Image Copyright Considerations
It’s the dirty word that creeps in the way of some of our most brilliant shots.
The perfect suit making the deal at the Commodities Exchange, Shamu midair or your moment of glory holding an Oscar or Emmy only to find out: infringement! Most of us are game, sure we’ll play by the rules but just what are those rules exactly and where exactly can you find them? After hours, days and weeks it only leads to finding out it’s a never-ending battle and search. Despite this little world of the web, there’s yet to be a concise place where you can fill your brain with the rights and wrongs. It’s forever changing, and this article may become out of date by the time it’s published, but before time's up we’ll work to fill in some blanks so read quickly before this expires.
In literal terms copyright is a collection of rights that apply to the producer or special agent of a copyrighted work. By force and legality protecting the reproduction, performance and distribution of an original image, photograph, painting, casting, film or audio recording, literary, dramatic or musical works.
It already seems to take on an air of confusion, heavy on the surface and delicate to the notion. The laws of presiding courts differ between legislation and the grassy knoll of interpretation. As stock photographers, we have the added complexity and expectation to control our copyrights. The license agreement acts as our legal aid and savior, we grant certain usage rights, while limiting the number of reproductions or territories. The copyright law in the country of origin where the work was created usually supersedes any conflicting copyright elements imposed contractually, and defines how we limit the publication of copy-written works. So pick where you want to park before you get out of the car.
A photographer's image is automatically copyrighted once "fixed in a tangible medium of expression". Back in ’89 a revision to the copyright act allowed for the reproduction of an image without a copyright notice. The human way of pushing the envelope, if it isn’t defined it’s allowed.
Pre 89 works snuck into public domain, or copyright free by publication without copyright notice. Of course on my travels to Central and South America they prefer the term "all rights reserved". This allowed for an "innocent infringer" to "unknowingly" copy a work based on the misinformation that no copyright was held. In most cases the innocent is compelled (by persuasion) to stop using the derivative work and fork over the cash to the copyright holder. In others, the copyright holder is compelled to grant a license for a fee so the innocent can maintain their reputation.
You're likely familiar with the term "derivative", but are perhaps unsure if you're inches away from public humiliation for basing your work on something preexisting, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. Cut it how you like, a work consisting of editorial revisions, annotations, elaborations, or other modifications, which as a whole, represent an original work of authorship, is a "derivative work".
To save face you may try to get your claim to copyright, but try all you like - derivative works are not copyrightable and therefore can never display a copyright notice and theoretically should not be used as stock photography. (Please take note here).
Many photographers are paid for documentation purposes that may result in derivative works, but under the "work made for hire" clause, the photographer retains many elements of copyright.
Generally there are two ways a work could be derivative:
1. A colored, cropped or somehow altered or transformed copy of a pre-existing image.
2. A copy of portion or a copy of a pre-existing photo with some alteration of the expressive elements.
Other derivative work includes:
2. A photograph of a photograph
3. Any work recast, transformed, or adapted from an original
4. Identical copies are not deemed derivative, but are also not copyrightable
From the moment a work is created it is protected by copyright for 70 years after the photographer's death. Copyright can be transferred or renewed by the photographer's spouse or next of kin. Under the "works made for hire" clause, copyright protection extends to 95 years from the first time the work is published or 120 years after the creation date, whichever is first. Under the "works made for hire" clause, the copyright is transferred to the client, person or entity that hired the photographer.
If a photograph created 70 years prior (from 1934) does not have the copyright transferred or renewed, its possible that the image could be passed into the public domain. In this case, copyright can not be claimed from the public domain for the original image. However, if a copy of the original is made, the copy can be copyrighted.
On the other end of the stick, there is trademark, allowing protection of short phrases, distinctive words, titles, slogans, symbols, logos and other devices used to distinguish products, services and image. Preventing others from using the name of your company, whereas the title of a photograph can not be copyrighted and therefore has no protection. Copyright will protect the artistic expression of a logo, but trademark is designed to protect an entity's identification of specific products or services.
Patents allow for the protection of inventions and/or distinct design characteristics. For example the fins of a car or the curve of molded plastic side panels of a car door could be patented as a distinct invention. The purpose is to protect the inventor's interest and keep others from making commercial use of those ideas. Patents last for 20 years after the date of application. It's further possible that a trademark could further protect the interests of the business if the product is distinguished by the design traits.
The reasons that the work is not protected include:
1. The term of copyright for the work has expired.
2. The author failed to satisfy statutory formalities.
3. The work is a work of a government body/entity not able to hold copyright.