Understanding Copyright on Both Sides of the Lens

Understanding Copyright on Both Sides of the Lens

Many photographers use the word “make” to describe their process of photography. “I made these images,” you might hear a professional say describing his work. The layman phrase, “take pictures” or “capture photographs” evokes a feeling that the photographer did not put any work into the image, that they simply pointed the camera and the photo just came to be. Any creative medium takes skill and I’m not here to argue the artistic validity of a photograph over a painting or sculpture. But a somewhat fatal flaw of the digital age is the ease of which photography can be transferred, saved, downloaded, and reproduced in comparison to that of physical artistry.

Copyright is designed to protect those original works from duplication and understanding copyright and how to protect yourself is a vital part of becoming a successful photographer. Understanding the law, knowing your rights and deciding how much risk to take are areas every photographer should know and practice whether they are a weekend hobbyist or make a living off of their work. Taking precautions before they become problems will save you time and money as well as keep your reputation safe.

Note that this article isn't legal advice, rather it's just tips on the subject of copyright. If you need legal help, contact a licensed attorney.

Keeping Your Images Safe

There are a lot of ways to protect your work but doing so in the right way will save you from a headache down the road if you ever need to take action. Knowing the difference in the legal options that protect original work is the first step. There are three ways the United States government utilizes to do this. A copyright protects original artistic or literary work. Trademarks protect logos, brand marks and words, phrases, symbols, and design pertaining to a business. Patents protect inventions. As photographers, we want to focus on copyright.

In general, the moment a shutter is pressed, the person who fired the shutter owns the copyright. An example of an exception would be "work made for hire" where either the photographer is an employee hired to take photographs for an employer, or the photographer is hired and signs an agreement to provide photographic services for a specific event (freelance).

Simply knowing you have a copyright is not enough, however. In the event of an infringement, it’s important to have a registered copyright with the U.S. Copyright Office if you want to receive any damages. Most lawyers won't touch a case without a registered copyright. Thankfully, it’s very easy to obtain a registered copyright through online registration.

Some photographers employ watermarks to deter theft, but slapping your logo or even the copyright symbol on an image does not make it a registered copyright. It does, however, make it very easy to prove you’re the owner of the image.

Watermark-Image-Copyright-Protection

You might think that if you use someone else's image without making any money off of it, then it is OK to use. That is incorrect. While some educational purposes and fair use arguments can apply, it’s still important to get permission to use the photo for every case the content is not yours. Similar to Creative Commons, there is still a license agreement between the content creator and user.

Be Careful Where You Point That Thing

Protecting your images is just as important as understanding what you can photograph. Just like your photos have copyright, people, places, and things have protections as well. Almost anything can have a copyright including architecture, drawings, tattoos, graffiti, toys, public art, and so on. Logos and signs are trademarked and protected and people have a right to privacy. Not taking the right steps when photographing an image with one of these things in the frame could cost you.

This doesn’t mean everything is off limits, that would make being a photographer quite difficult. But it’s important to understand that just because you take a photograph of something, doesn’t mean you can do whatever you want with that photograph.

Copyright-Fstoppers-Photo-Protect

Let’s look at an extreme example. You’re at the modern art museum and your friend starts posing next to a sculpture. You take a few photos on your phone and they turn out really well. You decide to sell the photograph as part of your next photography book. This scenario has a few problems. First, the artwork is not public and has a copyright. You also paid an entrance fee and are not in a public place. Selling your work commercially infringes on the artist of the sculpture. Think of it like taking a photo of a photograph. The work is not all originally yours.

The same happens with logos. If you are commissioned to take a photograph of a building and there is a brand logo in the photograph from the adjacent building, you either need to remove the logo or get permission. Logos are much like art. Brands put a lot of money into their instantly recognizable marks and they also put a lot of money into protecting them. Think about if anyone could use the Nike swoosh and it showed up on everything from telephones to cleaning supplies, it would not be as synonymous with sportswear as it is today.

Finally, people have a right to privacy. Let’s take the above friend example but instead you are in a public park. Again, your photos are great and you decide to sell them. You would want to have your friend sign a model release. This grants you limited commercial rights to use the photo as you please. It’s important to follow what uses are allowed in a model release. Your friend might be okay with someone using the photo in an ad for the park but not an ad for smoking.

It all comes down to commercial and editorial use. Basically anything for profit (commercial) is held to a high standard when it comes to protections. It is in a commercial photographer’s best interest to protect themselves and their clients by taking precautions when producing their work. But an editorial photographer can use photographs with copyrighted material if the image has “newsworthiness.” An editorial photographer can publish in a newspaper a photograph of people marching in a Fourth of July parade, but a commercial photographer cannot use a similar photograph in a retail catalog without releases. Pay attention and ask questions when you’re unsure.

At the end of the day, photographers have to decide and manage how much risk they are willing to take. Not every photo with a logo or toy in it will be litigated against by a big corporation. It’s important as a photographer to have a risk threshold. Ask yourself what you are willing and unwilling to do. Will Hot Wheels file a lawsuit against you for the portrait of a toddler and his favorite toy? You be the judge on how likely that is.

Have you as a photographer ever had an issue with copyright? How did you resolve the issue? How do you protect yourself?

