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.
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.
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?