Question one in a copyright infringement case is whether the work has been registered with the U.S. Copyright Office. This is because -- even though photographers have copyright protection from the moment they shoot - the protection is often useless with regards to getting infringement damages paid, if the image was not registered prior to the infringement (or within three months of the image's first publication).
Registration is required to recover attorney's fees and statutory damages -- which is often the stick that motivates infringers to pay without litigation. Courts may award statutory damages between $750 and $30,000 per work; the minimum damage award is reduced to $200 if the infringement is innocent; and the maximum increased to $150,000 if willful. Willful infringement usually means knowledge of copyright protection, which is a good reason to place a copyright notice on all of your work.
Courts have enormous discretion in awarding statutory damages, and usually make a gestalt judgment considering factors such as compensation, deterrence, the value of the copyright, and the infringer's state of mind. Even with a finding of willful infringement, a court recently found that a $30,000 statutory award was appropriate. [See Getaped.com, Inc. v. Cangemi, Shields and Ski & Cycle Hut, 188 F.Supp.2d 398 (D.C.N.Y. 2002).]
Without registration, actual damages or profit must be proven. For photographs, "actual damages" is often the fair market value of a license of the image; and profits, especially if the work was used in advertising, are difficult to prove.
Copyright C 2002
Stephen Filler is an attorney in New York City (www.nylawline.com) whose practice focuses on intellectual property, copyright, trademark, technology, media, contracts, corporate and photography law. His office is located at 400 Madison Avenue, Suite 14D, New York, NY 10017, 212-204-3508, sfiller@nylawline.com.
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Copyright:
How Long
Does It Last?
The term of copyright for a particular work depends
on several factors, including whether it has been
published, and, if so, the date of first publication.
As a general rule, for works created after January
1, 1978, copyright protection lasts for the life
of the author plus an additional 70 years. For
an anonymous work, a pseudonymous work, or a work
made for hire, the copyright endures for a term
of 95 years from the year of its first publication
or a term of 120 years from the year of its creation,
whichever expires first. For works first published
prior to 1978, the term will vary depending on
several factors. To determine the length of copyright
protection for a particular work, consult chapter
3 of the Copyright Act (title 17 of the United
States Code). More information on the term of
copyright can be found in Circular 15a, Duration
of Copyright, and Circular 1, Copyright Basics.
Do I have to renew my copyright?
No. Works created on or after January 1, 1978,
are not subject to renewal registration. As to
works published or registered prior to January
1, 1978, renewal registration is optional after
28 years but does provide certain legal advantages.
For information on how to file a renewal application
as well as the legal benefit for doing so, see
Circular 15, Renewal of Copyright, and Circular
15a, Duration of Copyright.
One of the most important copyright concepts for photographers is “work made for hire,” and it’s one that many photographers do not fully understand.
A fundamental copyright principle is that copyright ownership originally belongs to the creator -- the person who fixes the work in tangible form. Generally, the person who clicks the camera shutter owns the initial copyright in the resulting photograph.
The major exception is if the photograph is a “work made for hire,” which can happen in two ways. First, if the person shooting the photograph is working within the scope of employment -- for example a newspaper’s employed staff photographer - the work will be a “work made for hire,” owned by the corporation.
In Writing
Second, a work may be a “work made for hire” if the photographer and the person ordering the work expressly agree in writing that that the photograph is a “work made for hire.” In such case, the photograph must also be “specially ordered or commissioned,” and must fit within one of the categories listed in Section 101 of the Copyright Act (a common category involving photographs is that the photos are a contribution to a collective work, such a magazine or newspaper). Because a court may find a work not to be a “work made for hire” even if that’s what the parties intended, a good “work made for hire” agreement will state that if the work is deemed not to be a “work made for hire,” the agreement will create an assignment of ownership from the photographer to the person ordering the work.
A trap may occur if a photographer does business through a corporation. In such case, the photographer must make sure that any copyright registration is consistent with how the business operates. For example, if a photographer takes “work made for hire” photographs as an employee of his/her corporation, the copyright registrations for such photos should indicate that the copyright is owned by the corporation. A court recently dismissed a photographer’s copyright infringement case because the copyright registration listed the photographer as owner, when the work was a “work made for hire,” and the corporation should have been listed. Morgan, Inc. v White Rock Distilleries, Inc., 230 F. Supp.2d 104 (D. Maine, 2002).
For more information on “work made for hire,” see United States Code, 17 United States Code Section 101, 201(b), Community for Creative Non-Violence v. Reid, 109 S.Ct. 2166, 490 US 730, 104 L.Ed.2d 811 (1989), and Copyright Circular 9, .
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Photographs Made by Employees
A photograph created by an employee within the scope of his or her employment is a work made for hire. The employer for whom the photograph is made is the "author" of the work for copyright purposes and is the owner of the photograph's copyright (unless the employee and employer have agreed otherwise).
Examples:
As part of his job, John, an employee of Big Co.'s training division, created an annual report using Big Co.'s facilities. Even though John created the photos, Big Co. is the author for copyright purposes. Big Co. owns the copyright in the photos(unless John and Big Co. have agreed in a signed contract that John owns the copyright to the pictures).
