EP Copyright Primer
© 2000 Michael Grecco
Originally appeared on the EP mailing list.By: Michael Grecco email@example.com
In 1976 congress passed a comprehensive copyright act that went into effect in 1978. That act is what we are governed by, for the most part, today. The law prevents the publishing, distribution and even photocopying of a copyrighted work without the creators permission (known as a license). That means all those ad agencies and magazine that copy work from your portfolios have technically broken the law.
It has been said that copyright in general is deceivingly simple. In other words, it looks so easy but as you get deeper into it is actually very complex. For all of us the biggest aspect of the law is the registration of the images.
As photographers, the moment you press the shutter you have taken a copyrightable image. At the moment of capture the work is copyrighted. In most cases the photographer is the copyright holder. The exceptions are employees where the company owns the work, and photographers who have signed a work for hire agreement. Since the work is copyrighted at the moment of capture, work for hire agreements are not enforceable unless they are signed BEFORE the capture of the image. The law is very clear on this.
An image is not copyrightable if it has NO ARTISTIC merit. A copyrightable work most be, as the copyright offices says, an "original work of authorship." In other words, if you are copying paintings the photograph itself might not be copyrightable because the painting is the underlying image. The photograph itself adds no artistic value. The example that is often given is that you can not copyright a phone book. There is no artistic merit to a phone book. There must be some sort of value to it, however minimal. Now, some of you who might think your photographs are not good enough to copyright are mistaken. These are extreme cases where the work has no merit at all.
You can NOT copyright a concept. The look and feel of the image is what is copyrightable, not the idea behind it. Another photographer can execute your same idea differently and be within his or her own right to do so. This is how the regulation reads:
The statute declares: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
Disclaimer: This is not meant as legal advice. I am not an attorney. This is intended for educational purposes only. Please consult an attorney regarding any questions or clarifications.
The next piece to the puzzle is the registration of the work. The copyright law was pushed through by publishers for fear of the new invention of the day, the copy machine. The fear at the time was that people would just take a magazine and "republish" it themselves. Thus because the process of copyright registration was set up with magazines in mind, it is not particularly photographer friendly. Having said that, registration is a necessary thing. The way the regulations are set up, all of the benefits of the 1976 copyright act come from the registration of your images.
If someone infringes your images and they are not registered, the infringer has broken the law. Most infringers willingly take the risk, because they know most photographer's do not register their material. They also know that they will pay little more when caught then they would have to if they licensed the image from you. The logical conclusion is why not take the risk. Without registration, you as the image maker bear the burden of proving what the image was worth and the burden of your own legal costs. There is no mechanism for triple fees or punitive damages without registration.
Once an image has been registered the law is set up to compensate the copyright holder with his or her legal fees and punitive damages of up to $150,000.00 per image infringed. One attorney I met at a panel discuss on copyright calls this the biggest legal "hammer" he knows of when negotiating settlement or prosecuting a copyright in infringement. The difference being registered and not is legally "stunning". Having been personally infringed in the past I know all to well the difference myself.
A current work is copyrighted with or with out copyright notice attached. Remember it's copyrighted at the time of creation. However, there is a new regulation that provides additional compensation for anyone removing a copyright notice from an image. This also serves to prove willfulness on the part of the infringer in the overall copyright case. For this reason I put notices directly on all of my images on the web.
For registration to have the force of the law it must be properly filled out and it must be received by the copyright office before the work is infringed. The office stamps the registration form when received, but I send my forms via FedEx in order to prove the date it was signed for. This way if the copyright office is backed up and stamping registrations late, I have record of its receipt. Again, registration after infringement only serves to prove the image is yours if you need to proceed to court. It does not give you the "legal hammer." Register early!
Registration can be done in two ways, as a collection of unpublished work, or as published images. Below are the regulations from the copyright office for the registration of unpublished work:
1. A correctly completed application form;
2. A $30 non-refundable filing fee for each application; and
3. A nonreturnable deposit of the work to be registered.
Two or more unpublished photographs may be registered as a collection if:
1. The elements are assembled in an orderly form;
2. The combined elements bear a single title identifying the collection as a whole;
3. The copyright claimant in all of the elements and in the collection as a whole is the same; and
4. All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each of the elements.
This is how I register all of my work before it leaves my studio. If anyone is interested in my methods please email me with the word "copyright" in the subject and I will email you my procedures.
The following are the regulations for registration of published work:
Published collections of photographs and all of the copyrightable elements of a unit of publication may be registered on a single form with a single fee if all of the photographs are owned by the same copyright claimant. Registration of a collection of photographs extends to each copyrightable element in the collection. There is no limit to the number of photographs that may be included in an unpublished collection.
