Copyright for Photographers

What is copyright?Copyright is a legal concept, provided in most countries, that gives artists the exclusive right to publish, adapt and license their work for financial benefit.

Why has copyright?Copyright is designed for you — the artist. Without copyright, people would be free to use your artistic work without payment, and you’d have little financial incentive to create art.With copyright, someone who wants to commercially use your work has to get your permission first. They have to license your work, and perhaps pay you real money. Now you can be a “professional” photographer, and buy a nicer camera.

How do I get copyright?Automatically. The law protects your artwork upon mere creation.

Do I have to register, publish, or add a notice?No. Those were requirements in the U.S. before 1976 but they were omitted to conform with the Berne Convention.  But, registering your photos with the copyright office gives you legal benefits...see below.

Who owns the copyright?The person who presses the shutter-release automatically owns the copyright to the photograph.

The one exception is when the the photographer is a full-time employee, then the employer owns the copyright as a “work made for hire.”This does not apply to part-time, volunteer, or contract (e.g. wedding) photographers. 
Work For Hire In order for the employer to hire you and keep the copyright on the photos you create, you must be an employee.  This means the employer must pay benefits and give assignments.  Additionally, in California, the employer must pay workers compensation and unemployment benefits.

Freelance Photography You own the copyright but grant the publication one-time usage rights, or one time usage rights for a specified period of time. You may also sell the copyright (hopefully for a large amount of money).  A photographer owns the copyright unless they explicitly sign it away in writing.

Models (and other people in a photo) do not own copyright; they own their likeness, as publicity rights. Likewise, property owners haveproperty rights.What rights do I get?As a copyright owner, you control who can copy, adapt, license and publicly display your photos, particularly for profit.As a photographer, you get to be the only person to:

1. make and sell copies of your photos;

1. create other art using your photos, such as paintings or Photoshop variations;

1. publish your photos on the Internet and in books;

1. license usage of your photos to other people in exchange for money.

In a sense, copyright doesn’t give you anything, it just takes abilities away from other people, saying what they can’t do. Thus it’s an “exclusionary right” or a “negative right.”

What do I not get?Copyright is not an absolute right; there are over 20 exclusions, limitations and exceptions. These include:

• Facts and unoriginal work

• Ideas

• Duration

• Fair use, for public benefit or non-profit

Copyright does not apply to facts, since these are universal not individual. Factual dates and figures can’t be copyrighted, but text expressing those facts may be. Similarly, works with no originality or creativity (such as “slavish copying”) cannot gain copyright.Copyright covers form but not idea. It applies to the tangible artistic result — known as the “form of material expression” — not the underlying concept. So your photograph has copyright, but not the idea or viewpoint behind it. For example, if you take a great photo of some natural thing, such as a beach or Yosemite Valley, you can’t stop other people from taking the same photo.Many artworks are no longer protected by copyright (they are in the “public domain”) and are free for everyone to use. This includes artworks published before 1923; copyrights that have expired (complex); and public property such as written laws.Copyright can expire. In the U.S., the duration is lifetime plus 70 years.Copyright does not prevent resale. In the U.S., after the “first sale”, the owner can resell a work as-is.Fair use is permitted. This is for purposes that benefit the public interest or that are private, non-commercial and do not affect potential revenue.

What about that © symbol?The © symbol, or any other marking, is not required. It was necessary in the U.S. before 1989, but adoption of the Berne Convention removed this requirement, as copyright is now automatic. However, a copyright notice is still optionally used as means of identifying the copyright owner, along with the date of creation. You don’t have to include the © with your photo, but the addition of “© 2006 Joe Bloggs” tells everyone that Joe Bloggs hereby declares copyright ownership of this photo since 2006.

Why should I register?Registration is required to be able to file a lawsuit. If you registered your work before an infringement (or within three months of first publication), then you can sue for statutory damages of up to $30,000 (or $150,000 for willful infringement) PLUS attorney’s fees. Also, it will be much easier to hire a lawyer on a contingency basis.
For a post-infringement of copyright, you will still have to register it before commencing a suit, but you can only get actual damages and no attorney’s fees, which makes a lawsuit uneconomical.

How do I register copyright?You can apply online. An unlimited number of photos can be registered as a group for one fee of $35 (as long as they have the same author and registration year). Just put your JPEG digital photos in a single zip file and upload them to the U.S. Copyright office.  Most professional photographers recommend registering their photographs on a quarterly basis.  There are different rules for registering photos that have been previously published.

http://www.copyright.gov/

ASMP has a lot of good information on copyright for photographers, including podcasts, faqs and step by step tutorials:
http://asmp.org/tutorials/best-practices.html#.ULd0HNPjlgY

http://asmp.org/tutorials/best-practices.html#.ULd0HNPjlgY