Copyright - Your rights and others

by Paul W. Faust

The US copyright laws can be very confusing, mostly because there are so many variables which can come into play, depending on who is doing what, when, how, and where. There have been a lot of comments and questions about what is publication* and what is covered by a copyright, and there is a lot more to understand than just saying that something "might be" subject to copyright laws, and other things are ok as is. It has also never failed to amaze me at what some people will say and think is ok to do with their own, or even the works of others.

Technically speaking, almost everything a person creates, be it a photograph, an oil painting, a ceramic vase, a sculpture, or even graffiti painted on an old wall is a form of expression and is copyright-able, and as of the last time the US laws changed back in the 1970's, it is now automatically covered the “very second” the work is completed. You do not even have to officially register it in order to protect a piece of work, although that does need to be done within a certain amount of time if the image is published and you do not want the work to end up in what is called "public domain." Registration is also needed in order to make a court case iron-tight in your favor. A financial reason to register all work is that if you have a piece registered, and you have to sue someone, then the person who infringed on your copyright also has to pay all of your legal fees as well. If the work has not been registered before the suit, you can still sue anyone, but you pay all of your own legal fees. This could even end up being a large part of the settlement that would go to your lawyer. (Smart people register their images!)

Public domain means anything that was never copyrighted, could not by law be copyrighted, created by any government agency that used taxpayer money to produce it, or items that have outlived their copyright coverage. For example, the NASA shots of the earth taken from any of the moon missions are free for anyone to use. They have no copyright protection. The taxpayers paid for their production, so the taxpayers own it, thus it cannot be copyrighted. That goes for anything paid for by the government, including reports, instructions, books, photographs, and whatever else you can think of.

If you remember watching any sports program on TV you should also remember hearing at the end of each program the statement that "all rights to that program are reserved by such and such a company and no reproduction in any form is permitted without the written consent of that producer." Look in the first few pages of any magazine or book and you will see the exact same statement in one form or another. By the letter of the law, no reproduction means in any way, shape, or form. Make a photocopy of a magazine page and you have broken the copyright law, and have infringed on the rights of the original creator or owner.

Ninety nine times out of a hundred making a photocopy of a magazine image would mean nothing to anyone, even the artist, but use that copy for any reason other than your own person use, or as reference material, and especially should you try to profit from that copy, and you are fully liable for a copyright infringement suit. Depending on the way it is used, the artist can ask the court for anything from a few hundred dollars to a few hundred thousand dollars. That part all depends on what they claim is their losses from you stealing their work. If you should sell the image to a magazine, or an ad agency, and not tell them that it is not your original work, that business can also sue you for additional damages. Profit does not always mean money in your pocket either. Use someone else’s image on your brochure, business card, or even just a postcard to send to a business as a promotion, and you are libel, even if you never make any money as a result of it. It is still promotion intended for profit. The key word in any court being, “intended for profit.”

Can you take another person's work and make it a part of a larger piece of your own work? NO! Not even a little bit of it. If any part of it can be recognized as a copy of someone else's work, you have committed theft of intellectual work, and that is exactly what the law calls it. Theft! Try to make a profit from it, like some people do with bootleg music and movie tapes, and you can go to prison for it. It is a federal violation, not to mention the fact that it is immoral and makes you a thief.

What do you get?

What the copyright laws do for you is to keep your work safe from others using and making a profit from it without paying you for that right. It keeps someone who you gave one-time rights to, from using it many times over on many different items or products. It keeps them from reselling it again to others who you have not given permission. And most of all it keeps your work from ending up in the public domain in which anyone, anywhere, at any time can use it without having to pay you a cent, or even ask for your permission. Unlike a model release that is not needed at all under certain circumstances, reproduction rights to copy and use your work MUST BE obtained to use all or any part of it, no matter what the use is for. This includes copying an image off of a web site, as I have read more than a few people online think about doing. That is still an infringement if you do not have the permission of its maker to do so.

Copyright infringement does not just cover copying photo images either. It also covers items like sculptures, which you also cannot copy, including by taking a photograph of them. That does not just mean in art galleries, but even items in small craft and gift shops are protected by law. You cannot take a picture of those and use it in any way from which to make a profit. Many people think that they can photograph those big sculptures outside of office buildings and use those images. Not so! Not even in photo contests.

