Copyright 101

[Studiodunn]

Copyright infringement is a subject that enters my mind more and more. I have felt an absolute conviction to work from my own photos and sketches.

Things I wonder about (as a relative newbie) are:

Are there any precautionary things that can be done to protect my photos/images/artwork? Should I be more guarded in sharing them?

What does the ugly process look like when someone realizes they have been copied? Are the only ones able to "follow up" those who can afford the legal fees that inevitably go along with the process? With the advent of the internet, what if it's someone in another country (especially photgraphic images)?

I don't want to be too paranoid, but perfect paranoia IS perfect awareness...

[Mike Jordan]

If you are in the US, the single most important thing you can do is register your images with the copyright office. It doesn't take long, it's not that expensive and you can even do it online now. Yes, you do own the copyright to any photo you take, but it's the registration that puts real teeth into being able to protect that copyright. Most people think that just because they have a copyright that that protects them. If you never get infringed on, then you never know the truth. I thought that for years until one day I saw one of my images being used by a woman from an art gallery in Virginia in a national magazine. It wasn't even art, it was one of my dog portraits and she was using it to advertise her new litter of puppies that was the same breed. When I confronted her about it she basically told me so what. I couldn't even get the magazine to do anything without a court order. That's when I talked to my first Intellectual Property lawyer and got the facts of life explained to me about copyright and what I could do and how much it could end up costing me... even if I won.

Because I didn't have my image registered, all costs of taking her to court would have come out of my pocket and although I had a good chance to win, there was no assurance that I'd win damages or anything other than the cost of the image that she used. So it came down to the fact that I couldn't afford to sue her. She did get the ad taken out of the magazine (she had in for a full year and I caught it on the first issue thank goodness), but that was the only concession I got. But I did use the experience to get all of my images registered... about 4 CD's and 30,000 some images. Which paid off very well over the next few years because I had the same thing happen 4 more times by different people for commercial use. This time all I had to do was present them with a bill and tell them to talk to an IP lawyer about infringing on registered copyrighted images if they didn't want to pay it. When your images are registered, if you win, the cost of suing is now laid on the party that got sued. So even if I win but do not get awarded damages, the infringer can still end up paying a hefty price for stealing the image. And when they find out how much that can be, they pay what I'm asking very quickly. I only had one woman who decided to try and bluff it out and that's when I had my lawyer get involved. He only had to write a couple of letters and she also paid up. It set her book profits and publishing date back a bit, but that wasn't my problem.

So registering all of your images is the best insurance you can get to being able to protect yourself and your copyright. And register all of them, not just the ones you think are your best work. What's funny is several of my images that were taken were just test shots where I was showing different lighting techniques I was trying out. But it's amazing what a really good graphic artist can do to a poor image. So register them all since you can get a lot of images on a CD and register them as one registration. You can find out all about it on the web site that the Copyright office has or spend a couple of hundred and go through a IP lawyer. Most even have a free initial 15 minute consultation so you can get an idea about the process and what you can do to protect yourself. It's cheap insurance but oh so worth it if you ever have to pull that ace card out of your pocket.

Mike

[Studiodunn]

I am SO appreciative you took the time to share your experience and insight on this subject. It has been beyond helpful. Thank YOU! Of course it makes total sense to me now that you have explained it so clearly...We register our cars, our canoes, etc...It stands to reason that one should register their images as well. I went to the US Copyright Office's website and see lots of information to sift through there. I can only imagine how much money Uncle Sam generates in fees...Yikes! http://www.copyright.gov/docs/fees.html

Here was a funny question on the FAQ page. Ha!

How do I protect my sighting of Elvis?

Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO). Pay the fee online and attach a copy of your photo. For more information on registering a copyright, see SL-35. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.


A question still swirling around in my head is, how does one even police thier own images? I'm sure it must involve Google in some way. Ahhh...SO much to learn, so little time...It's In the meantime, I'm not out there capturing more images or in my studio making stuff...lol

[Rick Wilton]

google has a great image search option. You can up load an image and google will search the entire web to see if that image is used else where.

http://www.google.com/insidesearch/feat ... image.html

http://images.google.com/



You can down load a google chrome extension file that makes it so you can right click on any image and search the web for any other instances of that image or anything else close.

Friends of mine say it's good for dating websites to see if that supposed image of someone is being used as someone else or another name.

[Studiodunn]

Invaluable information Rick! Technology like that never fails to amaze me. Thank you...

Now comes the hard part..."attempting" to make something WORTH copying...lol

[Morganica]

Question, though: Are you trying to protect the photographs you've taken, the art you make with them, or the fact that you're using them to make art in a certain way?

[Studiodunn]

Question, though: Are you trying to protect the photographs you've taken, the art you make with them, or the fact that you're using them to make art in a certain way?

