28. John Pinkman says

    Thanks for very useful info!

    In your questions/answers you focus on the situation with professional photographers. However, there is another interesting situation when non-professionals are in question.

    Suppose, somebody took a photo of themselves. He/she didn’t give it much thought, and e-mailed/texted it to friends. They sent it to their friends. No copyright notices ever placed anywhere. Now, does the original author still have the copyright rights for this photo at this moment? What if someone from the circle of friends posted this photo online, and the original person who took it then regrets? Can the original person still claim copyright, and demand the photo removed from the web? It is legal to post such photos (when no copyright has been claimed while photos were sent)?

    This situation arises quite frequently when people take their selfies, and they later end up online.

    • says

      John, you may have noticed that questions aren’t being answered here. I don’t know why, except maybe they don’t want the blog to become a place for handing out free legal advice. I’m not an attorney, but I can tell you that the original author/photographer retains the copyright on any selfies, even if he or she did not put a copyright notice/watermark on the image. Exceptions are as noted above, such as work-for-hire. Having the photo shared, copied from friend to friend, does not change the fact that the original author still holds copyright to it. If the photo is used in a way that the author doesn’t want it to be used, he or she has the right to request it be removed. However, unless the use is damaging in some way, pursuing removal legally might not be financially worthwhile. Sometimes, however, a simple letter from an attorney is enough to get a photo removed if the request by the author is ignored.

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