Know Your Rights: Basics of Photographic Copyrights

Know Your Rights: Basics of Photographic Copyrights

At this point I have lost track how many times I have been given inaccurate counsel from other well-meaning people, such as, "Make sure you copyright that so nobody can steal it," or "If you put it online then you give up your rights and it becomes public property." Such advice will only ever come from people who don't actually understand copyright laws. When it comes to copyright issues and navigating them, the only advice worth following is advice that can be backed up by law. If you receive advice that can't be backed up by legitimate copyright law then the advice is simply someone's opinion.

In this particular realm, it will likely be in your best interest to simply do your own research and understand, for yourself, what the copyright laws are for where you live. For the purposes of this article we will be looking at, and linking to, the copyright laws specific to the United States of America. For individuals both in the U.S. and outside of it, in order to understand what laws protect your works in other countries you will have to look up the laws for the specific country in which you need copyright protection.

From my experience, there seems to be a misunderstanding as to when the copyright comes into play. In a nutshell, under the Federal Copyright Act of 1976, all photographs are protected by copyright from the very moment of creation. If you would like an in-depth description of your rights as a photographer, you can read through all the government documentation that outlines the specifics of the actual laws concerning subject matter and scope of copyright. There are distinct differences between ownerships that need to be understood. For client work, understanding the intricacies and differences between the possible ownerships of copyrights is something that needs to be clarified up front (this is where your contracts come in handy). 

The following is a direct quote from the U.S. Copyright Office outlining the copyright laws for the United States.

Ownership of a ‘copy’ of a photograph — the tangible embodiment of the ‘work’ — is distinct from the ‘work’ itself — the intangible intellectual property. The owner of the ‘work’ is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph.

In general, what that means for you, the photographer, is that your images are copyrighted automatically simply by you clicking the shutter. The only way that changes if you have a specific arrangement with your client, documented and signed by both parties, before creating the photographs. If it isn't documented and signed before the creation of the images, then a legally binding document must be signed that outlines the transfer, either in whole or in part, of the copyright from the photographer to whoever the recipient is.

Going to the extent of legally registering the copyrights for your photographs is not an obligatory step for protecting yourself. Registering your copyrights will make things easier should you enter a litigation situation, or for claiming damages, but you do not relinquish your copyrights to any image simply because it isn't registered.

Below are some of the most helpful sources that can help you gain a more advanced knowledge of copyrights and the laws protecting them:

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26 Comments

Jason Brown's picture

I would love to know what your opinion is on drone photography. I'm a licensed FAA pilot for over a year now, but I took photographs prior to my commercial use license. My question would is who owns the copyright and transfer of copyrighted images from the air if you do not register yourself for commercial aerial photography, as in the part 107 regulation. I always thought to myself these two, a law and regulation don't mix well. The FAA says you can't make money on your own copyrighted drone photos, until you buck up and pass a $150.00 test?

Rex Jones's picture

According to the US Copyright Office, you are the sole copyright holder of any photograph that you create, regardless of what device you used for the creation of the image.

Correct me if I am misunderstanding your question. It seems you're asking about your ability to sell commercial licenses of your aerial photographs and how the copyright system integrates with FAA regulations?

Owning the copyright of any artistic work, in this case aerial photographs, applies from the moment of creation. That is uncontested, and backed up by the US Copyright laws linked in the article.

As far as licensing those images for profit, you are now entering the realm of the licensing and releases of what is actually depicted in your images. It is not unlike a model release, where in order to commercially license a photograph that you created that depicts another individual you must acquire a signed release from that person. You do not own the copyright for their visage, instead you own the copyright of the image that depicts them. It can go both ways. If the model should desire to license that image for profit, they would need your permission, just as you would need theirs in order to do the same thing.

I honestly haven't looked into the specifics concerning fees you are talking about with the FAA, but it seems that they want you to understand something about licensing images that depict property that doesn't belong to you. Just like you would need to acquire a property release in order to sell commercial licenses of photographs that you create that show someone else's property. If you have a link to the specific documentation/test to which you are referring then I would be happy to look into it. Otherwise, perhaps some of our other staff members or readers who are drone operators could help. :)

Kirk Darling's picture

If that's what the FAA regulations actually say, it sounds like something that needs to go to court. Inasmuch as copyright law is based directly in the Constitution, I suspect the FAA regulation would be overturned--but it sure sounds like a court ruling is necessary. In the past, the courts have supported copyright over state laws such as trespassing. For instance if you were trespassing--taking pictures of someone else's property without permission--you still have full copyright ownership of the photographs and the ability to profit from them, which no other law can take away.