I think photography is what primarily prompted the line of questioning in my mind. But the line of questioning doesn't end there. It extends to the art made from the photos...

If one translates their own copyrighted image into glass as closely as possible, (assuming there is something special about the composition) would it be recommended/necessary to copyright the glass version of the work as well OR is it enough to have registered the original photographic image??

When the line of questioning spills over into the "process" or making the art a certain way, I am woefully uninformed as well. However, I don't see this as an issue for me yet. Like the vast majority of us, I am doing what has already been done...

[Bert Weiss]

Mike's story is a good one. Essentially the person copying you has the upper hand, in many cases. If you are Disney, you can afford to throw lawyer threats around. I was once thrown off of a campus by a college president, because I explained to him that I had copyrights to the stained glass window I had designed and installed on his campus. It was a Catholic college, and The Sisters of Mercy were who commissioned me to make the window, not the college itself. What I said to the president was simply that I owned the copyrights, I would like it if they printed cards with the image, and all I wanted was some copies. He told me the window was his and tossed me and my photographer off campus. I got a lawyer from Volunteer Lawyers for the Arts to write a letter to the Nuns and the President. The Mother Superior calmed the President down, and we went back and got my photos. They never printed it as far as I know. Fortunately for me the photographer was my best friend, so I did not loose big money from the experience.

Photographs are a clear cut issue. When somebody copies a glass design of yours, a few changes will make it legal, while still being unethical.

[Rick Wilton]

Where is the line drawn on who owns a copyright. If I take a photograph of a downtown skyline and sell prints, what's stopping the building owners, architects or the actual builders from coming after me?

[Bert Weiss]

Where is the line drawn on who owns a copyright. If I take a photograph of a downtown skyline and sell prints, what's stopping the building owners, architects or the actual builders from coming after me?

Issues are different for people and buildings. To publish a photo of a person, you are supposed to get permission. I don't think you need permission to photograph or paint a building. The copyright is about the image you create, not the subject of the image.

Unless contracted to the contrary, an artist owns an image and the right to copy it. So if you make a painting, photograph it, and sell the painting to a client, you the artist, retains copyright and can sell prints of the image. Now, lets say you go to work for Disney as an artist. Your contract will probably state that the images you create belong to Disney. Anything can be agreed upon in a contract. The default is that an artist owns the copyrights.

If you do not register your images on a regular basis, the courts can decide in your favor, but do not have to award you any court costs, so you actually loose. If you do register your images, the court will award you court costs, which is a significant difference. That is in the USA. I don't know about elsewhere.

[Rick Wilton]

what's the difference, between a stained glass installation, a painting or a building. If you make a glass installation and they can't sell postcards what's the difference? I'm not trying to be argumentative but don't a difference. Someone made or designed both and can claim to own a copyright. In my mind if you hire someone to perform a service or supply a product and you pay them they relinquish any ownership. Be that a photographer that I paid to shoot photos of my glass or family or a glass designer to make something. I paid you I OWN it and all rights to it. (at least in my mind)

[rosanna gusler]

you own it if that was spelled out in the contract before hand. the default mode is that the photographer owns the copyright. rosanna

[Bert Weiss]

If I understand this right, an architect's blueprints would be copyrighted, the building itself, not. Copyright comes under the category of "intellectual property" A building does not qualify as intellectual property. An image of the building does.

The I paid you, I own it mentality may be assumed by the unaware. Legally you bought the object. Unless otherwise specified in a contract, the default is that the creator of the art object retains copyrights. The object is physical property, the copyright is intellectual property.

[Morganica]

Sorta. You can take pictures of a building, generally, because it's a public space, and anything of the building that you can see from a public vantage point is fair game. Unless the interior is a public space, however, your ability to take images inside and sell them without the owner's permission may be limited.

You can't sell pictures of people (except public figures in some cases) unless they give permission--that's a privacy issue. However, if they've signed a release, they DO NOT own whatever images/video they're in, the photographer/videographer does. If someone's shooting video of you at work, for example, it's a good idea to iron that out before the shoot.

BethG would have a better take on this, but registering the copyright means you have no additional burden of proof that the work is yours or that you sustained actual damage by the infringement, and that you can be awarded statutory as well as actual damages, and attorney's fees. The defendant now must prove that you no longer own the copyright (i.e., that you sold it to him or whatever). Statutory damages can be as high as $150K per work infringed and exactly how much depends on context and how willful the infringement was (i.e., did the guy crop a photo to remove your copyright notice). When you hear of these download cases where RIAA goes after a housewife for a million bucks in damages because she downloaded Lady Gaga's latest album and didn't pay for it, that's how they're calculating it.

