Part 3 - Copyright
(use this part for all presentations, omit section B.2 for shorter programs)
Copyright is the single greatest form of protection that we, as independent creators of intellectual property, have at our disposal. Applied correctly, the law gives us the full legal force of the US Constitution and of Federal Law (title 17, US Code) to prevent most uses that we do not explicitly authorize. As such, it is a powerful force that we need to spend the next few minutes talking about. For more information and good links, visit the copyright section of the EP website: http://editorialphotographers.com/copyright/
A)
copyright defined and it's intention
With respect to photography, copyright is, literally, the "right to copy", to distribute and display those copies, the right to make "derivative works", and the right to profit from those copies. It is intended to foster artistic and scientific creativity by making it possible for people to control, and profit from, their efforts, so that we all can benefit from the creative efforts of each other. It is NOT trying to stifle the sharing of information or exchange of ideas, merely trying to guarantee that those who expend time and money creating something that we all enjoy, have the right to make an honest living doing so. Things like the telephone and the steam engine are examples of inventions that were originally protected by I.P. laws that have greatly benefited the world as a whole.
1) US Constitution and federal law
The original Copyright Law in the US, written in 1790, has its basis in the US Constitution which declared "The Congress shall have power . . . to promote the progress of science and useful arts…by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." (Article I, section 8). The copyright laws in the US have since undergone many revisions to keep up with changing values and new technologies, most recently in 1976 and again in 1998 with the Digital Millennium Copyright Act (DMCA).
2) any physical embodiment of a creative process is intellectual property belonging to the creator
In order to be protected, there must be a physical manifestation of a creative idea. Ideas themselves cannot be copyrighted, only the physical expression of them - music, photos, software, paintings, etc. It's not enough to say, "I thought of that first". But, once fixed in a physical medium, the protection now extends to all works, published or not, from the moment they are created, although this was not always the case. Works do not need to be registered in order to be protected, but as we will see in a minute, registration is the only way of giving teeth to the law.
3) automatically protected from creation to 70yrs. after death
In 1998, Congress amended the length of copyright protection so that all works created on or after 1/1/1978 are automatically granted protection for the life of the author, plus 70 years. You do not ever need to re-register or re-submit them in your lifetime. Works created or registered before 1923 are now in the public domain. Works from between 1923 and 1978 are in a gray area that require further scrutiny regarding registration, publication, and renewals. As you can see, keeping track of our copyrights is just getting easier.
4) let's be realistic: meaningful infringement vs."fair use" and infringements not worth pursuing
Again, let's be clear: copyright is not intended to stifle the sharing of information, only to help control the right to profit from original creative expressions. The exception to copyright protection that allows for the free-sharing of information is the "fair use" doctrine. Under this heading falls activities like criticism, commentary, news reporting, scholarship, teaching, and research - all acceptable venues for sharing information. Also at issue when determining whether a use is an infringement or not is the effect that that use has upon the value or marketability of the work. If a song is copied from a CD to a cassette for playing in your car, for instance, that use would likely not be considered an infringement because the copy is for personal use and doesn't diminish the value of the original work. If, however, you make copies for all your friends, then you have infringed the copyright because by passing them around, you are causing the copyright holder to be denied income. Also at issue are the meaningless infringements that, while technically illegal, are not worth pursuing - imagine a 12-year-old copies an image off your website to put on his own homepage. Now imagine that his mother, who is a graphic designer, likes the image so much she turns it into skate-boarding stickers and begins to sell them - see the difference?
A) why it's important to register
1) the act of registration is the teeth behind the law
Registering our images with the US Copyright Office, a department of the Library of Congress, puts our work officially on record as "copyrighted". It is not necessary to register in order to claim a work is copyrighted, remember the law states that works are automatically copyrighted from the moment of creation, but the act of registering and putting the work into the public record is what gives teeth to the law. Registering is the act that makes the law enforceable to the maximum extent and provides for the stiffest monetary penalties, and therefore is what gives us the power of Federal Law to stand up for ourselves against even large corporate legal departments.
