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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22 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 Dunkelberg'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.

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.

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.

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.