Browncoat
Senior Member
PART I - COPYRIGHT
If you're the anxious type who doesn't like to read walls of text, here's the Cliff's Notes version:
Are your photos REALLY protected by copyright?: In a word, YES.
Let me preface this post by stating the obvious first: I am not a copyright lawyer. All the information contained here is from research and personal experience. This is not a substitute for real legal advice.
I'm constructing this thread because it's something that's never been addressed on these forums in any official capacity. There are tons of posts on these boards about watermarks, copyrights, and image protection from theft. Also threads about rights grabs by photo contests, stock agencies, Flickr, 500px, and crowd sourced photo submissions.
Hopefully this short Q&A will answer any questions you may have about your rights and protections. Furthermore, what rights and protections you may be forfeiting when you upload your photos online to the above mentioned services and/or contests.
Q: What is a copyright?
In terms of photography, it means owning property (your photo). With that ownership, certain rights are granted:
Q: Who owns an image copyright?
For the most part, the person who pressed the shutter button owns the copyright. The exception to this rule is called "work for hire". For example, a photojournalist working for a newspaper. There is a specific contract that must be signed stating that the photographer agrees to hand over image copyright to the newspaper. This is part of an employer/employee contract. Performing normal photography services for clients is NOT considered work for hire - such as portraits, wedding photography, etc.
Q: Do I have to register my photos with the US Copyright office?
This is where things can get sticky. You always retain copyright protection for your work, registered or not. However, if someone steals your photograph, you can only legally recover actual damages for the copyright infringement instead of statutory damages. The court will calculate damages based on your normal fees, and if any profits were made on your image by the defendant. If you do not normally charge for your work, it would not be worth it to you to pursue damages in court.
Q: Should I watermark my photos with a copyright symbol?
While completely unnecessary, it can help deter image theft. You can prove ownership of the photograph without a watermark, and it's a good idea to digitally embed copyright information in the image EXIF data.
A proper copyright should be displayed as follows: © 2013 John A. Smith
<copyright symbol> <year image was first produced> <full name>
Using your business name or some generic watermark like "Bob's Photography" is just a watermark, and not a copyright notice. Additionally, be sure to use the official copyright symbol and not (c). The word "Copyright" or even abbreviated as "Copr." can be substituted for the symbol.
Q: What is "Fair Use"
Fair Use is a provision in copyright law that allows the use of a copyrighted work without the owner's permission. Fair Use is granted when the use of the material does not infringe on the owner's rights, and is not an exploitation of the material.
Some examples: criticism, comment, educational purposes, news reporting, and other non-profit use.
Q: What can you do if your photograph is used without your permission?
1 - Nothing. It's often not worth getting your shorts in a wad about. Taking legal action is expensive, and often not worth it.
2 - Request photo credit in writing. Your best course of action is simply to ask for credit, and possibly a link to your website.
3 - Write a DMCA takedown notice. More on this in the next section.
4 - Write a Cease and Desist letter. You can request payment for licensing of your image if you would normally charge for its use. Most photographers who do this request 2-3x above their normal licensing fee. While this is not a court-approved practice, it has often held up in document court cases.
5 - Hire a lawyer and file a Copyright Infringement lawsuit. Don't even bother with this unless you have actually registered your images with the US Copyright office, it's just not worth it financially. The current statutory damages maximum is $150,000...but you can only collect actual damages with an unregistered image.
Q: What is the DMCA (Digital Millennium Copyright Act)?
There is a lot of stuff in that thing, but the part photographers need to be concerned with is this: if your photograph is published on a website, you can not hold the ISP (service provider) liable for damages, as they often have little to no control over what actually gets put up on a website. However:
The ISP must remove material from the website if it is protected by copyright.
This is very real, and it does work. I've issued DMCA takedown notices on Facebook for people using my images, and they were taken down very quickly. The DMCA also offers some compensation if the website owner digitally removed the copyright data from your image, up to $25,000.
I would argue that the DMCA is the most powerful tool in your legal arsenal as a photographer, because it's something you can handle yourself without having to hire a lawyer.
Q: I just photographed someone else's artwork. Who owns the copyright?
Not you! If you're in an art museum snapping away, you can not claim ownership. Copyright applies only to the original creator of the material.
Q: Can I register my images with the US Copyright office?
Yes! Do it here. The fee is $35, and you can bulk upload images by filing them all under a single claim. Most pros I know bulk upload images quarterly, or 3-4 times per year.