The work made for hire rule does not give employers ownership of photographs made by employees outside the scope of their employment.
Darryl, an engineer at Productions Inc., produced a work-related photo essay on his own initiative on weekends. Because Darryl did not take pictures within the scope of his employment, the work made for hire rule does not apply. If Productions wants ownership of the copyright in the photo essay, it must get an "assignment" from Darryl.
This article is provided with the understanding that neither the author nor the publisher is engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
Dianne Brinson, a copyright attorney, received her law degree from Yale Law School and her B.A. from Duke University. A former law professor, Dianne currently teaches Law for Internet Users at San Jose State University's Professional Development Center. For more information, read the book Multimedia Law and Business Handbook, by J. Dianne Brinson and Mark F. Radcliffe (available from Ladera Press for $44.95 plus shipping, (telephone: 800-523-3721).
Q: I'm a photo researcher for a small publishing house. I'm trying to clarify my understanding of plagiarism and copyright infringement. We have a photographer's permission to make and use a drawing of his original photo. It is a picture of a doe standing in a field, interacting with her fawn. The drawing closely copies the photo. My question is, would copyright infringement be an issue if permission had not been obtained? My understanding is that facts cannot be copyrighted, but artistic design that includes facts, may be. Using the deer photo/art as an example, I assume the shape of the deer is fact and therefore not copyrightable. Is the drawing an example of copying artistic design, or only copying fact? If this is not a copyright infringement, is it plagiarism if the artist were to pass it off as his or her own work without acknowledgement? If this would have been copyright infringement, could changes have been made that would eliminate the infringement?
A: First, let me address your question about plagiarism and copyright infringement. Plagiarism is the act of taking someone's ideas, photos, writings, etc. and representing them as your own original work. Plagiarism and copyright infringement are two separate and distinct acts. Plagiarism is wrong based on ethical, rather than legal, definitions. Copyright infringement is an illegal act. Plagiarism may also be copyright infringement; only copyright infringement is punishable by law.
Would copyright infringement be an issue if permission had not been obtained to make the drawing from the photo? Yes, most definitely. The drawing and the photo are very similar in content. One of the exclusive rights of a copyright holder is that only he or she can grant permission to make and use a derivative work.
You are right, facts cannot be copyrighted. But you are not really dealing with facts here. You are dealing with an actual photograph. A work must be in fixed form in order to be copyrighted. In this case the photo is the fixed form.
Changes could be made to the drawing in order to avoid copyright infringement, but the drawing would have to be substantially different from the photo. For example, another fawn could be added and the doe could be shown laying down in another direction.
Since you have permission from the person who took the photo to make and use a derivative (drawing) of the work, it is neither copyright infringement nor plagiarism.
Rohn Engh, veteran stock photographer and publisher of "PhotoRESEARCHER Newsletter," has provided on-line information to photobuyers, photo researchers and photo editors for two decades. For info: http://www.photosource.com/photobuyer/.
Of
Interest
ANOTHER RIGHTS GRAB ?
-- Blackpool photography 'rights grab' furore (UK). A council has hit back at criticism over potential exploitation of photo competition entries, saying that use of amateur pictures is becoming 'commonplace' on TV and in other media.
Though rules for Blackpool Council's 'Love Blackpool' competition state that copyright remains with the entrant, they also grant the council 'a perpetual, royalty free, non-exclusive, sub-licensable right and licence to use, exhibit, reproduce, modify, adapt, publish, distribute... make available to the public and exercise all copyright and publicity rights...'
Among those livid at the rules is local resident Myk Ripley, one of Amateur Photographer's (AP) website forum moderators.
http://www.amateurphotographer.co.uk/news/
Blackpool_photography_rights_grab_furore_
news_269875.html ... Full
Story
CAMERA CATCHES NURSING HOME WRONGDOING. Deb Hamilton suspected her grandmother Armeda Thomas was being mistreated at the facility, so she set up a hidden camera that captured some disturbing evidence, such as an aide walking in with a meal then eating the food herself as Thomas laid in bed.
http://www.lex18.com/Global/story.asp?S=9466418&nav=EQlp
WATERMARKS, er uh, FINGERPRINTS. - The PhotoshopDisasters blog has a collection of actual ads made from images that are overlayed with the iStockphoto watermark.
TAKEAWAY: Who knows, in the future, maybe watermarks will become designer symbols like an NIKE check mark or “AS SEEN ON CNN.”.
http://www.pdnpulse.com/2008/12/are-people-scoffing-at-your-watermark.html
Jerry Kennelly, who sold his Stockbyte imaging business to US-based Getty Images two years ago for $135m (USA) at the time), is preparing to launch a major new online venture backed by a multimillion euro investment.
TAKEAWAY. The Microstock model was good to Kennelly. Let’s see what he comes up with in 2009.
http://www.ukpreneur.co.uk/1442/a-light-shines-brightly-for-kerry-entrepreneur/
WHO IS THE WINNER ? Win a Trip For Two to Maui - By just entering this contest Popular Photography takes exclusive license of your photo. Read the contest rules, "exclusive" license means 'you' can't use your photo.
http://www.photoattorney.com/
