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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.

It’s all very interesting (and complicated to boot). So, let me get this straight… a blogger can use ANY pictures they find online (even with a big “c” logo on it) as long as the use is defined as ‘fair use’? But the definition if ‘fair use’ seems to be rather vague and arbitrary I’m still not sure if plastering a photo you find on online on your blog post is considered ‘fair use’ or not…

No, you absolutely cannot use that photo as fair use. As Carolyn stated “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.” I don’t think that a blog is that beneficial to society, nor does it serve a higher purpose. Sadly that applies to both of our blogs ;)
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You can use the photo, if it is a Creative Commons licensed image, and even there it all depends on the type of CC license. Look into that further on the CC website. I personally hate Creative Commons and will never license my images this way.
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If you make money with your blog, you have a commercial website and therefore you’d need to get permission from the creator of the work in order to use it. I would usually charge someone for use of my photos on a commercial or editorial blog. However, in many cases when contacted about my images being used on blogs, I will grant permission under specific guidelines. It costs me a lot of money to do the photography I do, and it wouldn’t be fair to me if someone else profits from my work with no compensation for me. Asking permission is always the best way to go, just because you find images on FLICKR or any other website does not mean they are free.
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I’m not a lawyer, but I’d say ask before using. It’s the right thing to do and good Karma :)

Great post and interview Ken. I have been having many of these questions that were covered in her, some great info!

Informative post Ken – thanks for sharing. It has answered many questions and created new ones! Looking forward to round 2

Hi Ken,

This interview was very useful – I found myself in two situations where two prominent newspapers had stolen my content and pictures because ‘they found it online and assumed it was okay to use’. Anyway, I contacted them and asked for a compensation and a credit. Being a newspaper all they could do is publish a clarification in the next issue but the damage had been done. Anyway, I received an apology and some (meager) compensation from the editor and I didn’t pursue it further.

I’m looking forward to more, its a nice series

Well done for this post. I’ve just had some huge problems with people fleecing my images from a Blog site I sell to. I am lucky in that I have an agent who chases them up and so I normally win in the end.
For bloggers I recommend DigiMarc. Not any good if you’re selling to magazines as it degrades the images a lot, but for blog and web it’s top banana.

This is really useful, Ken. A year ago, while I was traveling in Africa, the Huffington Post stole a picture from my site (they attributed it, but didn’t ask permission), and from there, Blackbook, Refinery29 and even Perez Hilton used it from their site–none of whom even bothered to ask me for permission. I wondered what my rights were in that case, as the Internet muddles things a bit. Glad you shed some light on this confusing issue.

art lover

Great interview. Congratulations and thanks to you and Carolyn for opening our eyes as to what photographers are faced with.

Thank you very much for this post, it does provide me with some cool relief!!!

Hey Ken,

So she said in the interview that someone hired by another photographer for an event still owns the copyright?

So how does that work if I need a second shooter for a wedding under my brand? I need to get them to sign something that passes me the rights?

So glad that Carolyn was able to help out so many people with this in depth look at Photography, Copyright, and the Law. It seems like a lot of people are learning a lot, I know I did!
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Mike, since I’m not a lawyer and I have never hired a second shooter on my shoots, I would have to say that Carolyn would be the person to consult. I’d hate to give you the wrong information. It’s always a good thing to have a signed contract with anyone who produces photography for you. In order to get the proper wording, you might want to talk with Carolyn. Hope that helps.

Hello Ken, guys!

Thanks for sharing. Very informative interview!

Waiting for a part 2

Best Regards,
Photo Editor

Great post. This is a very rare blog. The knowledge your sharing is awesome… THANKS

This is very interesting interview, Thanks for posting such useful information and providing us knowledge about what rights does visitors and website owners have and how essential is the proper utilization of it. Thanks once again.

AL

If I purchase the original – negative or slide – who owns the copyright?

