What’s the Deal With Copyright?
I’m glad you asked, Jerry. Let’s talk photography copyright. When you create an original work, like a photograph, painting or manuscript, you immediately own its copyright (unless you signed it away beforehand, but we’ll get to that later). That means if anyone wants to publish or use your work in any way, they have to go through you. The best way to protect your copyright is to register your works with the US Copyright Office.
“If I already own it, why do I need to register it?” First of all, it helps to create clear ownership of intellectual property in the eyes of the law. Also, it greatly affects your recourse if someone infringes your copyright (uses your work without permission). Basically, it comes down to this: If you don’t register and someone infringes your copyright, you’re entitled to sue them for only fair market value. If your copyright is registered, not only are you entitled to fair market value, you can sue for damages and attorney’s fees as well.
It’s also important to note that when your work is infringed, the burden of proofs falls on the infringer, not the creator. Read: They need to prove they have permission to use your work. You don’t have to prove they don’t have permission.
Personally, I encounter copyright infringement from time to time. However, I don’t believe in any of my circumstances it was malicious. It’s typically someone ignorantly sharing a photo with someone else who doesn’t know they can’t just use it for whatever they want. I don’t look at copyright registration as a way to cash in on these situations. I see it as a tool to expedite a payment of fair market value. If a company or individual uses a photo of mine without permission, and they know they could be facing legal fees and a six-figure damage payment, they are quick to pay the appropriate usage fees.
What is a Work-for-Hire?
There are situations where you could give up your copyright before you create your work. Typically, this is in a “work for hire” situation. From wikipedia: “A work made for hire is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, “if a work is ‘made for hire’, the employer—not the employee—is considered the legal author.”
A newspaper photographer is under a work for hire agreement, so all works created for a newspaper are owned by that newspaper. This is the case not only for their staff photographers, but often for freelancers as well. The justification for newspapers owning their staffers’ copyrights is that they provide photographers with a salary, health benefits, a full set of cameras gear and computer/editing equipment. They also cover mileage, expenses and other travel fees. However, as a freelancer, they often simply pay a single assignment rate, which in my opinion, doesn’t give them a proper claim to own a freelancer’s copyright.
Ask to Change the Language
Magazines and other editorial publications will commonly ask you to sign a contract stating usage terms before they’ll assign you a shoot. Sometimes the contract will assign them your copyright. DON’T SIGN IT! Personally, I never transfer my copyright. And I do mean never. Photo editors are usually willing to remove that language from the corporate contracts they receive from their lawyers. There are occasionally jobs I turn down because they won’t change the language, but it’s rare.
Consider this Scenario…
You shoot for Indiana Football Magazine. They hire you to cover the high school football state championship. Johnny Quarterback throws a Hail Mary to win the game. He runs right in front of you to celebrate with teammates and you’re the only photographer there to get the definitive shot. You have a nice shot, a few hundred dollars from the assignment and a lot of pats on the back for a job well done. Fast forward 10 years. Johnny Quarterback is an NFL star and is about to appear in the Super Bowl. The NFL decides to promote the event using photos of the star players in high school. They love your state championship photo. They’re offering to pay $15,000 to use the photo in a national ad campaign leading up to the Super Bowl. That money goes to the copyright owner, Indiana Football magazine. And if you misrepresent that you own the image, or even just forgot you transferred the copyright, you’re the one infringing the copyright.
I realize that’s a very specific example and may seem unlikely, but if you’re working as a professional photographer, frequently people will find images you shot in the past and want to use them. By giving up copyright, you’re giving up a solid source of future income. Your early years in the business may only see small amounts here and there for an old image, but the longer you’re around, the more people look to you for your archive. Ten years in, you can be making a few thousand a year from your archive. I spoke with a long-time photographer who had a 30-year-old image purchased out of the blue for an international ad campaign for over $20,000.
How to Register
Visit www.copyright.gov to register your images. They have detailed instructions about how to do it. You can mail works or submit them online. For some works, like photos, you can submit them as a compilation to register many works at once. Below is a link to see a compilation I recently registered. I don’t watermark the version I send to the Copyright Office, but I did watermark this one I’m sharing online…
It would be remiss of me not to mention the American Society of Media Photographers [ASMP], of which I’ve been a member for the last 8 years. ASMP membership is a great way to learn about, and advocate for, copyright. Click here to check out their free copyright tutorial for more in-depth information.
Not an Attorney
I need to mention that I’m in no way a legal expert. I write this as a photographer who regularly registers his copyright and has a general understanding of the concept. If any legal experts read this and have input, you can leave a comment or send me an email and I’ll make corrections.
I originally published this post in 2015. Three years later I encountered a series of major infringements by a (now former) client. I filed a lawsuit and having my copyrights registered made all the difference in getting everything sorted out quickly.