32 Statements About Copyright
Because I don't know 33 things about copyright.
I know a thing or two (or 32) about copyright. But I am not a lawyer and this is not legal advice. Over the years, I have studied and written about copyright, and in so doing have been fortunate to interview photographers and artists and lawyers (including those involved in some very high-profile cases). It’s a mysterious and confounding subject. What follows is my best attempt at helping to bring a little bit of clarity to the tangled web of copyright law. Rules vary widely based on locale, so as much as any of these statements may be accurate, they are only so in the United States. Since this stuff’s complex and nuanced, I will happily accept clarification and refutation from real experts.
1. Copyright law is the wild west. Even intellectual property attorneys will tell you this. It is tricky and challenging and sometimes seems to contradict precedent in the screwiest of ways. That’s partially what makes copyright so interesting.
2. You don’t have to declare your copyright, or display the copyright symbol © to receive its protection. However, displaying the symbol does help to counter a potential “innocent infringer” defense, which could have a meaningful impact on a judgement or settlement.
3. People who talk about copyright online — present company excluded, of course — are incredibly wrong with frequency. This is particularly true on social media. Why? I think it’s because copyright law is complicated and weird in ways that don’t seem to make much sense.
4. When it’s created, it’s copyrighted. This is my favorite copyright rule of thumb. You don’t need to do anything to have the right to control how your creation is used. What copyright registration does is provide the creator with legal leverage should they need to involve lawyers in a dispute.
5. You can register copyright at two different times: prior to publication (with a three-month grace period) or after. Inclusion in an online portfolio does not necessarily amount to publication, as far as the copyright office is concerned. But the sale of prints, or the licensing or public display of images, would constitute publication. It’s always best to register copyright prior to publication, because registration changes the equation with respect to compensation should an infringement occur.
6. A lawyer may be considerably less likely to take your case if they know the damages will be capped at a few hundred dollars. Registering copyright before infringement changes this equation by making a potential victory much more lucrative.
7. You don’t need to get lawyers involved to defend your copyright. Because “when it’s created, it’s copyrighted,” you can contact an infringer directly at any time requesting that they cease and desist the unlicensed use of your work, and to request a licensing fee for the usage that has already occurred.
8. Be careful, though. There is a thin line between demanding fair compensation for the unlicensed use of your work and what may be perceived as extortion. The best way to avoid that is to allow the infringer to suggest a payment for the use, as photojournalist Todd Bigelow explained to me in our 2017 interview: “I don’t send them a demand for money, I let them ask me for a license. Essentially, I say, ‘At times I will offer a retroactive license to cover the use on your website although that discretion is left up to me and decided on a case by case basis…’ I don’t make a threat; I put things in vague enough terms so that they can interpret what they want from that. Oftentimes I get, ‘What would the retroactive license be?’ and that’s a request from them to provide a license.”
9. To involve lawyers and sue someone for infringing upon your copyright, you need to have registered the work with the U.S. Copyright Office, but this doesn’t have to happen prior to the infringement. That said, registering after the fact unfortunately caps the potential award to actual damages — essentially the fair value of what the licensing fee would have been had the infringer played by the rules. If the work was registered prior to the infringement, however, copyright law allows for the awarding of statutory damages up to $30,000 per registered work. Significantly, if the court determines an infringement was willful, damages can be raised to $150,000 per work.
10. There is a copyright version of small claims court, originated via the CASE (Copyright Alternative in Small-Claims Enforcement) Act in 2020. It established the CCB, the Copyright Claims Board, which offers expedited proceedings before a three-person panel and does not require a lawyer. Damages in CCB cases are capped at $30,000, and an even simpler version allows a claims officer to make a determination in cases under $5,000. The CASE Act and the CCB make the process of defending copyright much more attainable for artists and creators without the means to retain an attorney for a protracted legal dispute.
11. It typically costs between $45 and $85 to register your copyright (though there are many variables that can increase the cost for certain types of work). The good news is, you can register all images from one body of work in a single group application.
12. You can register your copyright — which I have done — and the work can be infringed — which has happened to me — and still not be able to secure recompense. How? I have learned to my sorrow that if the infringing party declares bankruptcy or dies, you’re out of luck. Blood from a stone and all.
