ASMP Copyright FAQ

Q: How long is my registration valid?

A: In most cases, your life plus 70 years. There are, however, a few important exceptions.

The Cornell Copyright Information Center provides an exhaustive list of common and special situations on this page.

Q: Do I have to renew my copyright?

A: No. Works created on or after Jan. 1, 1978, are not subject to renewal registration. For works published or registered prior to 1978, renewal registration is optional, but advised after 28 years. See Circular 15, “Renewal of Copyright”.

Q: What is “Fair Use?”

A: Although many people have their own notions about “fair use” of an image, there is a specific statutory definition restricting this category “to purposes such as parody, criticism, comment, news reporting, education (including the distribution of multiple copies for classroom use), scholarship, or research.” A good resource on this topic can be found at Stanford University.

The most important thing to know about Fair Use is that it is only determined by a Court examining all the facts on a case-by-case basis. Here is a summary of precedent-setting cases in the U.S.

Q: Can I appeal the Copyright Office’s decision?

A: Yes. The tutorial section “If you are turned down” discusses the appeal process.

Q: Suppose that I have a contract with a client stating that no rights to my work are granted until I am paid in full, and this client publishes my photos before I have been paid. Can I sue for breach of contract, or is it a copyright violation? Or don’t I have a case at all?

A: Generally, if your paperwork clearly and consistently states that no rights are granted until and unless payment has been received in full, you probably could sue for copyright infringement, rather than breach of contract.

Q: How close is close when it comes to infringing on another photographer’s copyrighted image? If the best shot of a scene is from the same spot, at about the same time of day, and under the same conditions as another, already-copyrighted image, is it an infringement to take a similar shot and market this commercially?

A: The key word in your question is “similar.” To prove copyright infringement, a plaintiff would have to show that a new work constitutes “actionable copying” by being “substantially similar.”

For example, a recent case in Louisiana concerned a photographer, well known for a certain photo of a famous view of New Orleans’ Jackson Square, who sued an artist selling a view of the same site taken from almost the same spot. The two photos have many similarities: Both were taken at the same time of day. Both incorporate mist. Both have banana leaves framing the photo.

But one has rain puddles on the ground while the other does not. In one photograph, the elements are centered, while in the other they are off-center. The St. Louis Cathedral is more prominent in one than in the other. The depth of field in one photograph is focused on the gate to the Square, while in the other the focus is further back. The lighting and positioning of elements in each image are slightly different.

To the judge, the original seemed to be artistic, while the second did not achieve the same level of artistry. The judge ruled that no infringement had taken place — that while the photos were similar (even framed similarly), and even though the artist admitted he had seen the photographer’s original work before he photographed his, they were not “substantially similar.” If you are curious, you can read the complete ruling.

Additional information on the question of substantial similarity, written by attorney Andrew Berger, is freely available on the Editorial Photographers web site.

Q: : When I submitted my images to a stock agency, I retained the copyright. Yet when I recently saw one of my images on a web page, it had the stock agency’s name next to the copyright symbol. What gives?

A: If you retained the copyright, as you should have, then the situation here is that the agency is protecting the digital file of the photo, which is displayed on the web page you saw. The copyright to the original photo is not what is being claimed by this copyright notice. If you have questions, concerns or even suspicions that the stock agency might have overstepped its legal and contractual bounds — if, for example, your agency agreement limited the use of your images to certain media types, of which this is not one — contact the stock agency to inquire further.

Q: I sold a print of one of my images. Does that mean I sold the copyright to it, too?

A: Not unless you agreed to, or the purchaser demanded a transfer of the copyright as a part of the deal. The Copyright Office states: “Mere ownership … does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.”

Q: I gave my work a specific title. I have now seen another work, created after mine, that is using the same title. Is this an infringement of my copyright?

A: No. Titles, names, short phrases, ideas and slogans cannot be copyrighted.

Q: It can take as long as eight months to receive a certificate of registration. What if there is infringement of my copyright during that time? Do I lose my ability to sue for statutory damages or ask for the other side to pay my court costs?

A: In the words of the Copyright Office: “A copyright registration is effective on the date that all the required elements (application, fee and deposit) are received in acceptable form in the Copyright Office, regardless of the length of time it takes the Copyright Office to process the application and mail the certificate of registration.”

Q: If I do work for a large company, and make a licensing arrangement with them, can the company turn around and grant usage for the photos to one of their subsidiaries, without added compensation to me? Is this a copyright violation?

A: Trying to resolve this issue could be long, nasty and expensive. The best way to avoid such situations is to design your contracts and licensing agreements to include the granting of specific and thorough terms, as well as specifying any usage that you wish to exclude. Identify the specifics of all usage you are granting, including territory, duration, degree of exclusivity, etc. Before you sign, make it clear in the document exactly who is receiving the license, whether they can or cannot assign their rights, and to whom (if anyone) they can assign them. Consult the ASMP Licensing Guide pages and the PLUS website for examples.