If it's not in the contract, the artist retains copyright, yes, but it's frequently somewhere in the contract, especially in work-for-hire. It used to be very common that a writer's contract, for example would include the phrase "buys all rights." In those cases the writer is usually allowed to reproduce the work for self-promotion (although I've gotten hefty premiums to eliminate that as well as never tell anyone I even had someone as a client). I still spell out rights management on mine, just to make it explicit. Saves hard feelings later.

None of that, though, addresses the glasswork itself, which is usually where people have trouble. Copyright doesn't prevent someone from knocking off your design. If they sign your name to an exact copy, that's fraud, and it's protected under the Latham act. But if they're taking your idea--say, blue-tinted photographs reproduced in frit and enamel on yellow glass--different matter.

Really nice book from Nolo Press, on the law for crafts businesses, that can help a lot here...

[Mike Jordan]

Cynthia, actually, you can take pictures of people and use them without their permission... if they are in a place that does not have the expectation of privacy, which usually means a public place. Most publications require a signed release of any recognizable person because they don't want to have to defend against every person that didn't want their picture published. And that is the rub... while it can be legal and the right of the photographer to do so, it's also the right of anyone in the US to sue anyone else for anything they have the money to sue for. And even if you won every single case, it's still going to cost to fight each one of those cases... money that you wouldn't get back. So most people don't want the hassle or expense, even if they are in the right.

About the question by Rick, yes, a copyright on a photo covers it from being reproduced in any form where it can be shown it's a derivative of the original copyrighted photo. That means paints, drawings, sculptures, etc. That's how I got one of the people that infringed on me. She took my image, flipped it, did some photoshop work on it, added some garnishments around the dog and then turned it into a drawing type image. Because the dog was still recognizable from my photo (thank goodness for a dog with big pointy odd shaped ears and hair that stuck out in all the wrong places ) it was an easy bust when I flipped and overlaid my photo on her image. Also, you will find most national, state and city icons (think Golden Gate Bridge and other structures) are already copyrighted by some entity, either the city or state or owner of the structure. While they don't care about the millions of snapshots that are taken, if someone takes a picture and turns it into a very lucrative marketing product, that person will probably hear from the person that owns the copyright if the image is close to what they have copyrighted. After all, there are only so many ways you can shoot most buildings, bridges, statutes, etc., just like there are only so many ways someone can make a sushi dish.

Copyright is very misunderstood by a lot of people, even some lawyers disagree. That's why they go so much by case law or cases that have already been decided in a court of law. It's only been in the last handful of years that the laws have changed very much and with the digital age, a lot more changes are solely needed. But even though some of us have a little more experience with it than others, your best bet is to talk to a IP lawyer... or look up one of the Lawyers for Artists that Bert mentioned. I wish I had known about them with my first infringement, but I didn't find out about them until much later.

Mike

[Rick Wilton]

The point I was making is that these people paid Bert to make a stained glass window. They are now not allowed to photograph their own property and produce a postcard of something they own. To me that sounds crazy, where do you draw the line? Is the computer monitor I'm looking at have a copyright on it so I couldn't photograph it and sell post cards. They commissioned you to make something yet you still own...what? I don't see how them making a post card is against YOUR intellectual property. I can see how photographing something you don't own would be covered but if I bought and paid for something I think I should be able to profit from it however I can and see fit. You can take this to a ridiculous level and say that a paint company owns the copyright to the painting as the artist didn't purchase the copyright to manipulate their product. Does Bullseye have any rights to the products we purchase? I've seen people basically just frame a piece of glass and call it art. Is Lani going to come after us one day and demand a cut? Once I've bought something IT'S MINE. Unless it's an Apple product and then they'll still tell you what you are allowed to do with it.

[Morganica]

Cynthia, actually, you can take pictures of people and use them without their permission... if they are in a place that does not have the expectation of privacy, which usually means a public place. Most publications require a signed release of any recognizable person because they don't want to have to defend against every person that didn't want their picture published. And that is the rub... while it can be legal and the right of the photographer to do so, it's also the right of anyone in the US to sue anyone else for anything they have the money to sue for. And even if you won every single case, it's still going to cost to fight each one of those cases... money that you wouldn't get back. So most people don't want the hassle or expense, even if they are in the right.

About the question by Rick, yes, a copyright on a photo covers it from being reproduced in any form where it can be shown it's a derivative of the original copyrighted photo. That means paints, drawings, sculptures, etc. That's how I got one of the people that infringed on me. She took my image, flipped it, did some photoshop work on it, added some garnishments around the dog and then turned it into a drawing type image. Because the dog was still recognizable from my photo (thank goodness for a dog with big pointy odd shaped ears and hair that stuck out in all the wrong places ) it was an easy bust when I flipped and overlaid my photo on her image. Also, you will find most national, state and city icons (think Golden Gate Bridge and other structures) are already copyrighted by some entity, either the city or state or owner of the structure. While they don't care about the millions of snapshots that are taken, if someone takes a picture and turns it into a very lucrative marketing product, that person will probably hear from the person that owns the copyright if the image is close to what they have copyrighted. After all, there are only so many ways you can shoot most buildings, bridges, statutes, etc., just like there are only so many ways someone can make a sushi dish.