2) registering early, vs. late, vs. not at all
a) remedies available with each
The law states that to receive maximum protection, your works should be registered before publication, or within 90 days of first publication. While you may technically register your work at any time, registering after an infringement has occurred entitles you only to compensation for the use plus any profits the infringer gained, often only a few hundred or maybe up to a few thousand dollars. Infringing a previously registered image, one that can be proven as registered, can bring punitive damages in the hundreds of thousands of dollars plus attorney's fees and court costs, and is a much greater deterrent for small and big businesses alike.
b) difficulty in getting an attorney without registering
Also worth noting is the difficulty in enforcing a claim against an unregistered image. Most attorneys will only take cases with registered images as these are often a "slam-dunk" and the financial remedies are many dozens, if not hundreds, of times greater. Cases without registration are difficult to prove and the pay-off is much smaller.
c) force a violator into a negotiation
Besides, the goal in most lawsuits is to avoid a lengthy and expensive trial where the outcome is uncertain, and both parties know this. If your claim against an infringement includes registration of your image, many cases will settle without court because, as stated, the law is very clear who is at fault and the remedies are clearly spelled out if the image is registered.
d) this law gives us rights, but with the right comes the responsibility to register
Copyright Law is a powerful tool to have at our disposal to guarantee our rights. But, as with any right comes the responsibility to use it wisely - register your images and enforce the terms fairly and firmly.
B) how to register
So, now we know we need to register, how do we go about it?
a) copyright forms and the copyright office website
For simple, detailed instructions on how to register, visit the copyright section of the EP website at : http://editorialphotographers.com/copyright// or the Copyright Office website at: http://lcweb.loc.gov/copyright. Easy step-by-step instructions can be printed out from either place. Quickly, there are three basic parts to filing a registration: making a non-returnable copy of the work(s) to stay on file at the Copyright Office, filling out a form, and paying a small fee ($30).
b) step-by-step explanation
Making a copy (or copies) puts the works on public record as registered and there are several ways to do this. Slide pages of unpublished images laid on top of a light box, or prints or contact sheets lit by overhead lighting, can be re-photographed onto inexpensive print film and processed into double prints at the local mall photo lab. Twenty images per page, one (or two, or four) slide pages or contact sheets per print, and 36 prints per roll means 720-2880 registered images per roll of film. Now, shoot and submit several rolls of film for one $30 fee, titled something like "John Smith unpublished images, 1998-2000", and you can see that costs can be very minimal. Have double 4x6 prints made and keep one set for your own records when you send the other in with your form and your fee. Then, both you and the Copyright Office will be able to find any image relatively quickly. Other methods include re-photographing with a digital camera and burning the images to CD, or laying slide pages, prints, or contact sheets onto a flatbed scanner and creating a digital "contact sheet". To register previously published work, you must submit two copies of the "best published version", such as magazine tearsheets or copies of a brochure or catalogue. Tips, tricks, and suggestions, including shortcuts in PhotoShop, for all methods can be found at the EP website copyright section.
The second part of registration, filling out the form, helps you and the Copyright Office to file and retrieve the information when needed. The forms are not complicated, but there are a variety to choose from and getting the right one is important. Generally, for unpublished photographs, use the simple one page form titled, "Short Form VA for the Visual Arts". Sometimes, as for a body of published work, the slightly longer, two page "Form VA" must be used. Keep a copy for your records and mail the form with your copies of the work(s) and your $30. Forms can be ordered from the Copyright Office or downloaded from their website or through the EP website.
Finally, the small fee merely covers the costs to the Copyright Office to process and maintain all this information. Currently, the fee is a simple $30 that may cover as many unpublished, or published, images as you care to submit at once. A note here though, not to submit unpublished and previously published work together. Each must be recorded separately because of the potential financial benefits, in case of an infringement, to registering unpublished work.
c) set up a system (monthly, quarterly, before any submission, etc.)
Finally, because of the greater benefit of registering work before it is published, get in the habit of copying your unpublished images once every month or quarter, or before submitting anything to a client, then filling out the form and paying the fee. Think of it as an insurance policy to protect against unauthorized use. When was the last time you could buy insurance that gave you such cut-and-dried protection, for any amount let alone only $30?
In summary, with a few minor exceptions, Federal Copyright Law gives us the sole and exclusive right to control and profit from our images. The law is very clear - it is the responsibility of the end-user to get permission PRIOR to using an image. There is a system in place to enforce those rights, but in order to take advantage of it in any meaningful way, we have the responsibility to register the work. Most photographers do not take the time to do so, and most users of images know this and therefore may take advantage knowing that even if they get caught, the penalties will be slim. Without registration, we have very little recourse to control and profit from our work. By following a few very simple steps, we gain the full protection of federal law when enforcing our claims against even an army of corporate lawyers.