Where is copyright part 2? Part 1 was informative and helpful. Thanks.

Thanks folks, the big credit here goes to Carolyn!
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Part 2 should be ready in a few weeks… it’s been a very busy time for me and I want to make sure that all the information is up to date and accurate. Stay tuned! :)

This is a great reminder of intellectual property law. The things we create with our eyes and minds are valuable. As an attorney, the only thing I have to ‘sell’ are my thoughts and words. Of course they have been made valuable by years of study and experience, but that is all I have. I don’t sell widgets or any tangible things.

Ken’s incredible photography is a product of his creative mind and talented eye combined with experience and equipment. When someone purchases a print from Ken, they are not purchasing the canvas, rather the combination of his skills as reflected in his art displayed on canvas or some other medium.

When a person uses an image without permission, they have stolen that intellectual property. The fact that they only stole the intellectual property and not the canvas doesn’t excuse the theft.

[...] Several months ago I ran into this primer called Photography, Copyright, and the Law written by Ken Kaminesky’s blog. This excerpt from the post answers the question of what to do when you are infringed [...]

I have had images stolen off my http://www.facebook.com/AllanJohnstonPhotography by a Greek fashion designer, what really got me was the dirty letter that came after I confronted them about it. In New Zealand we do not have to register copyright, its automatic by law.
The law in the USA is a worry for me even tho Im a kiwi shooter as I sell into the USA all the time.

We would not be having this talk if more photographers had voiced and understood the changes to copyright law and Creative Commons license was past by govt.

In some way I feel we as photographers are to blame for not standing up to the Govt and now have to defend our work.

However a little light was turned on the other day and the courts ruled on the artist / copyright issue over Jim Krantz and the artist just taking and doing what he wanted, the artist has been held to account.

I found this very interesting thank you.

[...] E. Wright the photoattorney.com and published on Ken Kaminesky’s blog (Read the entire post here). This excerpt from the post answers the question of what to do when you are infringed upon: Q: [...]

[...] E. Wright el photoattorney.com y publicado en el blog de Ken Kaminesky de (Leer el post completo aquí). Este extracto del mensaje responde a la pregunta de qué hacer cuando se infringen las [...]

[...] Photography, Copyright, and the Law В» Ken Kaminesky Travel … COPYRIGHT – Part 1 In part one of a multi part series on Photographer's Copyright, I'll be talking with Carolyn E. … [...]

Great information on photo,copyrights and the law. I look forward to the rest of this series. Thanks for publishing it, Ken.

Your website was tweeted by a friend last night. Decided I’d take a look. Best decision ever.

Hi! I’m at work surfing around your blog from my new iphone! Just wanted to say I love reading your blog and look forward to all your posts! Keep up the superb work!

Sara

Is there any consensus as to whether one should copyright the photographer’s name, or the name of the business under which he has incorporated?

Very good very impressive performance. Many prople are paying attension to your article, I am just the one. I will recommend it to anyone.

Hilary Porter

I have a question about use of a photo for a website.

If I find a great photo from a phone application that would be used for my phones’ background and download it and use it as a background for a website, is that copyright infringement? The photo has no copyright label, nor a name attached to it, just a label like “background 18675″. It is free to download and there are no warnings about using it, nor do I have to pay for the download of the photo. If the photographer has given permission to the company that published it for their app, no title or author, does that mean that a photographer could try to sue me anyway?

Hilary, I would not use it and take a chance. You could get sued since you do not have permission.

I have a few questions regarding the legalities of interviewing a photographer. I think I will drop you an email if that’s OK. Thanks :) Martin

karolina

hi i have a question !!! when i go to a frends wedding as a guest , i do pictures for free, and she had hire a free lance photgrapher can he sue me for copyrights. is that even posible? i did pics and share them on FB. also before sharing i asked a bride if i can publish it and she agreed.
ps. i used my own logo on it .