Q: If I am photographing a public building, am I violating the copyright of the architect?

A: Maybe. It depends on what you will be doing with the image (see Fair Use, above) as well as on specifics about the building and the architect. You may also wish to check out a list of buildings and other subjects with special clearance and trademark issues at the PACA web site.

Q: Long ago, I transferred my copyright to a publisher. Now I wish I had it back. Is there anything I can do?

A: Sometimes there is a way. The Copyright Act provides for recapture of rights after 56 years for pre-1978 copyrights and after 35 years for newer copyrights. But we should warn you that the rules are quite technical and full of special cases; you will want professional advice. For starters, you can read Copyright Termination: How Authors (and Their Heirs) Can Recapture Their Pre-1978 Copyrights on the CopyLaw.com website.

Q: My image has not been published. Can I still put a copyright notice on it?

A: You don’t need to — as soon as your image was fixed in a tangible medium, it was automatically protected by copyright, whether published or not — but it can’t hurt to let others know. Including a copyright notice may also have some legal benefits by putting the world on notice that the material is copyrighted. The standard format applies — © followed by date, followed by copyright holder’s name — although another way of noting that it is not a published work is to write the copyright notice using the following format: “Unpublished work (c) year + copyright holder.”

Q: I’ve sent in an application to register some of my unpublished work. Do I have to wait until I receive the certificate of registration before I am allowed to publish it?

A: No. You do not have to receive your certificate of registration before you publish your work.

Q: I’m self-publishing a small run of a book with some recent images. They’re probably not very commercial, I don’t expect the book to sell well (or at all) and I don’t feel like spending the time or money to copyright them. What is the least I can do?

A: The instant you made each photograph, it received immediate copyright protection. If you wish, you could just put a copyright notice at the front of the book and call it a day, although you don’t even have to do that. You don’t have to register all or any of the images, but if you don’t, you could run into trouble in the future if someone “borrows” and uses one of your photos without your permission.

There is one thing you must do, however: As owner of the copyright of a work published in the United States, you have a legal obligation to deposit with the Copyright Office two (2) complete copies of the best edition of the published work, within three months of publication. The Library of Congress and the Copyright Office consider this mandatory, and they can fine you if this is not done. Submitting these copies does not start the copyright registration process, but it could if you also submit the necessary copyright registration forms and fees along with the deposit.

Q: I have a new client — a potentially important, lucrative addition to my earnings. I’ve just learned that, for the price I’m being paid, the client wants to own the copyright to my images. I am, of course, resisting this, and have tried to steer them towards a licensing agreement, but they’re not budging. What can I do?

A: It is very clear where ASMP stands on this issue: The photographer owns all of the rights and only licenses specifically negotiated usage rights to his/her clients. Ideally, each additional level of usage is granted to the client only upon additional compensation being paid to the photographer. Unless the amount of money the client is offering is so enormous as to be more than what you could possibly ever earn from future licensing — thus making if financially acceptable — we do not support the sale of copyright.

An alternative for widespread image use that still lets you retain the copyright is to offer the client an unlimited license and an agreement that you will not license your work for any competing uses or companies. That way, they get all the freedom they want, and you get to keep the copyright.

You need to sit down with the client and “talk the talk” — but, if you feel strongly about this issue, you also have to be prepared to “walk the walk” … away from the negotiating table. If the latter occurs you should not look back, or kick yourself knowing that somebody else will jump at the chance to have that job. To keep your professional integrity intact, you have to take the position that you can’t be in business with anyone who will so knowingly and willingly place you in such a bad position. How will you be able to trust the client in other matters that will be sure to arise with subsequent dealings? It hurts to say no to any attractive assignment — or, at times, to any assignment. But, in the long run, it often hurts more to say yes. With these points in mind, you should return to your client to discuss the matter again, with the hope that your reasoning will work this time.

Q: I’m putting together a web page to show and promote my work and business. Does putting images up on a web page constitute publication for copyright purposes?

A: What constitutes “publication” for copyright purposes is a difficult question, with very little practical guidance for those things that fall into the vast gray area. Marybeth Peters, the Register of Copyrights, has publicly stated on multiple occasions that her opinion, and the position of her office, is that images uploaded onto a web site in an area that is available to the public for access, constitutes publication of the work. Assuming that this area of your web site isn’t password-protected or otherwise restricted, it is probably safe to take the position that those photographs are published.