Michael Kormos's picture

It would be worth nothing that another legal subject that's often used in conjunction with copyright (and one that is just as often misunderstood) is that of likeness. If you take a photo in which a person's face is recognizable, and then license that photograph to sell a product, service, or an idea, that person can sue you. I won't go into detail here, but it's important to keep in mind if you ever wish to use your photos in a place other than your blog/website.

https://www.rocketlawyer.com/article/when-you-need-a-photo-release.rl

Rex Jones's picture

That is an excellent point, and I agree that it is another realm that is often misunderstood. In terms of licensing an image, it's good to understand both sides of the paperwork.

John D's picture

I'm guessing that's why the boilerplate model release I downloaded (from 500px, I think it was) has a specific paragraph stating that both sides agree the image is of a fictional person.

A very helpful example was when Ellen Degeneres hosted the Oscars a few years ago and she handed her phone to someone else to take that famous selfie. Lots of non-photographers learned then that the shooter, not Ellen, had copyright to that picture.

Patrick Hall's picture

The biggest advice I could give you as a photographer is to copyright your work through the copyright office. Owning the copyright doesn't afford you much benefit if your work is infringed on unless you also have it registered. Registered work allows you to sue for statutory damages which are usually WAY more than most photographers are licensing their work for and it also allows you to spend as much money as you want on lawyers with the infringing party having to pay those costs when you win the lawsuit. This last point is a huge way to negotiate with an out of court settlement.

Tomorrow we are releasing a new tutorial by Monte Isom that covers the business of photography and includes copyright protection. In the 30 days since we finalized his video, I have personally made about $20k on infringements I didn't even know we could win. Moral of the story, copyright everything you produce every 30 days and hire a company to look for your work online.

Patrick Hall wrote, “The biggest advice I could give you as a photographer is to copyright your work through the copyright office.”

Patrick is right on-point about [timely!] registering your photo copyrights with the US Copyright Office!

However, Patrick’s comments are inconsistent per using “to copyright” and “to register”, and that leads, too often, to confusion among the creative community.

First and foremost, the US Copyright Office does NOT grant copyrights—when you create an original photograph, it receives an immediate + automatic copyright. The US Copyright Office, among having many other duties, is an office of recordation and registration. The US Copyright Office will “register” your claim to one or more copyrights and then “record” it to its public database. It will mail you your “Certificate of Registration,” rather than a certificate of copyrighting. The top lawyer at the US Copyright Office is currently Karyn Temple Claggett; along with being the (acting) Director of the US Copyright Office, she is also the (acting) “Register of Copyrights,” not the Register of copyrighting.

To be clear, there’s NO such thing as “copyrighting” or “to copyright”—copyright is a noun or an adjective, but never a verb: e.g., I wrote five novels, and each one has its own copyright (noun); My five novels are copyright-protected/copyrightable (both adjectives) because they are original and affixed; Though my novels are automatically protected by copyright (noun), next week I’m going to register them with the US Copyright Office to fully protect them from being exploited by third-parties.

The correct usage is to “register” your photographs’ copyrights with the US Copyright Office. Verbing copyright is slang and confuses most all creatives who are new to copyright law. Fstoppers, professional art associations, and creatives should push to use the correct terms when describing IP rights and their enforcement.

Patrick wrote, “In the 30 days since we finalized his video, I have personally made about $20k on infringements I didn't even know we could win.”

Though I cannot(!) argue with Patrick’s success of collecting $20K in money damages by using a company to track infringements, understand that these companies typically are looking to settle quickly (often at lower settlements fees) with infringers and move on to the next infringement; they are not set-up to file copyright infringements actions in federal court. These companies might be useful in pursuing small infringements. If you locate a medium/large infringement, you should visit with a skilled copyright litigator to explore all your legal options, as you’ll typically recover more money damages.

Patrick wrote, “Registered work allows you to sue for statutory damages which are usually WAY more than most photographers are licensing their work for and it also allows you to spend as much money as you want on lawyers with the infringing party having to pay those costs when you win the lawsuit.”

That’s not quite correct. To be eligible for enhanced money damages, i.e., statutory damages from $200 to $150,000, notwithstanding Fair Use claims, the infringed work MUST be “timely” registered with the US Copyright Office, either BEFORE publication, WITHIN three-months of first-publication, or BEFORE the infringement occurs. The award of any statutory damages AND attorney fees + costs are at the court’s discretion(!), it’s NOT automatically granted to the winning plaintiff. Typically, if the work was willfully infringed, then the court is much more likely to grant the plaintiff his/her attorney fees and cost against the infringer.