If you're the anxious type who doesn't like to read walls of text, here's the Cliff's Notes version:
Are your photos REALLY protected by copyright?: In a word, YES.
Let me preface this post by stating the obvious first: I am not a copyright lawyer. All the information contained here is from research and personal experience. This is not a substitute for real legal advice.
I'm constructing this thread because it's something that's never been addressed on these forums in any official capacity. There are tons of posts on these boards about watermarks, copyrights, and image protection from theft. Also threads about rights grabs by photo contests, stock agencies, Flickr, 500px, and crowd sourced photo submissions.
Hopefully this short Q&A will answer any questions you may have about your rights and protections. Furthermore, what rights and protections you may be forfeiting when you upload your photos online to the above mentioned services and/or contests.
Q: What is a copyright?
In terms of photography, it means owning property (your photo). With that ownership, certain rights are granted:
- to display the photograph publicly
- to create derivitive works - convert your photo into a collage or pencil drawing for example
- to reproduce the photograph
- to distribute the photograph via sale - either in whole or part (such as with limited use licensing)
Q: Who owns an image copyright?
For the most part, the person who pressed the shutter button owns the copyright. The exception to this rule is called "work for hire". For example, a photojournalist working for a newspaper. There is a specific contract that must be signed stating that the photographer agrees to hand over image copyright to the newspaper. This is part of an employer/employee contract. Performing normal photography services for clients is NOT considered work for hire - such as portraits, wedding photography, etc.
Q: Do I have to register my photos with the US Copyright office?
This is where things can get sticky. You always retain copyright protection for your work, registered or not. However, if someone steals your photograph, you can only legally recover actual damages for the copyright infringement instead of statutory damages. The court will calculate damages based on your normal fees, and if any profits were made on your image by the defendant. If you do not normally charge for your work, it would not be worth it to you to pursue damages in court.
Q: Should I watermark my photos with a copyright symbol?
While completely unnecessary, it can help deter image theft. You can prove ownership of the photograph without a watermark, and it's a good idea to digitally embed copyright information in the image EXIF data.
A proper copyright should be displayed as follows: © 2013 John A. Smith
<copyright symbol> <year image was first produced> <full name>
Using your business name or some generic watermark like "Bob's Photography" is just a watermark, and not a copyright notice. Additionally, be sure to use the official copyright symbol and not (c). The word "Copyright" or even abbreviated as "Copr." can be substituted for the symbol.
Q: What is "Fair Use"
Fair Use is a provision in copyright law that allows the use of a copyrighted work without the owner's permission. Fair Use is granted when the use of the material does not infringe on the owner's rights, and is not an exploitation of the material.
Some examples: criticism, comment, educational purposes, news reporting, and other non-profit use.
Q: What can you do if your photograph is used without your permission?
1 - Nothing. It's often not worth getting your shorts in a wad about. Taking legal action is expensive, and often not worth it.
2 - Request photo credit in writing. Your best course of action is simply to ask for credit, and possibly a link to your website.
3 - Write a DMCA takedown notice. More on this in the next section.
4 - Write a Cease and Desist letter. You can request payment for licensing of your image if you would normally charge for its use. Most photographers who do this request 2-3x above their normal licensing fee. While this is not a court-approved practice, it has often held up in document court cases.
5 - Hire a lawyer and file a Copyright Infringement lawsuit. Don't even bother with this unless you have actually registered your images with the US Copyright office, it's just not worth it financially. The current statutory damages maximum is $150,000...but you can only collect actual damages with an unregistered image.
Q: What is the DMCA (Digital Millennium Copyright Act)?
There is a lot of stuff in that thing, but the part photographers need to be concerned with is this: if your photograph is published on a website, you can not hold the ISP (service provider) liable for damages, as they often have little to no control over what actually gets put up on a website. However:
The ISP must remove material from the website if it is protected by copyright.
This is very real, and it does work. I've issued DMCA takedown notices on Facebook for people using my images, and they were taken down very quickly. The DMCA also offers some compensation if the website owner digitally removed the copyright data from your image, up to $25,000.
I would argue that the DMCA is the most powerful tool in your legal arsenal as a photographer, because it's something you can handle yourself without having to hire a lawyer.
Q: I just photographed someone else's artwork. Who owns the copyright?
Not you! If you're in an art museum snapping away, you can not claim ownership. Copyright applies only to the original creator of the material.
Q: Can I register my images with the US Copyright office?
Yes! Do it here. The fee is $35, and you can bulk upload images by filing them all under a single claim. Most pros I know bulk upload images quarterly, or 3-4 times per year.
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