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.
I would think so too, as the “transformative” standard for fair use does not seem to be met — either visually or in terms of taking an image from one realm (advertising) to another (art) a’la Richard Prince. But as with all things copyright, particularly when new technologies intersect with the art world, who the heck knows.
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.
Agreed. If you want meaningful legal protection, registering prior to publication is essential.
In my experience, many photographers do not typically register their work. Myself, unfortunately, included. There is so much irritant infringement, and so (relatively) little “big payday” type of thing, I think many of us sadly neglect it.
I’ve spoken with several photographers over the years who dedicate a decent amount of time and attention to enforcing their copyrights. My takeaway is that, in most cases, they see involving a lawyer as the last step in a process that largely involves communicating directly with an infringer in an effort to achieve a result, which is as often more about a takedown than an exchange of money. That said, I often think “why not both?”
Anyway, it’s clear people think the court is how one defends their copyright. And of course that’s true, but it’s not the only way to achieve a result. It’s the ultimate way, of course, and as another commenter shared, registering copyright prior to publication offers the most legal protection and holds the “keys to the courtroom” that just don’t meaningfully exist without it.
Anyway, thanks for reading and the thoughtful comment. I appreciate it.
Great article. I love the topic as well. FWIW the reason Prince got away with Marlboro is they own the copyright to all those images and chose not to pursue anything. Also I heard the Ansel image is in the public domain.
Ansel’s trust says it’s not public domain, and from what I could tell during my AI moonrise research, apparently its copyright status has been “disputed” since the 60s. I gathered that meant it’s a “he said she said” situation that has been yet to be definitively settled.
For the sake of creators reading this, you mischaracterize the role of registration a bit. Although copyright attaches automatically upon fixation of a work, it is a paradox of U.S. law that enforcement of those rights is nearly impossible without timely registration (i.e. prior to infringement, notwithstanding the 3mo publication grace period). Yes, it is conceivable to self-enforce and/or show actual damages in a lawsuit, but as a practical matter, these are unreliable paths to remedy. For instance, provable actual damages would have to exceed the cost of litigation -- a fact pattern so rare that this is foundational to the rationale for statutory damages.
Simply put, if the infringing party asks an attorney about a claim, the first thing that attorney will do is check registration status. If the work is registered, and the claim looks sound, they will likely recommend settling. If the work is not registered, they are likely to tell their client to ignore the claimant because they are barred from filing a claim in court. Of course, one should register upon discovery of an infringement because 1) that work may be attractive to another infringer; and/or 2) the first infringer may infringe again, at which point they would be vulnerable to a federal claim. This in fact happened in one of the high-profile Richard Prince cases: https://illusionofmore.com/richard-prince-new-portraits-show-was-a-big-fair-use-error/
Bottom line: registration is the legal backstop that provides a rationale for settlement.
Yes, thank you. All true. BUT… I find a more prevalent misunderstanding to be “I have not registered my copyright and therefore I am utterly powerless to take any steps to protect it.” Stemming from the idea that lawyers offer the only way to protect one’s work, and therefore many ignore the process entirely.
What I hope creators take away from this is a better understanding of the idea that when it’s created it’s copyrighted and there are myriad small things they can do to protect their work that do not require involving lawyers.
But yes, if someone is hoping for anything “meaningful” in terms of financial remedy, the timely registration of copyright is absolutely essential as you explain. I certainly don’t want to give the idea that’s unimportant.
Thank you for reading and adding to the discussion.
I've never resolved the "street photographer" and paparazzi issue clearly. He takes your image in a public location, where there is no expectation of privacy. He owns the copyright for sure, but can he post that image in his portfolio to advertise his photography without a model release? Can he sell the image? And if there's a crowd surrounding a celebrity, would they need a release from any identifiable person in that image to sell it? let's skip the newsworthy events. You were just waiting for the bus to arrive.
I am not a lawyer but this is my understanding: There’s the making of a picture and there’s the selling of a picture. Short of crimes (trespassing, abuse, etc) it’s rarely illegal to take a picture. But I need your permission (if you’re identifiable in the frame) to license the image for a commercial purpose (ie not news, not art) because you get to say how your likeness is used for commercial purposes. For art there is no such protection. (Art gets a wide berth.) Paparazzi is selling the images as news (editorial) not commercial (advertising) and so legally protected. Your portfolio is a gray area but, displayed publicly to promote your business, likely to be considered a commercial use.
So go take pictures of me waiting for a bus and sell art of it as much as you’d like. But don’t license it to the bus company for use in promoting their business unless you have my permission. AND don’t forget, anybody can sue anybody for anything, and winning can still be incredibly cost prohibitive.
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.