Patrick wrote, “Moral of the story, copyright everything you produce every 30 days and hire a company to look for your work online.”

Patrick is absolutely right about [“timely registering”] all your works with the US Copyright Office.

But do you mean to register your published or unpublished works every 30-days?

You cannot mix published and unpublished works in the same copyright registration application. My preference is to register my images as unpublished, before sharing them on any web or social media sites, before licensing/before selling them, and before distributing/before posting them. You’re permitted to register an unlimited number of unpublished images in an eCO $55 Standard Application; you’re permitted to register an unlimited number of published photographs if they were all first-published simultaneously on the same date and in the same unit of publication. You can also register images that were first-published in a single calendar year, like your published photographs from 2012.

chris bryant's picture

It would be very helpful to cover copyright law in other countries besides the good ol' US of A. Can I assume that a reasonable portion of Fstoppers reader/membership, like myself, do not reside in the US of A. Another example of a ego-ethnic website.

Kirk Darling's picture

I would expect a photographer in one of those other countries to write such an article.

chris bryant's picture

Not just a photographer, a Solicitor would be more appropriate..

Kirk Darling's picture

So find one in your country and encourage him to do it. Or you do it.

Just do it.

You continue to harp on what FStoppers ought to be for non-Americans, but your complaint would only be valid if FStoppers had been rejecting such articles from non-Americans. Otherwise, you can only cast blame on yourself, as a non-American, for not submitting articles as American photographers are doing.

Rex Jones's picture

I agree, Chris. Covering copyrights from multiple countries would be a great resource all of our readers around the globe. I, personally, am somewhat hesitant to write up an article about copyright laws for any country other than the USA, simply because I live here and am only familiar with the copyright laws here in the states. The last thing I would want to do is misinterpret copyright laws for another country and have one of our readers get in trouble because of misinformation that they found on Fstoppers.

One thing you can do is to use the Fstoppers contact form and suggest to the administrators here what copyright laws you would be most interested in reading about. From there, they can open up that topic option to all the staff. If we have any staff members who either reside that particular country, or if they are familiar with the copyright laws for that country, then that writer would be able to put that article together. :)

https://fstoppers.com/contact

chris bryant's picture

Thank you for your reply Rex. I certainly was not getting at you, I am sorry if I came across in that manner. I understand your perspective and I am glad that you took the time and effort to write the article. Ideally the internet does not have borders and thus, fine and popular websites such as this can expect a good degree of ethnic and national diversity. It would be great if that diversity was reasonably acknowleged and satisfied. Thank you.

Robert Bell's picture

Thats hardly sporting Chris, the author is American and so is Fstoppers who actually cover all sorts of stories and topics from around the world.

chris bryant's picture

You are probably right! Not exactly cricket! I apologise. Ideally the internet is truly international. There are no borders. A popular website such as this would have a diverse readership, and in lieu of the popularity of photography I would not be surprised if a good portion of visitors are without the US. It would be great if F-Stoppers presented a truly multi-national and multi-ethnic approact to articles. Apart from the self-benefits, there should be no room for insularity and isolating a potential audience.

Chris Bryant wrote “It would be very helpful to cover copyright law in other countries...”

Chris, I’m a foreigner who’s been living in the United States for a long time.

As others have written, you’ll have to investigate your own country’s copyright laws to get accurate information.

However, the following may explain why you should register your international works with the US Copyright Office:

I have to believe that if one of your photographs is being infringed in your home country, it’s also likely being (eventually) infringed in the United States.

Most all countries belong to the Berne Convention (copyright treaty), including the UK/Europe, Australia, Japan, Canada, where among other things, NO formalities are needed to secure a photo copyright.

Though international photographers have legal standing to pursue USA-based copyright infringers without having a US (copyright) Certificate of Registration in-hand, they will only be permitted to pursue “actual money damages” (these are typically what the photographer would have licensed the photograph + any profits [if ANY!] the infringer made from using the unlicensed photograph). Actual money damages are typically LOW fees, and as a rule, your attorney fees will greatly out-strip any money award you receive from a US court, making it financially impractical to pursue money damages from copyright infringers located in the US.

If you don’t want money damages, you could use the US DMCA to force the infringer’s US-based web host to remove your photographs. If, however, the infringer files a DMCA counter-notice to keep your photographs posted to the site, then you’ll likely have to file suit in the US to get your photographs removed.

