COPYRIGHT FACTS EVERY PHOTOGRAPHER SHOULD KNOW

One of the most critical areas of knowledge for photographers, and all artists, actually, is the matter of copyright. While United States copyright law has generally struggled to keep up with changes in technology, there are still some very important issues that photographers need to remember regarding every photograph they take.

1. Federal law stipulates that copyright covers any ORIGINAL artistic work, regardless of media, that exists in fixed, tangible form. For many years, the rule regarding photographs was that he who owned the negative or photo plate held the copyright. Current law, however, allows for the possibility that a photograph may not have a negative or plate and so defines the person who owns the photograph when taken as the owner of the copyright. As such, photographers who are employees of an organization, such as a newspaper or magazine, DO NOT own the copyright to the photographs they take on the job because the corporation is the owner of the physical photograph.
   
   
2. Ideas and concepts for future photographs are NOT subject to copyright and are wholly unprotected. If a photographer is sitting in a restaurant discussing a future project and another photographer overhears the planning, there is nothing to keep the listening photographer from shooting the exact same project. Planning items such as storyboard drawings are copyrighted, but the concept is not.
   
   
3. The photograph must have original elements in order to be copyrighted. This is a really sticky area of copyright law that generally applies to photographs of well-known landmarks or other frequently-photographed places. The most common example would be a picture of the Statue of Liberty, which cannot be copyrighted on its own. The prevailing wisdom is that it has already been photographed from every possible angle in every possibly setting since its construction. The same would apply to the White House, Congress, and Mount Rushmore. However, if one were to take a picture of new immigrants at the base of the Statue of Liberty, the photograph would be subject to copyright by the photographer.
   
   
4. Copyright is applied to a photograph the moment the picture is taken. In the case of digital photography, the image doesn't even have to leave the camera. The moment the image is preserved, it is copyrighted. One does not need to register, nor publish, nor send a copy of the image via certified mail. Such practices are no longer necessary and an extravagant waste of money.
   
   
5. Images absolutely, positively, cannot be placed on the internet anywhere without license from the photographer. This includes, but is not limited to, sites such as MySpace, Flickr, Photobucket, and Facebook. Understand, this license may be verbal, but photographers who wish to carefully guard their images will want to make any license part of the release the model signs at the time the pictures are taken.
   
   
6. Photographers do not have to hold a release from any subject to exhibit, display, or cause to be shown any photograph to which the photographer solely holds the photograph so long as doing so does not maliciously cause harm or intentionally defame any subject in the photograph. However, photographers MUST have a release in order to sell a photograph in which another person is subject in a non-editorial fashion.
   
   This matter gets really sticky quite quickly because the definition of editorial is quite vague and subject to broad interpretation. Most frequently, this rule comes into play when a photographer takes a picture at a public event and then sells the picture to a newspaper or a magazine. A person inadvertently caught in such a picture does not have to sign a release because their participation is considered editorial by virtue of the event being public. There is no presumption of privacy any time a person is attending a public event such as a ballgame or concert, nor when an individual is on public property, such as a sidewalk.
   
   
7. Privacy trumps copyright. This is a critical area for photographers and, quite honestly, is extremely grey as to what may or may not be allowable. Courts generally consider the question of whether there is any presumption of privacy in a particular situation. As such, standing outside someone's home and taking pictures of them through the window would likely be considered an invasion of privacy and, copyright not withstanding, the photographer could be ordered to destroy the photograph. This is why photographers so often earn the ire of celebrities. Exactly where the line of privacy resides is open to considerable interpretation and, more often that not, requires some form of court action to provide definition.
   
   
8. Changing or altering items in a photograph, through any means and by any degree, does NOT constitute a new work and is copyright infringement. Altered copies of copyright works are called derivative art and the sole right to create such lies with the copyright holder. The test in this matter is the difference between an idea, which cannot be copyrighted, and the expression of an idea, which is copyrighted.
   
   This area has yet to see a good, definitive legal challenge in regard to photography. With items such as paintings and music, the copyright holder can prove infringement simply by proving that a) their work preceded the offending work, and that b) the person creating the offending piece had reasonable access to the original to facilitate theft. Does this mean that should a photographer shoot the same model, in the same location, utilizing the same pose as a previous photographer that the second photographer is guilty of copyright infringement? That matter is certainly arguable. The easy solution is for photographers to exercise creativity and not copy other's work.
   
   
9. The Digital Millenium Copyright Act of 1998 allows online service providers to limit their liability on material placed on their servers. What this means is that if a photographer places a photo on Flickr, or Photobucket, or some other photo service, and someone steals the photo from that site, the site has specific obligations in addressing that grievance, but may not be liable for the theft. Specifically, the service provider must designate an agent to receive claims of copyright infringement, and upon receiving such a complaint through that agent must remove the image, initiate appropriate restitution, and handle any counter-complaint that may be made. Handling infringement claims in such a matter may severely reduce the legal costs.
   
   
10. Copyright of photographs owned by individuals are effective for the life of the photographer, but 50 years beyond. This is in contrast to images owned by a corporation, in which case the copyright exists only for 50 years following the last calendar month of the year in which the photograph was taken. This is a fairly recent change in copyright law, dramatically lengthening copyright ownership for photographers and their surviving families. This change preserves the long-term value of photographs, making them estate assets worthy of serious investment. More people are likely to invest in photography as art because of this protection, but makes it all the more critical that the photographer diligently protect that copyright throughout one's life.

While copyright law is considerably more complex than the these ten points, they provide a good, basic level of understanding. Consider them a starting point. Should more detailed questions arise, consult an attorney who specializes in copyright and intellectual property law.