13. Just because you hold the copyright does not mean you are the only party who has a say in how an image is used. If you take a picture of me, for instance, you can’t license that image for commercial purposes without my consent. This is known as “publicity rights” because we are each permitted under U.S. law to determine how our likeness is used commercially. This is why you can’t take a picture of Tom Cruise on the street (where you’d be well within your rights to photograph him) and slap it on a toothpaste ad. Just like the rest of us, famous or not, Tom gets to decide that for himself.
14. Model releases exist for the above reason. They are essentially evidence to demonstrate an agreement was reached and the subject of the photo was made aware of potential commercial use and was fairly compensated in exchange.
15. Fair compensation, courts have ruled, has to actually be fair. You have to offer “valuable compensation” in exchange for the signed model release, and that compensation cannot be just a dollar. Well, it can be, but this is legally precarious enough that best practices dictate you should provide more (cash, prints, etc).
16. Using an image in your online portfolio or social media does (or at least might) constitute commercial purposes, since it is effectively being used to promote your commercial photography endeavor in a way that a set of three printed portfolios privately shared would not.
17. Fan fiction is copyright infringement. Technically. Typically. Because it is an unauthorized derivative.
18. If an entity pays a licensing fee to use your copyrighted material — a song, photograph, poem or painting — this does not mean the entity now owns your copyright. The particulars of the usage are spelled out in the contract, and they can be as specific as you and your client care to make it. For instance, a photographer may license a newsworthy photograph for one-time print-only use in the state of New Hampshire. Or a commercial photographer may license their tabletop product photo worldwide for a three-year usage term for online-only uses except for paid advertising. Or an amateur photographer may license their landscape photo to a calendar printer for a one-year usage term in North America. There is no established “standard” usage, and it’s up to the artist and client to reach an agreement amenable to both parties.
19. You can sell your copyright. This happens by default in “work for hire” contracts which are, unfortunately, becoming increasingly common in the photography business. This is occurring, in my opinion, because there are more photographers than clients, so if you don’t accept our lousy terms, they imply, someone else will. It’s a terrible predicament, and I fear it’s only going to get worse. The ASMP (American Society of Media Photographers) standard advice used to be to charge 3-4x a limited usage license fee for the sale of a copyright, should the photographer choose to offer it. I’ve done that with success, but we’re sure to see more work for hire requests coming in because our leverage (scarcity) is disappearing.
20. Work for hire is bad for photographers because it limits our ability to be fairly compensated for exceptional work. Think of every amazing photograph you can from the 20th century. Chances are, the photographers who made those pictures retained the copyright and were therefore free to sell and resell the images in myriad ways. Work for hire and copyright transfer simply removes the photographer from that equation, allowing the client to reap the rewards of all those additional sales.
21. Work for hire contracts aren’t the only way to transfer a copyright. Two parties can agree to sell a copyright at any time. You could call your friend with the amazing work and draw up a contract offering them $100 for the copyright to your favorite picture from their portfolio. Should they accept, you’re then free to license that image anywhere and everywhere you can. It is, for all intents and purposes, yours.
22. You can copyright choreography, but not individual dance moves. You can copyright software code as a work of literature. You can copyright a smell (think perfume) and you can copyright an architectural design if it’s unique. You can’t, however, copyright an idea.
23. AI-generated images cannot, at this point, be copyrighted. It is one of the natural limiters likely to keep brands and businesses from employing AI-generated imagery for high-profile uses. My guess is, AI companies are lobbying hard — or soon will be — to get this standard changed. For now, they’ll have to settle for registering whatever human-made contributions are evident in an otherwise AI-generated work.
24. There are major carve-outs from copyright law to provide artists wide leeway in the use of previously copyrighted works, even including the likeness of identifiable individuals. For the former, study up on the cases of Richard Prince (an appropriation artist known for copying Marlboro print advertisements and enlarging Instagram posts, and getting away with it in the legal sense if not the moral one) and Lynn Goldsmith. For the latter, see Philip Lorca diCorcia and his case that proves there is no expectation of privacy in public and the sale of your image in an artistic realm does not constitute a commercial use.
25. While courts have a long and demonstrable track record of loosening limits on appropriation in the context of artmaking, they do not seem to consider the music business artmaking. When it comes to music appropriation — sampling, for instance, or the copying of an identifiable melody — the original artist must be compensated. They may even be named as the songwriter (or co-songwriter) of the new piece. Many interesting examples of this exist, including the famous case of Mick Jagger and Keith Richards receiving sole songwriter credits — along with millions of dollars in royalties — for the Verve’s song “Bittersweet Symphony” which sampled a small section, not of an original Rolling Stones song, but of a symphonic recording of the song. The rules are different for music. My best guess is it’s because the music business is seen as a commercial endeavor, first and foremost.