On the other hand, US and international photographers who “timely” register their photographs with the US Copyright Office (as unpublished, before the infringement occurs, or within three months of first-publication) can pursue enhanced statutory money damages PLUS potential recoupment of attorney fees and legal costs (at the court’s discretion!). A timely registered photograph provides both American and international photographers with LEVERAGE to push a US infringer to settle out of court. If the infringer does not settle and the photographer prevails in court, the infringer is now liable for up to US$150,000 in money damages and payment of your attorney fees! Think about that.

US and international photographers can register an un-limited number of un-published photographs for US$55. You can also register an un-limited number of published photographs for US$55 if they were all published on the same date and in the same unit of publication, like a calendar, website, magazine, etc. It’s US$35 to register a single un/published photograph. These rates are current as of November 2017.

Though this article was written by a law firm, it reiterates my points that all international artists who produce creative content should timely register their creative media with the US Copyright Office (just replace the word “corporation” with “photographer”): http://donahue.com/resources/publications/copyrights-registered-u-s/

When you contact a US-based copyright litigator to counsel you on your rights to pursue an American infringer, the first question your attorney will ask you, “Chris, did you timely register your photo copyright with the US Copyright Office?!”

US, European, UK/Ireland, and Canadian photographers all obtain HUGE dividends when they timely register their copyrights!

If you and other international photographers choose not to timely register your photographs with the US Copyright Office, at the very least affix watermarks and include metadata and other identifying marks to your posted images (aka “Copyright Management Information”/CMI). If an infringer removes, changes, or cover-ups any CMI to hide an infringement, photographers are eligible to pursue statutory damages of US$2,500 to US$25,000 against US-based infringers; you’re also eligible to pursue attorney fees and costs! Good News: Whether you’re located in the US, UK, etc., it’s not necessary to timely register your images to pursue CMI legal actions! I’m seeing more and more US attorneys using this strategy to pursue infringers located in the United States: http://www.photoattorney.com/options-recovering-infringement-damages/

Good Luck.

The author Rex Jones included links to “some of the most helpful sources that can help you gain a more advanced knowledge of copyrights and the laws protecting them”; his listed included “Binded: A Quick and Easy Way to Copyright Your Images”.

Respectfully, Rex is mistaken—photographers & creatives should NOT rely on Binded’s copyright protection (in the USA) and here’s why:

Binded (formerly aka Blockai), other “time-stamping” web entities, and the poor man’s copyright are NOT substitutes for “timely” registering your photographs (artwork) with the US Copyright Office (see 17 USC § 412: Registration as prerequisite to certain remedies for infringement).

If you register your photographs with the US Copyright Office before publication or within five-years of first publication, you receive presumptive proof (prima facie evidence) that you have a valid copyright and the facts stated in your copyright registration application will be deemed valid. Having your copyright Certificate of Registration in-hand (helps) prove when you created the work, your authorship, and its corresponding copyright to a federal judge and others (see 17 USC § 410(c): Registration of claim and issuance of certificate).

When filling out a US copyright registration application, photographers must “certified” that they are the author, copyright claimant, the owner of exclusive right(s), or authorized agent of the work. Photographers or others who knowingly lie and make false representation of a material fact in the copyright registration application, are subject to a US$2,500 fine (see 17 USC 506(e): False Representation [Criminal Offense]).

Again, you prove your copyright authorship & ownership simply by timely registering your photographs with the US Copyright Office!

Along with “timely” registering your photographs, affix them with a watermark and metadata. The removable or modification of the DMCA “Copyright Management Information” (CMI) to hide a copyright infringement can subject the infringer to statutory damages from US$2,500 to US$25,000 (see 17 USC §§ 1202-1203)—a timely registered copyright is not required to pursue CMI violations! You’re also eligible to pursue attorney fees & cost, at the court’s discretion. If you choose not to register your copyrights, at the very least, include CMI to your images to provide you with potentially money damage remedies against copyright infringers; this also applies to international photographers who are pursuing USA-based infringers.

Many IP professionals caution about relying on Binded to protect copyrights; here are some of their responses:

Posted to his blog “Photo Business News & Forum,” John Harrington writes that “Binded (a rebranding of a company called Blockai) is a startup offering up worthless ‘certificates’ - selling snake oil to the creative masses,” and that “Blockai offers no additional [copyright] protections for the creator. A creator would have more protection wearing a torn prophylactic”: http://photobusinessforum.blogspot.com/2017/05/binded-unwanted-s-for-art...

Harrington’s remarks are echoed by others: https://petapixel.com/2017/06/20/no-blockchain-doesnt-replace-copyright-...

Ed Greenberg (IP litigator) & Jack Reznicki (photographer) via PetaPixel (read the comment sections): https://petapixel.com/2017/05/27/blockai-rebrands-binded-raises-950k-cop...

