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.
Table of Contents
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.
I’m coming a little late into the conversation. Question: when you copyright unpublished photographs, are they still considered copyrighted if you publish them?
Hi,
My problem is very clear: I’d like to know if I could use a flash WITHOUT taking a picture with a smart-phone.
Thanks
You could turn on and off the flash with the flashlight utility.
Hi, this is a very useful article. I have a question about copyright and any permission needed first include photographs of surfers taken at a public beach on my website and second the right to sell those photographs through the website or any other outlet. Can you provide any guidance? Thanks, Ted M.
From a copyright perspective, you took the pictures you own the copyright. The question is whether you can use those pictures or how you can use those pictures without a model release, and that actually is not a copyright question but related to privacy law. If your use is commercial then you need a model release- but defining commercial can be tricky. You may want to look up laws regarding model releases and privacy. But really, if in doubt or whenever possible get a release! The easiest way to do it is to keep a standard release form on your phone so you can just pull it up and ask someone to sign it. If you ask nicely, most people are flattered and happy to sign. Plus even if your planned use doesn’t need a release, you never know when you might want to sue the image for something commercial in the future (or when you might have the opportunity to sell it to someone for commercial use).
A lot depends on how clear the face is. Obviously if the surfer is far away, and cannot be readily identified, then there is no problem. Even a side shot, up close, might not readily reveal the person, depending on the angle, the lighting, etc.
Professional sporting events is another area where a lot of photographers get confused about how they can use their photos. They forget that the sport and all of its players on the field along with any team logos are a product that is owned and trademarked by the team itself and/or a professional organization such as MLB, NHL, NFL, NBA, NASCAR, etc. All of those professional sports organizations have exclusive contracts with various image agencies like Getty Images or the Associated Press. So while the photographer owns the copyrights to any photos they take of a professional sporting event, their ability to sell those images is extremely limited. The only sales that would be allowed would be for editorial purposes, such as newspapers or magazines. Selling individual prints or digital images is considered commercial sales and is strictly forbidden by the professional sport organizations unless the photographer has a licensing agreement with the sports organization. Even then, the organization will defer to their imaging agency to handle all commercial sales.
And even if you consider to be safe from the perspective of the rights of the team or the various sports organisations in play, you may run into portrait rights of the sports person him-/herself.
I like my work to be used, so I upload all my images on Wikimedia Commons, with an encouragement to pay a little.
Great images and great information about copyright.
Ah, Actually we toy and hobbyist photographers do have an issue with this. For example, you take photos of lego or Star Wars action figures, just to give a simple example. And you are really good at it that people want to buy prints of your photos. But the copyright owner of the Star Wars franchise itself wants to interfere by saying they own the copyright to the characters featured in your photos, and that you can’t sell your photos even though you’re the author of the photos.
For me who live in Asia we don’t face this problem, our rules here are quite lax. But my friends who live in the USA and Canada have this problem of not being able to sell their own photos for just pocket change. You know, a small side income out of your hobby, it’s not a business.
To me, this is just corporate greed. We hobbyists selling a 5 or 10 dollar print will not harm the franchise in any way, not to mention it’s actually free advertising for their merchandise. Licensed, genuine merchandise. When you buy a genuine product you already paid for a copy of the license, therefore you should be able to do anything you want with it, including making some money from it. You buy a car but you rent it out, or you buy a copy of photoshop and use it in your photography business to make money. That’s how I see it.
Excellent example. Unfortunately, logic and sometimes even morals, on one side, vs corporate greed and lawyers on the other, do not communicate. And there’s a lot of grey areas like, for example, making a really good picture of a paint. Can you sell it, regardless of the law in your particular country? Yep, you took the photograph, no doubt. But I (let alone a lawyer) would argue that most of the merit (and revenues) still should go to the original artist.
In US copyright laws, Fair Use allows for the creation of derivative work- meaning creating your own work based off of work someone else owns the copyright too. Musical Parody is a great example of derivative work. But since the what is considered derivative can be fairly subjective it’s best to contact a copyright lawyer before publishing or selling that type of work.
You are correct; EXkurogane’s Lego photos are derivative works, and may be legal under U.S. law. If EXkurogane is taking photos of a sculpture he created with Legos, his sculpture is an an original creation of his, and therefore he owns exclusive copyright on the sculpture, while The Lego Group owns exclusive copyright on the little Lego pieces that make up his sculpture*. The degree to which EXkurogane owns the copyright on his pictures depends on laws governing derivative works, which are way to complex for me, as a layman, to understand. I expect his photos are completely covered, but don’t quote me.