In the case of published work two copies of the published work are required for deposit with the registration, not one. Also, published work MUST BE REGISTERED WITHIN 90 DAYS OF PUBLICATION. Seth has a theory that publishers have set the 90 day embargo periods up to prevent photographers from properly registering their work before the registration period ends. I would bet that this is a consideration for some publishers.
This is the proper way to do it. I am sure some of you have stories about situations where these procedures were not followed and the copyright holder still prevailed. I will repeat this is the proper way to do it, the way that should give you the most protection under the law.
As we get deeper into copyright you see how complex it can really be. I have learned most of this information through expert legal advice. Please find a good copyright attorney in you area for help when needed.
PART THREEI hear the most questions about how to go about copying your unpublished work for deposit. I have a copycamera above my light box and shoot them as groups of four sheets of transparencies or four contact sheets at a time. I then take the copy film to a one hour lab and have them make a set of 4 1/2 by 5 1/2 prints for deposit. If anyone is interested in my methods please send me an email with the word "copyright" in the subject and I will send them to you.
Other methods include:
1. Color copies or contact sheets can be submitted, but if you shoot a lot of film this can get expensive.
2. Making a video of the still images will work, but a single frame must be on the screen for 5 seconds at a time, making this method very slow.
3. You can also submit a CD, but it must be accompanied by a hard copy of some kind (ie. a laser print will do), of a sampling of images.
4. Photographic prints may be deposited. One attorney actually advised against this citing instances where people have gone to the library of congress and copied the work from the registration office. His advice was to not make the copies deposited too good to prevent this.
(Yet another way to register images.)
The "advanced course."
You do not want to double register your images. An image is best protected by registering it early and once. Multiple registrations lead to confusion. Also, the second registration may negate the first. If a smart opposing attorney finds out that there was a later registration, after an infringement, a case can be made to negate the first and earlier registration. If that attorney succeeds with this strategy, you are no longer protected by the registration. In registering my web site, I did not register the images as a collection of photographs for fear of double registration. Instead, I registered the site in it's entirety, including the text and the design of the site. This created an entirely new collection that is not just photographs which will help prevent a claim negating any earlier registrations.
Some infringers are protected by a law called the "Fair Use" law. This law is set in place to give certain groups access to news and educational information even though it is copyrighted. For example: If you photographed someone in the news that nobody else had images of, your image itself would be news worthy. Hence there is public interest and service if used. But "fair use" all depends on how the image is used. If Channel 2 news video taped the whole page that your image was published on, and mentioned that it ran in the News of the Universe, that would be a good example of fair use. If they shot a close up of the image, as if it were there picture, and made no attempt to license it, even though you're listed in the phone book, that would be hard for them to defend as fair use. They could have simply done the right thing and licensed a usage. The infringer must justify why they used it with out permission. If they can satisfy a judge, it can be deemed "fair use."
Parody also falls under the "Fair Use" doctrine. If you are using the look and feel of an image for the purposes of satire you are protected. The most recent and famous case I can think of is the "Naked Gun" movie poster that imitated Annie Lebowitz's naked and pregnant photo of Demi Moore. Paramount Pictures won the case because it was a direct parody of the original Vanity Fair cover. The image looked just like her's except Leslie Nielson's head was pasted on the body.
The "The Digital Millennium Copyright Act" was passed recently. It protects web host providers (the people who have the computer that keep your site up on the Internet) from prosecution from their "clients" infringements. What that means is if "Bob" puts up his site and rips off all off your images, you can not prosecute motherearthlink for hosting "Bob's" site. The good part is, for that protection from prosecution, motherearthlink is required to take down the pages on "Bob's" site that infringe your work. That is provided you can prove "Bob" infringed your work (easy). I recite this law anytime I find someone on the web infringing me and "carbon copy" their web host provider so the infringer knows I mean business.
Lastly, state's governments are immune from copyright prosecution. A state can willfully infringe as much as it wants without fear of prosecution. Hence, when doing business with any state government it might be advisable to get a SIGNED agreement having them waive their immunity from prosecution. Other wise you might never stop them from infringing once they have your work.
As I have stated in the previous parts of this series copyright registration is fundamental in the protection of our own work and the education of society as a whole. We as a profession need to show that we value the work we create so that others in society will learn to value just as much. We create our own destiny and it must be worked on at every level, including protecting our livelihoods. If we fail, we will have no one to blame but ourselves.
©2000 Michael Grecco, firstname.lastname@example.org