26. If an artist graffitis on your building, you would have to get their permission to remove it. Really. (But only if it’s recognized as art in the eyes of the court. Local tagger? Clean it off. Banksy? Better wait.)
27. If you are an employee who creates an artwork in the normal course of your duties — a photograph, a piece of writing, a sculpture — the copyright defaults to the business who employs you.
28. Copyright runs out 70 years after the death of the artist. If the work was created by a corporate entity — Walt Disney, for instance — it’s 95 years after first publication.
29. There are exceptions to all of the above, known as “Fair Use.” Things like commentary (a review of an artist’s work in a blog or magazine, for instance), parody (or satire, in cases such as Weird Al Yankovic’s song parodies of obviously recognizable copyrighted songs), news reporting (if an image is of profound public importance), research and education about copyrighted works (art history class, for instance) do not require the permission of the copyright holder. If a work is transformative, or non-commercial, has no effect on the market for the original artist’s work, or uses only a small portion of a copyrighted work, it may also be fair use. (The aforementioned Richard Prince, for instance, typically gets away with his appropriations citing fair use, because his work is deemed transformative — taking an image from the advertising realm and transforming it into a work of art.)
30. Credit is no substitute for permission. Many, if not most, of the works you see shared online would, in the eyes of the court, constitute copyright infringement. The terms of service of most social media companies can alter that, however. For instance, if I upload an image I made (i.e. for which I hold the copyright) to Facebook, because I agreed to the Meta terms of service, the image is free to be shared and re-shared by others on the platform. However, if I saw a wonderful image in the newspaper and decided to share that image on Facebook, I do not hold the copyright to the image therefore sharing it likely constituted a copyright violation, as does every subsequent re-share (re-publication) of the image. No money has changed hands as far as the copyright holder is concerned, but the social media company has profited handily from the engagement with its platform against which advertisements are sold. Just because it’s standard operating procedure doesn’t mean it’s fair or legal.
31. A more concise way to say that is, “Just because you see an image online doesn’t mean you can share it.” And just because you credit the photographer doesn’t mean you’re in the clear. Nor do those silly statements found under YouTube videos where people have shared music videos or TV shows and write, “No ownership is being claimed!” Doesn’t matter. The copyright holder gets to decide how their work is shown, period.
32. Just because you modified a work doesn’t mean you’re not infringing on its copyright. For instance, if you took this post and changed a few words here and there and shared it as your own, you’d be infringing on my copyright. And you better believe I’m coming after you. It’s the best way to make a buck in the arts these days.
It's clearly a minefield.
Point 32 made me think about the situation where Danziger took Ansel Adams' "Moonrise Over Hernandez" photo, made a colourised AI version and then put it up for sale. As someone who is not as familiar with copyright law as yourself or a specialist legal professional, I'd like to think that Ansel Adams' estate would win a legal battle over their ownership and copyright of that and every other image taken by Adams which might be adapted / modified and passed off as someone else's work.
Great article, Bill.
Several years ago, I found a video put out by B&H. It was a discussion by Ed Greenberg and Jack Reznicki, about the uses for, and limitations of, copyright law. I found it very helpful. The crux of their talk was focussed on what you have mentioned as point #5, namely, register your work before publication. The U.S. Copyright office allows for most everything that you might want to copyright to be registered online. There is a fee to setup your account, and a (much smaller) fee for every entry that you make/upload. For photographers, this can include multiple photos in the same registration.
Ed and Jack stressed the importance of registration prior to publication for the simple reason that it gives you more options when going into court, over a copyright claim. Those options are the ones that allow for monetary damages. Money, is the catnip that draws the lawyers, so having pre-publication registration increases the likelihood that you can find a lawyer who will take your case to court, should your work be infringed.
An interesting angle that Ed and Jack mentioned was, if your work was pirated by, let's say, a large publisher, they would be on the hook for each instance of infringement. If they ran an issue of a magazine that had a printing of 500,000, they would owe you for each of those images published. Most large publishers are very careful about copyright infringement, and probably wouldn't put any photo that they knew was dodgy into their issue, but a lesser publisher might... try.
My take-away from their talk was, if you have something that you want to make money on, register it first. It's not prohibitively expensive, it's easily done, and it gives you options in the future that you won't have without registration.