Copyright is very misunderstood by a lot of people, even some lawyers disagree. That's why they go so much by case law or cases that have already been decided in a court of law. It's only been in the last handful of years that the laws have changed very much and with the digital age, a lot more changes are solely needed. But even though some of us have a little more experience with it than others, your best bet is to talk to a IP lawyer... or look up one of the Lawyers for Artists that Bert mentioned. I wish I had known about them with my first infringement, but I didn't find out about them until much later.

Mike

Sorry, but nope--the law does not give you carte blanch to take an identifiable picture of someone in a public place and use it without permission in any way you want. And in fact, the use case you cite--the media--is one group that can freely use such photos--the test is whether or not you're using it for informational purposes, and you aren't misleading viewers about the subject or embarrassing him in some way that isn't in the public interest.

But if you intend to put that photo to use for commercial purposes, you most likely need the subject's permission. I just spent an hour with our chief legal counsel yesterday talking about exactly that--we rejected a series of very nice photographs, in a public arena, because the usage would strongly imply that this person endorsed a particular product, we have no release, and we have no way of contacting the person. We would be potentially invading that person's privacy, so...adios, photos.

In another, very expensive case with a former employer, one of our teams shot a wonderful video of kids enjoying themselves in a very public California ballpark, taking advantage of our products. Unfortunately, they didn't obtain releases from those kids' parents and California has some very strict laws about photographing children. We had to scrap the entire project. So no, the "public place" bit isn't an absolute.

On landmarks--in the US there is such a thing as a "photographer's exception," which says that if it's done from a public view you can photograph landmarks, copyright or not. (why would you think that photographing a person in public is OK but photographing a building isn't?) A building or bridge CAN be copyrighted as a "work of art," yes...but not if it was built before 1990. The Golden Gate Bridge was built in 1933. You can be cited (or sued) for trespassing on private or restricted property to obtain your photo, but again, that's not a copyright issue.

Most of the time, restrictions on photographing landmarks aren't because of copyright, but rather because of security and other issues caused by filming. I ran a photo shoot on the Brooklyn Bridge that needed a permit; their security had to ensure our safety, keep the public at bay and do their best to keep traffic flowing. It's also a revenue-generating service they provide to the media and entertainment industries. They could have cared less about the IP.

[Mike Jordan]

Yes, I agree that there are some cases where you do need permission, depending on what it is going to be used for and where it was taken. It may not be in the best interest of the photographer to take pictures or do anything with those pictures in some cases, since anyone can sue anyone else for anything in the US, but it's not always against the law... unless something has been passed in the last few years that I've been out of public event photography. I've had a lot of images published with anywhere from one to hundreds of people in them at public events (or at private events where it was known that photography would be done) over the years and other than when I've entered contests or hired somebody to model or do a staged shoot, I've never had to obtain a release from them. Nor has any of the IP lawyers I've gone through said that it was required. But yes, there are times that I wouldn't do anything commercial without signed release forms and if I thought I would use the images for something commercial or even non-commercial and it was possible, I do get a signed release. Actually, the only issues I've ever had over the years have been with owners of the non-humans I've photographed. Some seem to think that permission is needed to take pictures of their animals (show dog and horse owners in particular) during a public event. If I ran into someone that was really anal about it (luckily that was rare), I'd usually make a note to make sure that one didn't get published anywhere, but out of 2,000 to 8,000 images I could take over a 3 day event, unless it was something really special, the person probably didn't have anything to worry about.

But regardless of whether it's legal or not, who needs the hassle and expense of proving it in court. I know I didn't, so I always used the common sense approach... Is it illegal? If yes, then forget it. If it's legal is it going to be a hassle? If yes, then forget about it... or in some cases, take the picture for the personal portfolio but that's all it will ever be used for. I pretty much stayed away from photographing minors in a public setting unless I already had the parents permission and even then I wanted one of the parents with us at all times. Yea, I know about some of those California laws. I did a number of weddings down there when I lived in the San Jose area. California was what made me decide not to take up photography as a full time profession when I got out of the Air Force. Photographers didn't have it very easy there, that's for sure. I'm glad that I'm pretty much done with all of that now though, since our personal freedom and rights have gotten a lot more complicated since 9/11 and it's only going to get worse (or better depending on ones point of view). But I'm sure the last generation said the same thing about our generation to. Anyway, this doesn't have anything to do with art and photography (at least not directly) so I'll go back to my usual read mode. Sorry for dragging it off course.

Mike