lizphotos.com Broward County Photographer, Photography in South Florida

1. What is copyright?

Copyright is a right, granted to you by law, to control the copying, reproduction, distribution, derivative use, and public display of your photographs, and to sue for infringement of your work.

2. How do I obtain a copyright?

This right begins at the moment you create the latent image, whether on film or digital media. Copyright ownership is automatic when you make an image. The one exception to this is when your work is considered work for hire.

3. Are all images copyrightable?

Although most images are copyrightable, some are not. To be copyrightable, images must be original. Originality is essential to copyright. If you exactly copy a photograph, the copy cannot be copyrighted, since it has no originality. (In fact, if the first photograph is copyrighted, you would need the original photographer's permission to copy it.)

4. Can ideas be copyrighted?

Ideas, themes and concepts are not copyrightable, only the original expression of those ideas, themes and concepts in some tangible form, like a photograph, can be copyrighted. You might have an idea for a great photograph, but you get no copyright until you make the actual photograph. An art director might have a great concept, but that concept cannot be copyrighted. Having an idea or concept does not entitle one to a share of the copyright of the photograph. The copyright belongs to the one who makes the tangible expression, like a photograph, of the concept or idea.

5. Is copyright automatically included in the sale of a print, negative or transparency?

No, it is not. Copyright is separate and distinct from the tangible material in which the image is captured or stored. The photograph can be owned without owning the right to use it. Generally, unless otherwise restricted at the time of sale, the ownership of the photograph entitles its owner to display it.

6. What is publication?

The copyright law states: "Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” That language can be simplified for photographers as follows: "Publication" is the distribution of copies of images to the public by any means, such as a brochure, magazine, advertisement, website, etc. It is also the distribution of images to others to make a further distribution, or a public performance, or a public display, so sending images to agents and agencies can constitute publication. A public performance or display of an image does not of itself constitute publication, but offering it to a group of galleries so they can display it does. top

7. What is copyright registration?

Copyright registration is filing notice of your copyright to images and copies of them with the U.S. Copyright Office in Washington, D.C.

8. Why should I register my copyrights?

Although registration is not required to own the copyright, there is one instance in which you must have a registration and another when there is a definite advantage to registration. When legal action is necessary to remedy a copyright infringement, the image must be registered before the legal action can be started. This registration can be made after the infringement occurs, but it is better to be registered before an infringement. If you register before the infringement or within three months after the date of first publication, even if after infringement, you will be able to sue for statutory damages, which are up to $150,000 per infringement, and your legal fees. top

9. How often should I register?

Cautions about registration: This is your choice. However, the owner cannot obtain special remedies (statutory damages and attorney’s fees) unless registration was made before the infringement commenced or within 3 months after first publication of the work. To be certain that your application, deposit, and fee are received in the Copyright Office within 3 months of publication of the earliest published photograph within the group, you may wish to register groups of your photographs more frequently than once every three months.

10. How do I register my copyrights?

The registration process is governed by government regulations. The regulations require that you identify whether the images being registered are published or unpublished. For information on how to register click here.

11. What is infringement?

A copyright is infringed when someone used your image in an unauthorized manner that violates one of your copyright rights (control the copying, reproduction, distribution, derivative use, and public display.) Copyright infringement is a violation of federal law. An infringer may be subject to pay damages to you.

12. What should I do if I think my copyright is infringed?

Speak with a person who has a good knowledge of copyright. Not all attorneys are experienced in copyright law. Be sure any person you talk to has reasonable credentials to advise you. Inexpert advice is abundant, and it can be self-defeating, if followed. ASMP members should feel free to contact the ASMP national office staff for assistance. Your advisor should guide you on your next steps in way that is appropriate for the specifics of the situation. top

13. What is a copyright notice, and how do I do it?

Copyright notice is a way of saying: This is my work - if you want to use it, come to me. This stance reinforces the asset value of your work and alerts everyone that you are prepared to protect that value. Copyright notice consists of the letter "c" in a circle © followed by the date of first publication and the photographer's name. For example, © 2001 Pat Photographer. The word "Copyright" or "Copr." can be substituted for the © symbol. Either form is recognized, but use of the © symbol can give additional international protection. Although all three are acceptable it is generally thought that © 2001, (Creator's Name) is the most widely recognized in the international community. The words "All Rights Reserved" immediately following the copyright notice can also give further international protection.

14. Do I have to use a copyright notice?

ASMP recommends that all photographs carry a copyright notice, but it is not required. The lack of notice could provide an infringer with a defense of "innocent infringement". This defense could seriously limit the recovery of damages in an infringement claim.

15. How can my client obtain the copyright to my photographs?

Clients can obtain ownership of the copyright by either Work For Hire or a transfer of copyright.

16. What is a transfer of copyright?

The legal definition of a transfer of copyright can be found here.

17. What is Work For Hire?

Work for hire is another way the client can be the copyright owner. The difference between work for hire and a copyright transfer is rather simple. In the case of a copyright transfer you own the copyright until you transfer it. In a work for hire situation you never own the copyright. The client owns it from the moment the work is created, and the client is by law the author of the photograph. Work For Hire can only be obtained under certain circumstances. To review those circumstances click here.

18. When is a copyright governed by Work For Hire?

Work for hire exists automatically in the case of an employee taking photographs for the employer. As provided in the copyright law, no agreements are required. An independent contractor ("freelancer") can do a work for hire only in certain circumstances. First, the work must be commissioned-that is specifically ordered by someone, and if it is commissioned, it can be a work for hire only if the photograph comes within one of the nine specific categories enumerated in the copyright act as qualifying for a work for hire: as a contribution to a collective work, as a contribution to a motion picture or audio-visual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. The category most frequently involving photographers is a contribution to a collective work such as a magazine or other periodical.

19. What happens when two or more persons collaborate to make an image and both contribute originality?

When individuals work together to make a copyrighted photograph it is likely that they have created a joint work, provided that each person’s contribution to the work is copyrightable on its own, and they intended to merge these into one. Never assume that a work is a joint work. The determination can be difficult. Consult an expert when there is a question over joint ownership.

20. What is Fair Use?

The Copyright Law contains a list of the various purposes for which the reproduction or other use of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. The law sets out four factors to be considered in determining whether or not a particular use is fair: the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes the nature of the copyrighted work amount and substantiality of the portion used in relation to the copyrighted work as a whole the effect of the use upon the potential market for or value of the copyrighted work. The distinction between “fair use” and infringement is often unclear and not easily defined. There are no precise specifications for what may be safely taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. Being a nonprofit educational institution is not an automatic license to use copyrighted material without permission. Applying this doctrine is subjective and complicated. Members should always consult with ASMP before assuming that something amounts to fair use. It’s tricky.

21. What do Buy Out and All Rights mean?

"Buyout" and "all rights" are confusing terms and are thought by some to mean a transfer of copyright. However, these terms have inconsistent trade definitions, depending upon personal understanding, and consequently are not reliable for determining the rights to a photograph. We urge you not to use such terms in licensing clients the rights to your photographs. It is better to clearly state whether or not the copyright is being transferred, and what rights, if any, are being retained. At a minimum an all rights agreement is a permission to use your image as desired, while the copyright remains with you. This gives the client the widest range of rights for the time allowed in the license without a transfer of copyright ownership.

22. How do I contact the Copyright Office?

The U.S. Copyright Office is located at101 Independence Avenue, Washington, DC 20559-6000. Telephone: (202) 707-3000. A 24-hour "hotline" for obtaining registration forms is (202) 707-9100. You can also obtain forms on-line from the Copyright Office at: http://lcweb.loc.gov/copyright.

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