AJ Severe

Hello,

My wife is a Wedding Event Designer and she does much of the decor of the wedding, from flowers to linens, table settings etc… She as the Artist has lately run into some issues with the Hired Photographer’s and Videographer’s of the bride.

Being that this is her first year in Chicago she wanted to capture as much work as possible. So, issue at hand is this… She as the Artist of the event has asked for pictures from the Photographer and video if possible from the Videographer. The Photographer has not replied, however, the Videographer did and requested $3,000 for a 2 minute video. My wife is friend’s with the Bride who hired the Videographer, the bride gave my wife a copy of her video (complete final video). My wife is hesitant to post it in her website fearing that she may get sued, even though she is willing to give credit to the person that videotaped it. Can she or will she get sued?

Other Question we both have is…
Bride hires the following entities (Event Designer, Photographer)

Photographer snaps photos of the Decor which is the ART created by my wife; Can the photographer display this as HIS work?
Can my wife use photos given by the bride taken by the photographer of HER WORK without fear of being sued?

Thank you kindly,

AJ

I cannot answer any legal questions since I am not qualified.
Please consult a copyright attorney in your area if you need advice.

Thanks!

Sanjay

Do you have a copyright attorney in Canada? Who is it?

Daniel

If a photographer were to take a picture of a person in a public place, and that person knew that a picture was being taken of them. Could the photographer sell the picture to the public without consent of the person in the photo?

I have a quick question. I work in the Equine Industry and they have photographers, professional and rookies alike, taking pictures liberally for magazines, publications, and personal use. They post some of these pictures on facebook with their copyright logo and name on the pictures to protect their work. My question is, how can a photographer copyright a picture of a horse that they don’t own? They never get permission from the owners to take pictures so how are they getting away with protecting pictures of other peoples property? I can’t go to McDonalds or Burger King and take pictures of the Big Mac or The Whopper and copyright it, can I?

I just want to SAY everyone know I have KNOWN much useful information from your site for quite a few months now. Thank you.

Thank you for all the information that you have here on your site. It answered most of the questions I had. There is one other I am not sure about though. Since my son had partial custody of my granddaughter at the time the photos were taken. She was the custodial parent at the time. We were out on his weekend when I took the pictures. I am a Professional Photographer just starting a business. I have three photos of my granddaughter on my website to show what I can do. I got a Cease and Desist from her attorney to take down the photos now. Since my son gave up all rights last month. Do I have to do this since the photos were taken in March and around October 2012? Do I still have the rights to the photos? Anything would help at this time.

Jane Johnson

I took a picture of a woman on the street in Paris that just looked so portrayed the European way of dressing and beauty. I didn’t ask permission to photograph her. My question is, “Can I use that on a website like Fan Art or in my own poetry writings without permission from her? I don’t know, didn’t know her, just the presence she conveyed.

Gene Beley

What can we do about websites like Foter.com and Flickr stealing our photos? I allowed WBUR in Boston to use our historic 1968 Johnny Cash concert photos on a one time basis for their website, after they did an interview with me about going to Folsom with John and June. WBUR Radio, NPR’s flagship station, may have innocently agreed to a Creative Commons license, because they seem to be the source that started this free download on these free download websites. This is a very threatening development I see for professional photographers in the World Wide Web age. I’m sure all of you know how difficult it is to talk to a human with a company owned by Yahoo.com or any other big Internet organization (Google is the worst). I’m contacting WBUR management because I think they will be as shocked as me, and may be able to do more with their media clout than even a good attorney like Carolyn E Wright. Big Dilemna! Most of these websites depend on the fact photographers don’t have hundreds of thousands of dollars to spend on attorneys or the staff of legal beagles like they do.

Great write up Ken, I was just on Carolyn’s site before coming over here. I really appreciate you both taking the time to help everyone out with explaining these issues.

Cheers,
Dave

Chris Pendergast

I am came across your website.Thanks!!