I would think so too, as the “transformative” standard for fair use does not seem to be met — either visually or in terms of taking an image from one realm (advertising) to another (art) a’la Richard Prince. But as with all things copyright, particularly when new technologies intersect with the art world, who the heck knows.
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.
Agreed. If you want meaningful legal protection, registering prior to publication is essential.
In my experience, many photographers do not typically register their work. Myself, unfortunately, included. There is so much irritant infringement, and so (relatively) little “big payday” type of thing, I think many of us sadly neglect it.
I’ve spoken with several photographers over the years who dedicate a decent amount of time and attention to enforcing their copyrights. My takeaway is that, in most cases, they see involving a lawyer as the last step in a process that largely involves communicating directly with an infringer in an effort to achieve a result, which is as often more about a takedown than an exchange of money. That said, I often think “why not both?”
Anyway, it’s clear people think the court is how one defends their copyright. And of course that’s true, but it’s not the only way to achieve a result. It’s the ultimate way, of course, and as another commenter shared, registering copyright prior to publication offers the most legal protection and holds the “keys to the courtroom” that just don’t meaningfully exist without it.
Anyway, thanks for reading and the thoughtful comment. I appreciate it.
Great article. I love the topic as well. FWIW the reason Prince got away with Marlboro is they own the copyright to all those images and chose not to pursue anything. Also I heard the Ansel image is in the public domain.
Ansel’s trust says it’s not public domain, and from what I could tell during my AI moonrise research, apparently its copyright status has been “disputed” since the 60s. I gathered that meant it’s a “he said she said” situation that has been yet to be definitively settled.
Thanks for reading, Rob!
Great piece, Bill!
This is just the kind of pick me up I needed as I head into the weekend! :)
For the sake of creators reading this, you mischaracterize the role of registration a bit. Although copyright attaches automatically upon fixation of a work, it is a paradox of U.S. law that enforcement of those rights is nearly impossible without timely registration (i.e. prior to infringement, notwithstanding the 3mo publication grace period). Yes, it is conceivable to self-enforce and/or show actual damages in a lawsuit, but as a practical matter, these are unreliable paths to remedy. For instance, provable actual damages would have to exceed the cost of litigation -- a fact pattern so rare that this is foundational to the rationale for statutory damages.
Simply put, if the infringing party asks an attorney about a claim, the first thing that attorney will do is check registration status. If the work is registered, and the claim looks sound, they will likely recommend settling. If the work is not registered, they are likely to tell their client to ignore the claimant because they are barred from filing a claim in court. Of course, one should register upon discovery of an infringement because 1) that work may be attractive to another infringer; and/or 2) the first infringer may infringe again, at which point they would be vulnerable to a federal claim. This in fact happened in one of the high-profile Richard Prince cases: https://illusionofmore.com/richard-prince-new-portraits-show-was-a-big-fair-use-error/
Bottom line: registration is the legal backstop that provides a rationale for settlement.
Yes, thank you. All true. BUT… I find a more prevalent misunderstanding to be “I have not registered my copyright and therefore I am utterly powerless to take any steps to protect it.” Stemming from the idea that lawyers offer the only way to protect one’s work, and therefore many ignore the process entirely.
What I hope creators take away from this is a better understanding of the idea that when it’s created it’s copyrighted and there are myriad small things they can do to protect their work that do not require involving lawyers.
But yes, if someone is hoping for anything “meaningful” in terms of financial remedy, the timely registration of copyright is absolutely essential as you explain. I certainly don’t want to give the idea that’s unimportant.
Thank you for reading and adding to the discussion.
I've never resolved the "street photographer" and paparazzi issue clearly. He takes your image in a public location, where there is no expectation of privacy. He owns the copyright for sure, but can he post that image in his portfolio to advertise his photography without a model release? Can he sell the image? And if there's a crowd surrounding a celebrity, would they need a release from any identifiable person in that image to sell it? let's skip the newsworthy events. You were just waiting for the bus to arrive.
I am not a lawyer but this is my understanding: There’s the making of a picture and there’s the selling of a picture. Short of crimes (trespassing, abuse, etc) it’s rarely illegal to take a picture. But I need your permission (if you’re identifiable in the frame) to license the image for a commercial purpose (ie not news, not art) because you get to say how your likeness is used for commercial purposes. For art there is no such protection. (Art gets a wide berth.) Paparazzi is selling the images as news (editorial) not commercial (advertising) and so legally protected. Your portfolio is a gray area but, displayed publicly to promote your business, likely to be considered a commercial use.
So go take pictures of me waiting for a bus and sell art of it as much as you’d like. But don’t license it to the bus company for use in promoting their business unless you have my permission. AND don’t forget, anybody can sue anybody for anything, and winning can still be incredibly cost prohibitive.
For the lowdown, Google Nussenzweig v. DiCorcia