Did you know that you are a copyright owner? If you’ve taken a photograph, then under US copyright law you own the copyright to that image. Copyright law is something that affects every photographer, not just those who are in business making money from their images. With the ease of sharing images online, understanding your rights under US copyright law is more important than ever. Let’s look at 7 things every photographer needs to know about copyright.
I’m going to start off with the disclaimer that I am not a lawyer. I am not dispensing legal advice, I am sharing what I have learned regarding United States Copyright law from my own experiences, research, and classes. Also, copyright laws vary greatly throughout the world. If you are reading this from somewhere other than the United States, it should serve as a reminder to make sure you have a good understanding of your country’s copyright laws.
1. Copyright is Automatic
If you have ever taken a photo, then you are a copyright owner. You don’t have to file anything, publish anything, or take any action to own or establish your copyright, it’s automatic and immediate. When you make an image, you automatically become the owner of the copyright. There are reasons you should register your copyright (some of which we will discuss in a moment) but registering is not required in order to own the copyright of your images.
There is one exception, which occurs when you create work under a “made for hire” agreement. If you are shooting for yourself, either personally or professionally then this exception doesn’t apply to you and you don’t need to worry about it. If however, you are an employee of a company producing work for use by your employer then that might fall under a work for hire agreement which would make the employer the owner of the copyright. Unless you are specifically creating work for your employer as part of your job, you can assume that this exception does not apply to you.
2. You Are Not Required to Use the Copyright Symbol When You Publish Work
Using the copyright symbol to watermark or caption your images when you publish them is a good idea. It’s a great reminder to the viewer that your image is protected under copyright law. Because some people mistakenly believe that images which don’t have a copyright symbol are available for free use, it’s a smart first step in protecting your work online. But US Copyright law is clear that the using the copyright symbol or a notice of copyright is not a requirement to protect your work. Your images belong to you regardless of whether you label them when publishing them or not.
3. You Must Register Your Copyright Before You Can File an Infringement Lawsuit
If someone infringes on your copyright and you choose to pursue an infringement case against them, you may not proceed until you have registered your copyright with the US Copyright office. While it is a requirement to register your copyright before you can file a lawsuit against an infringer, it is not a requirement to have registered your copyright before the infringement happened. However, registering your copyright before infringement offers you significantly more protections and rights.
4. Registering Your Copyright with the US Copyright Office Offers Extra Protection for Your Images
If you register your copyright before infringement happens (or within 3 months of publication) then you may be eligible for extra protections in the case of a copyright lawsuit. Registering your copyright after infringement limits your case to actual damages (the amount of money that the infringement cost you) as opposed to statutory damages (damages valued by the law on the basis and type of infringement). Since actual damages can be very difficult to prove and may be very limited in some cases, the ability to receive statutory damages is a significant reason to register your copyright when you create new work.
5. You Can Allow Someone to Use Your Image Without Giving Up Your Copyright
It’s important to understand the difference between licensing and copyright. As the copyright owner you have the right to license your image to another party. Licensing is a way of granting someone permission to use your image without affecting the (copyright) ownership of that image. Licensing agreements can vary in the amount of control over your images you want to grant to others; you can grant them rights to use your image for a specific purpose for a specific amount of time or grant them broad usage rights. Regardless of how you decide to license an image, you can allow them to use it without giving up your ownership. Anytime someone wants to use one of your images make sure you understand exactly what rights you are granting them and whether those rights pertain to licensed use or copyright.
6. Copyright Makes You the Owner of the Image, but How You Use the Image May Still be Limited by Other Factors
Holding the copyright to an image is a little like owning a car. When you own a car, you can do what you want to the actual car, but you still have some limitations as to how you can use it. As an owner you are still required to follow the rules of the road. Similarly, owning a copyright dictates ownership of an image, but there still may be limitations as to how you can use your image. For example, some situations require a model release or a property release before publishing an image and copyright ownership doesn’t negate those requirements. It is possible to create a licensing agreement that restricts your own usage of a photograph even though you remain the copyright owner.
7. Just Because Someone is Using Your Work, it Doesn’t Mean That They Are Infringing on Your Copyright.
While the law grants the copyright owner exclusive rights to reproduce, display, and distribute their work, there are a few specific scenarios in which someone can legally use a copyrighted image. For example, sharing an image or quoting part of a written work for the purpose of reporting on it (think book reviews) or educational purposes may be allowed under fair use. However fair use is extremely limited in scope and in most cases when someone uses your image without your permission it is in fact copyright infringement. For ideas on how to handle infringement read Nasim’s article on How To Deal With Online Image Theft.
As photographers it’s important that we have at least a basic understanding of the rights and protections offered to us under US copyright law. Copyright law is fairly nuanced so for information and questions related to a specific case, I recommend you find a good intellectual property lawyer. For more details, including how to register your copyright check out the website of the US Copyright Office.