I am a photographer,and have a question about copyright.

If I take a picture of a sign, a barn, a an old rundown garage.

Am I ok to sell it as ART without consequenses?

Thanks
Chris

Gene Beley

John Davidow, who runs the website at WBUR Radio in Boston, just called me (Feb. 6, 2013) and said the station has gotten them removed from their website, Flickr and foto.com As suspected, they were unaware of the problem. Thank you, John, for your prompt action!

Julie

I took a nice picture of a friend, and he is now using that shot for his business cards and on his website (he is a photographer). I was never so much as asked if he could use this photo, and feel that I am entitled to at least be credited and probably some sort of compensation for this. I would really like to try to resolve this amacably. What should I do?

Gene Beley

Julie, go to coffee with your friend and ask him why he didn’t ask you for your permission before injecting YOUR photo of him into his business card, which is now in the advertisement scheme of things. I would also ask him to put under the photo of him on his business cards, “Copyright by Julie —-, 200__”. I’m not an attorney, but this advice is based on experience. Diplomacy first, then decide if you bring out the big stick. Give him a little education on copyright laws available on this website and just reading the Copyright office’s website. To me, your problem sounds very small, because there’s not much potential for any big profit. Chances are you value your friendship more than using a big stick to correct the problem. As Suzy Orman is fond of saying, ” “People first, then money, then things.”

Thanks so much for the great information! I have had the same image I created show up in several places over the last few years. I have now decided to register it.

Ryan Hughes

I have had several architectural photos published online recently, where the website had permission to use the photos. However, in two instances, the website definitely edited my photos without asking permission, and then put my name next to them (which is embarrassing, given the horrible editing). In one case, they used some high-contrast filter to make my photos look like their Instagram-y site, in another, they photoshopped out people (poorly), then drastically altered the levels? Is this legal? Should I respond and let them know I am not pleased, or let it go? Anyone else deal with this???

I found this article incredibly interesting and enlightening and I wish to thank you for posting this. However, I do see a huge amount of flaws in your logic when it comes to “Fair Use”. Educational purposes is a subjective thing. I noticed for example, you quickly brushed aside blogs as being incapable of providing education, when in fact they do, and your blog did/does. How can you or any artist decide what is “good” education or “bad” education when as I understand the law, there is no such thing as a “bad” education?

Art has always been subject to criticism, and therefore if we create art and post it online, it is now open to criticism, therefore, we run the risk of our works being used under the “Fair Use” clause. I found your condescending attitude towards blogs using our photos as elitist and extremely out of touch with reality.

Sorry Baby…
Muuuah!
Belladonna Del Rio

Haim

Hi,
Thanks for the super-info-rich article.

Q: Do I have the right to use the image that I took of a firetruck or police car (without people) for commercial use (e.g. on a card game)?

So very helpful-thank you!

Silvia Tomarchio

if one photographer takes the images and then another edits them without permission can they put their name on it to post? this woman is driving me mad lol
I don’t believe you should do that unless you have full permission and seriously i would never allow anyone to edit my images

Thank you for your good article,and look forward to your better work.

Great information about copyright protection of our images.

Good stuff…
Thanks
Connie

Thanks Ken, just starting to go public with my work after 20 yrs. I am thankful for people like you that share great info. I will be a loyal follower.

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

Caroline Cranfield

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?

Gene Beley

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!

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?

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

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.

WOW…. excellent and interesting material here. So useful for me. Thanks for publishing. Cosmetic dentistry manhattan

Noir

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

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!

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?

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

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!

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.

Amanda

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?

Betsy

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.

Kimberly

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

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.

Martha

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.

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?

Alison

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?

thanks for such a great information.

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

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!

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.

RockEl

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.

Was examining around . I really like your information. Do record even more of this concept ok. Thank you

I observe there are several junk posts on this web site. You happen to be gonna clean it up. Maybe I can help you to carry through?

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.

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