First of all you can not only be taken to court for copyright infringement for the subject itself, no matter who owns it, the artist or the property owner, but you could even be arrested for trespassing on the property itself.

There are many other considerations where the copyright laws are concerned. Things like the coverage period, cost of registering, what can be copyrighted, what can not, how many at one time, and what notices have to be given. If you have any questions just go online and go to the Copyright Office found under The Library of Congress. You can also order the registration forms from there, and the information booklets to go with them. So protect your own images, and find out how to keep yourself out of court, and debt, by not infringing on someone else’s work.

What are your requirements?

Although your work is covered at the time you take the image, you still have to meet a few requirements when publishing them in any form. It is best to register any image before it is used, and it also makes handling the matter a lot easier after that. Once you have sent in the form and samples all you need to do is include your copyright notice with the image as it is published. Most publishers have no problem with including that, and usually do it right under the image when printed. There are three ways a notice can be shown, and each are legal, but the best way to show it at the time it is first published is as I show here with my own example; © 2005 Paul W. Faust. This is used when the image has been registered and published in the same year, or published after the year that it was registered. You cannot show an image as copyrighted in 2004 and then register it later in 2005. You could loose all your rights if you try that. Showing the year is the best way to show your notice as it also gives a viewer notice of the fact that it is fully registered, and not just loosely covered by a printed notice. It will make many people think twice about making any copies.

The two other ways to show a copyright notice is just to use the symbol and your name as with; © Paul W. Faust, or you can write out the word and not use the symbol as with; Copyright Paul W. Faust, and of course the year can be included in any of these if it has been registered. Many people just use the symbol and their name when they have not registered the image, but want to give notice that it is covered by the copyright law. However, if you allow it to be published this way and end up having to sue someone, you will have to pay all of your own legal fees. There is also the matter of copyright requirements of you if you allow an image to be published without any notice at all. You could end up loosing all rights to it and the image considered to be in the public domain. Get a copy of the rules and follow them to the letter. You could end up being very sorry if you don’t!

How do you register?

First you have to get the right form, which depends on what you want to register to begin with. For here we’ll talk only about photographs. Then you also need to decide how you intend to register them. By this I mean that you can register one image, or 1,000 images at a time, but there are a few conditions to doing so. The registration fee is $30 per form, not per image. That means you can register one image per form, or you can register 1,000 (or more) images per form, but when doing more than just one image they must ALL be done at once and all under the same “title”. I register my images as “Portfolio #” no matter how many images are in it. I do that by making a copy of the scanned digital file and converting it into a smaller file size, usually 4x6 inch at 100-150 DPI, and burning them all to a CD. You no longer have to supply a print of each image. You can now put them all onto a disk and register them all as one portfolio as I do, or whatever you want to call yours. All of this means that I can put over 425 images, of the above size, on each disk for the same one time fee of $30. For this method you will also need to use the Short Form VA to file with. Since they can be copies, I fill in all of the standard info, like name and address, and make copies to send in after I have filled in the remaining sections. DO NOT forget any of the information needed or they will send it back to you and that will delay the whole process.

Take the time to learn the rules and file a formal registration.

GOOD SHOOTING!

Copyright definition

To display a work "publicly" means

• to display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
• to transmit or otherwise communicate a display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

About the Author

Paul W. Faust is a self-taught Photographer, Writer, Digital Imaging, Photo Restoration, and Photo Stock Service professional.

His work has been published in American Photographer, Camera 35, Camera and Darkroom, Popular Photography, Photographic, Photographers Forum, www.apogeephoto.com and here at TPN. Past assignments have included many cover images, full-page spreads, and also shooting stills for both Hollywood movie sets, and for star hopefuls including Bo Derick, Heather Locklear, and Pricilla Barns, among others. Paul's images have also been used by; NikonNet, Bogen Photo Imaging, East Tennessee Film Commission, and The Knoxville Zoo, to name a few, including their web sites.

Paul can be reached at pwf_iol@yahoo.com

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