[via PPA, PhotoAttorney, and Getty Images]

Log in or register to post comments

17 Comments

Registering your copyright and fulfilling the deposit requirement is also how the Library of Congress builds its collections. There are some pretty hefty fines for not fulfilling the mandatory deposit requirement if your claiming and registering a copyright so be sure to provide the "complete copies" required under the law.

Chris Adval's picture

Sometimes its very confusing when private companies lease out a public land and have you pay an entry fee while they lease the property from the city. i.e. Eastern State Penitentiary is currently owned by City of Philadelphia but currently leased and handled by a private non-profit company. But I did ask, they had no issues with the images being sold but don't name/title anything as Eastern State Penitentiary as that part they own (the name), assuming through trademark.

Casey Berner's picture

Unfortunately some of the biggest problems with copyright is simply confusion. Many times photographers aren't aware of the rules or they are too confusing and they don't understand. It's usually best to ask permission but sometimes that can be more difficult than it should be.

Chris Adval's picture

Well in my case with Eastern State Penitentiary I did ask the official property owners of Eastern State Penitentiary which is City of Philadelphia, which is obviously the public. But the confusing part the property being leased by a private company, luckily at the time I shot it and currently it is being leased by a non-profit and I did ask permission and got email/written and phone/verbal permission, but with the restriction to not being able to use "Eastern State Penitentiary" to advertise or title any of the products sadly, which does hold back a lot of SEO and from online sales. At most all I can do is sell it as stock or in-person prints from my trip to Eastern State Penitentiary.

It's not accurate to say that you cannot sell an image without a model release. You absolutely can sell an image to anyone if you own the copyright. The person who then publishes the image has to make sure the model is cleared.... for this reason some may not BUY your image without the release, but you can absolutely sell the image without one if someone is willing go buy it. And "right to publicize" is not the same as "copyright", which is the reason you can sell it even if you don't own the right to publicize.

If the publisher gets sued, it's more than likely the photographer will also be sued. Why bother licensing an image without a release? Better to use the word license than "sell". You shouldn't sell, you should license photos. This issue the the publisher is responsible and not the photographer is a "factoid". I know big time stock shooters who throw away images even in third world countries if they don't have a release.

ASMP has some really in depth advice and tools related to copyright - including a step by step guide to online and paper registration as well as FAQ's about copyright myths and more

https://asmp.org/tutorials/online-registration-eco.html#.VUtdj1L3aJI

Ian Johns's picture

What timing on this topic -- I just watched copyright/IP attorney Ed Greenburg and Jack Reznicki's video over on KelbyOne as a primer on copyright law yesterday as it pertains to photographers before starting their book (Copyright Zone) last night. They are making this MUCH easier to understand for me, and the book is also an entertaining read with real-world examples. And no, I'm not paid by them, an employee of their publisher, or an employee of KelbyOne. I just like to talk about a good product (in my opinion, anyway) when I experience one. Great article!

Casey Berner's picture

Great! I'll have to check this out. As I mentioned in the article, part of the problem of copyright is lack of knowledge and understanding. The easier we can make the law and education on copyright, the better everyone will be.

Thanks Ian. Appreciate the review (especially since it's good ;-> )

Ian Johns's picture

No problen, Jack. I'm only about 40 pages in and it's one of the more interesting reads I've had recently -- that can be good or bad depending on how one looks at it. Really enjoy the real-world examples, or even the use of fictitious ones to help paint a picture. I wish more authors had this style of writing. Starting up on portfolio building soon and want to get off on the right foot with copyrights. Very thankful for your (and Ed's) product!

@EW. I think you are not correct about "hefty fines" for not depositing images. You can't get a registration without a deposit, it's required before a registration can be issued. And not everything deposited goes into the LOC (usually published things).
The requirements for unpublished work is a lot simpler than published work. Simple small, highly compressed jpegs is all I ever send in. Also, you own the copyright as soon as you press the shutter even without registration. Registration is not required for copyright for many decades now. So you can have your copyright without a deposit, without any penalty (but I highly, highly recommend getting all your work registered!!)

Casey Berner's picture

Thanks Jack for the comments! The more conversations we can have as photographers, the more understanding we can share.

Agreed completely Casey!

Jack, I'm fully aware of copyright law since I work it for a living. And I worked at the Lib of Congress for 8 years. As you know, people claim copyright all the time without registering. Its allowable under the law. They do not however, always send in the best, complete, publishable version of their work. Which most definitely is required under the law. YOU MUST deposit if you are claiming and registering a copyright. The LC would send letters - 1st offense is $250, on up to $2500 if you ignore the requests. Additionally, everything deposited most definitely goes into the LC archives. Whether or not its sitting in the Jefferson, Madison or Adams buildings or off-site in some of the newer warehouse facilities.

Its worth noting that we're amending copyright law this year - maybe next since you know how Congress is these days. It hasn't been amended since the Sonny Bono Act passed in the late 90s...long before we really knew the potential of the internet and digital images. Thus the form of the deposit may be more loosely defined after all is said and done.

Commercial and Editorial - but don't forget Artistic License. Nussenzweig v. diCorcia is a decision by the New York Supreme Court in New York County, holding that a photographer could display, publish, and sell street photography without the consent of the subjects of those photographs.

ART is a different world. FAIR USE is as well.

Many outside these areas think they are protected by copyright but somehow don't understand that originality is required.

Then we have those who claim "if you change it at least 20%(or some such)" it is not copyright infringement.