There is a also second question to consider: Were any of these images previously published before appearing on your web site (and if so, when) or is this the first publication for all of this work? If none of your images were ever published before, you can register the whole collection in a group registration. If some of the images have been previously published, your best bet is most likely to register the unpublished work as a group, and to deal with the others separately, perhaps individually or perhaps in another group or groups. This gets confusing, and you may want to visit a copyright attorney for guidance in this matter. Further information about registering online works can be found in the Copyright Office’s Circular 66. You will also want to read the information on our Group Registration tutorial section.

Q: How much money can I sue for in a civil copyright lawsuit?

A: If the lawsuit is for a work that has been registered at the Copyright Office, the damages can be quite stiff. A copyright owner may elect to recover statutory damages under Section 504 even if actual damages (such as lost profits) can’t be proved. Statutory damages are amounts set by law. A copyright owner whose work was registered with the U.S. Copyright Office before the infringement (or within three months of publication) can elect to choose statutory damages or actual damages.

Actual damages (also known as compensatory damages) are the dollar amount of any demonstrable loss suffered because of the infringement.

Most copyright owners will choose statutory over actual damages because there is less to prove in order to obtain payment. Statutory damages are set by law at a minimum of $750 and a maximum of $30,000 per infringement, “as the court considers just.” If, for example, the court finds that a defendant infringed on ten photographs with registered copyrights, he may be facing a $300,000 judgment. If the you can prove the infringement was committed willfully, the court has the discretion to increase the damages up to $150,000 per work. Further, the court may determine that the losing party must pay the winner’s costs and attorneys’ fees, under Section 505. On the other hand, if the infringer can prove he was not aware and had no reason to believe the act was an infringement, the court may reduce the award down to $200.

Q: Can two or more people own the copyright to a single work?

A: Yes. It creates joint ownership of the copyright, which can produce problems down the road. Each owner is an equal partner and might be able to make independent negotiations for licensing and might be able to sell or assign their rights independently of the other owner.

Q: Someone has linked to one of my photos on their web site. Is this legal?

A: There are basically two ways in which your photos may appear on someone else’s web site. The first is by someone else actually copying your image file and putting it on their server for display on another site. In most cases, this is blatant copyright infringement, with or without a credit line. In some cases, the alleged infringer might claim this to be fair use, and it may very well be. But it will be up to you to contact them and to inform them that they are violating your copyright.

In the second case, the image file is actually not being copied to another server; someone else’s browser is just being pointed to your server so that the image appears to come from their page. This situation is a little more problematic. Most copyright laws were written before the Internet. Until legislation catches up to the technology, we have to rely on case law for direction, and there isn’t much that exists in this area.

Sample terms that can be used on a web site generally specify the following: “… the images, text and coding on these pages may not be copied to another computer, transmitted, published, reproduced, stored, manipulated, projected, or altered in any way, including and without limitation to any digitization or synthesizing of the images, alone or with any other material, by use of a computer or other electronic means, or any other method or means now or hereafter known, without permission of the creator.”

If you use these terms, infringers may be held liable for “contributory infringement.” A contributory infringer isn’t controlling any copying, but has taken actions solely to cause other people to make allegedly illicit copies for themselves. (This was part of the Napster suit, for example).

If the link showing your photo on someone else’s site is hidden, they are probably violating your copyright. If there is only a link to your photo on another site and a user has to click on this link to view your image, then your copyright has probably not been infringed.

Your next step would be to contact the owner of the page and the Internet host of the page to alert them to the situation and to request that your image, or the link, be removed. Go to our Enforcing Your Rights page for more information.

Q: What if an American photographer gets ripped off by an overseas publisher? What about foreign photographers operating in the U.S. market? Which country’s laws apply?

A: Lawsuits for copyright infringement are always filed in the nation where the infringement occurs. Each nation that has signed the Berne Convention promises to protect the rights of others as well as it protects its own citizens. However, each nation has its own procedures for filing suit and its own rules that govern the damages that might be awarded. (If you are infringed in another country, you will certainly need a local lawyer.) One of the major differences between procedures in the U.S. and other nations has to do with registration.

Very few nations require registration as a condition of suing for infringement; if they have a registration system, it’s designed mainly to support the national licensing agency. For U.S. citizens, this means that satisfying American law is usually all that’s needed to be eligible to file a claim in another country.

Non-U.S. citizens are allowed to register their copyrights in the U.S., and, if they regularly market their photos to U.S. publishers, they probably should make the effort to do so. Whether their copyrights are registered or not, foreign nationals are able (under the Berne Convention) to file infringement suits in U.S. courts. But if they have not registered, they can seek only actual damages. If they have registered, they can seek statutory damages, which reduces their burden of proof.

My thanks to the ASMP for their permission to reprint this valuable information on my website.