EXkurogane and others should not expect their local laws to cover use in the US, or any other country. There is an international copyright convention, and it covers your use of other people’s copyrights as soon as your use crosses a national border. Posting on the Internet should suffice.
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*Actually, they probably protect them using trademark law. Copyrights automatically expire at some point, while trademarks are permanent, expiring only if they go out of use. A good example of this is Bass Beer’s red triangle trademark, nearly a quarter of a millennium old.
I think in the US at least, this is a darker shade of gray.
If you make a photographic reproduction of a painting, this is clearly a violation of copyright law if you sell it. If you photograph a painting at a distance with nothing else in the frame, this is probably also a violation of copyright law if you sell it. If you take a photograph of a person with a painting in the background, this would be a gray area if you sell it. If you don’t sell this last photo, it probably falls under fair use. The previous examples are, I think, something of a gray area if you don’t sell it.
The best way to think of it is that copyright is literally the right to make copies.
There are a lot of shades of gray in copyright law, but especially when it comes to fair use. That’s why it is so important to have a good intellectual property lawyer who can answer these sorts of questions. But with the ease of publishing photographs online and on social media, it is also important that photographers understand enough about copyright to be able to protect their own images as well.
Hello AnnonPi,
Be aware, the picture “of a person with a painting in the background” is most certainly no gray area if you sell it. Or at least not in Europe but it may be different elsewhere. You simply cannot assume to have the right to sell. Here is why: A painting is usually not displayed in a public space (outdoors or any other public access location). Any use other than personal “use, study or practise” of photo’s made of paintings (or any art displayed in non-public access locations, such as museums and schools but also in non-public outdoor venues) is a no go. Even if you were allowed to take the picture in the first place. And even if it is actually a picture (selfie’s included) of a person with the nice background of the Mona Lisa or Rembrandt’s Nachtwacht.
And how about your rights on a photo of a work of art that is displayed in the public space (e.g. a statue on a square)? It depends:
– the work of art must be permanantly displayed on that location such as the statue, (and that includes the graffity on it, a piece of art in itself). If the artwork is permanantly displayed, you in general will have no rights to sell a picture of that artwork, if the artwork itself is the subject of the picture. If you take a picture of the scenic square on which there is an artwork, you’re fine to sell. If the picture more or less only contains the artwork or a piece of it, you’re not.
– Also note that the public location of that piece of art must be intended (e.g. a statue that normally stands inside a church, but is temporarily placed outside, is still considered as a piece of art intended to be in the non-public space). So no commercial use of that selfie in front of a Van Gogh if the museum happened to put that Van Gogh outside, while the painters repaint the exhibition space.
The paintings by the artists you mention–Van Gogh, Rembrandt, Da Vinci–are no longer copyrighted, as any copyrights would have expired long ago. Therefore, photographing them would have nothing to do with copyright law. A museum, on the other hand, my have a no-photography policy, but I’m not sure exactly what legal merits that has. Perhaps you might be breaking some sort of criminal law. Perhaps such policy is worth no more than the paper (or web page) it’s written on and all that can happen if the museum finds you selling a photo is to ban you from the museum in the future, I don’t know. However, it is the photographing of new paintings that you must worry about (as of this writing, any created since 1924)–and I’m talking about a close up of the painting only. To sell it (or license it), you must get the artist’s permission. I’ve had to do this with a photo of a sculpture. You contact the artist and find out the fee, then add that to your fee and cut the artist a check.
By the way, you can copyright a photo of an artwork. It’s your photo. I’ve done so many times. However, this doesn’t mean that you won’t end up in trouble if you post it on your web page or try to license it.
The Photo Repo Man (photorepoman.com)
Trademarks are a great example of owning a copyright to an image but your ability to use the image is still limited.
Trademark law is completely separate from Copyright law.
Absolutely! This is why owning the copyright to an image doesn’t mean you can use an image anyway you want to. You may be the copyright owner but your use of the image you own the copyright to is subject to all the other laws that come into play, including things like trademark laws.
Ah, sorry, I completely misunderstood your comment.
Thank you for this informative article. It is very helpful. BTW, beautiful images of DC. My daughter lives there and I’m hoping to visit soon and come away with some great captures. Thanks.
Thanks! DC is a wonderful city, I hope you enjoy the chance to photograph it!
Great photos!
accidenti: non la sapevo questa!
“bravi” & grazie. e, sempre COMPLIMENTI.