Carolyn Wright, copyright attorney, is also not a fan of Binded:
http://www.photoattorney.com/bound-bindedcom/

For International photographers: I have to believe that a copyright Certificate of Registration issued by the US Copyright Office could be used in Berne signatory countries to prove an international photographer’s authorship and copyright ownership. I also have to believe that a court outside the United States would much more likely respect & honor documents issued by the US Copyright Office vs. those produced by Binded and other time-stamping entities.

Rex Jones's picture

In the realm of legal practices and the spectrum of laws that protect people on both sides of the copyright there is a massive amount of information that needs to be understood. I was unaware of the facts you listed concerning Binded. Thank you for commenting, you shared some incredibly valuable information. I will definitely be taking some time to go read through each of the sites for which you provided links. Particularly for this topic, I am happy to get any help I can to better understand these laws. :)

Hi Rex, I forgot to mention the other excellent links you listed: Those all came from the US Copyright Office—it is the authoritative source of US copyright!

I also searched the US Copyright Office’s database to see if you have any works registered under your name—I didn’t see any (please tell me if I’m mistaken).

I would encourage you and other creatives to begin “timely” registering your works (as UNpublished, before the infringement occurs, or within three-months of first-publication) to have LEVERAGE to push USA-based infringers to settle out of court. If the infringer doesn’t settle and you prevail at trial, the infringer is now liable for up to $150,000/work AND potentially your attorney fees and costs. I’ve registered virtually all my images since the last 15-years, something like 145,000 images and videos (John Harrington has registered one-million images!). I use the UNpublished strategy vs. registering published works—it’s easier for me, and currently, you can group an UN-limited number of UNpublished works in a $55 Standard eCO (on-line) Application. However, you cannot mix published and unpublished in the same registration. Good Luck!

Rex Jones's picture

That is all incredibly helpful information, thank you for sharing! The whole reason this article came into being is simply because I was researching the topic for my own images. You are right, I don't have anything listed in the US Copyright Office’s database at this moment. I am currently culling my images into those two categories, unpublished and published so as to batch submit them in only a couple of registrations. :) Thank you for taking the time to share your knowledge, I don't think that I will be the only one who appreciates it.

Rex, one last thing: Include detail captions (keywords) when registering unpublished works. In the eCO on-line application, use “content titles” (see “title of work” section).

So, if you’re registering 673 unpublished photographs, include 673 titles (it’s OK to use the same title for similar images). I sequentially number my images (or use the image file number) followed by its title. My sequentially-numbered content titles will match-up with my image (number) that I’m registering (uploading to the Copyright Office’s eCO voyager system).

Including titles makes your images searchable via the Copyright Office’s on-line database, and helps prevent a licensee from claiming your work is orphaned.

Title examples: Image 1--Downtown St. Louis, Missouri at evening dusk with Gateway Arch and building in foreground during Fourth of July fireworks celebration; Image 2--Downtown St. Louis, Missouri at evening dusk with Gateway Arch and building in foreground during Fourth of July fireworks celebration with crowds taking pictures of fireworks and vendors selling light-up glow rings; Image 3--approx. 100 Canada Geese birds flying in V-shape pattern under blue skies; etc. Each content title field is limited to approx. 1900 spaces & characters; you can use new fields to enter additional content titles.

Importantly, the Copyright Office writes that “…to make the most bulletproof [copyright] registration [application],” include content titles.

I just replied to Fstopper’s Patrick Hall above comments with additional copyright information you and others might find helpful.

John Belknap's picture

I was recently notified that a self portrait of myself & a model was being used for an online sex article. I was never asked or would've never known if someone didn't see it. Do they have the right to use it?

Rex Jones's picture

The only way they would have the rights to use that is if you gave them written permission to do so. If they do not have written releases, both from you as the photographer, and from you and the woman as models, then they are in violation of copyright law. Unless, of course, you have published the image under a Creative Commons license that would allow anyone to use it.

I didn’t see any registered photograph copyrights filed under your name at the US Copyright Office—please tell me if I’m mistaken. You have much leverage if you images are timely registered.

Did the allege infringer remove, cover, or alter your watermark, metadata, or other Copyright Management Information (CMI) to hide the infringement? If so, you could have a DMCA (CMI) violation against them (a timely registered work is not required for this action).

The DMCA also permits you to get the infringing images removed via the hosting’s ISP, notwithstanding any Fair Use claims.

Instead of looking for advice on this and other social media forums, you need to IMMEDIATELY visit with a copyright litigator--NOW!