Joint Copyright Issues – When You Work With Someone Else

In general, when the shutter on a camera is tripped to make a photo, the photographer who pressed the button owns the copyright. But photographers often work with others when making their photographs, such as the art director, stylist, assistant or even the Photoshop editor. So does that person get to share with the photographer the copyright of the photograph? It depends.

Unless it is agreed to in writing, if the work done by the other person would not qualify on its own to be copyrightable – such as when the art director has the “idea” to place the model on the hood of a red car – then the copyright is not jointly held. Neither will a copyright for a photograph automatically be deemed shared even though the contributors intended to create a “unified” work. Note that these rules do not apply to the “work for hire” scenario or when you are transferring a copyright.

Instead, for a photograph’s copyright to be jointly held with someone other than the photographer, both the photographer and the contributors must have intended at the time the photograph was made to be joint authors. Specifically, the Copyright Act of 1976 states that a joint work is “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or inter-dependent parts of a unitary whole.” This question is important because when you share the copyright of a photograph with others, you must share the profits from exploiting the copyright.

Regardless of the law, though, a contributor to your photograph still may make a claim for joint copyright ownership of it. While you should be able to thwart those efforts, it can cost you time and money and create ill will. So be sure that any documentation that you are required to sign for a job clearly gives you sole ownership of the copyright. And when you hire assistants for your shoot or for Photoshop editing, put it in writing with your assistant that you retain sole ownership of the copyrights regardless of the work performed.

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Technorati Tags: copyright law, photography business

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Honoring the Copyrights of Composers, too

Many photographers use music to enhance their photography. But since music is a work protected by copyright law, make sure that you honor the copyright of the composer, too.

Most photographers recognize that copying music from a friend or downloading from a music sharing website is illegal. But even if you purchased the CD or song outright, you may be infringing on the copyrights if you use the music for more than personal purposes.

When you buy music, you are not purchasing the copyright. Instead, you are getting a license to use the music in specific ways. It’s the same as licensing your photo to a company for a specific use. If the company uses your image beyond the established permissions, your copyright is infringed. If you give your bride copies of the photos from her wedding with permission to use them for personal use, she would violate your copyright if she even donated them to “Bride’s Magazine.”

In general, when you buy a CD or a song, the permitted use is for personal purposes only. If you play the music at a party at your house, you probably are still using the music within the particular boundaries. But if you play the music in your commercial studio or used it to accompany your slideshow presentation for a client, you more than likely have gone beyond the rights granted to you when you purchased the CD. Check the small print on the CD to be sure.

So what are your options if you want some music for your photography? You can write your own music or you can get permission from the composer. A couple of websites make it easier to obtain those rights: www.musicbakery.com or www.freeplaymusic.com. You also can use software such as Apple’s new Soundtrack Pro or Garage Band to create your own music. These programs are easy to use, even if you don’t have much musical skill.

Just as photographers don’t want their copyrights infringed, composers don’t either. Respect the composer’s work. Get the necessary permission when using music to support your photography.

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Copyright Licensing Issues

When you own a copyright to a photograph, you have complete and exclusive control of how it is reproduced, displayed and distributed. These rights may be assigned, sold, transferred or given away. If you decide to authorize others to use your copyright, which also is known as licensing, you may want to consider the following items:

a) Who are you giving the rights to?
b) What specific rights are you granting?
c) Are you authorizing print and/or electronic rights?
d) If you grant electronic rights, what kind? CD? Web?
e) For what time are you granting the rights?
f) Will the rights be exclusive?
g) How will the rights be used? What market or industry?
h) What territory is covered by the rights? North America? English-speaking countries? Worldwide?
i) Are there any work-for-hire implications?
j) How will you be paid? By a flat fee? By royalties?
k) If paid by royalties, how will the royalties be calculated?
l) When will you be paid?
m) Will you allow certain alterations of the work in the use?
n) Will you require certain items with the usage? Copyright notice? Photo credit?
o) Who is responsible for loss, damage or theft of the work?
p) Do you want samples of the use?
q) Specifically retain all other rights to your copyrights – you never know what future usage technology will bring.
r) Make the license subject to being paid in full.

While licensing rights like those referenced above can be done verbally, it is best to put them in writing. You will minimize confusion, and you will have something concrete to rely upon if a dispute arises. To be sure that every important aspect of licensing is addressed, ask an attorney who is familiar with these issues to review the license.

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Don’t Sit On Your Copyright Infringement Claim!

When someone infringes your copyright, you have a limited time to make your claim. This is based on a legal principle called “statute of limitations.” Statutes of limitation, in general, are laws that prescribe the time limit to file lawsuits. The deadlines vary by the type of claim and maybe by the state where you live. The purpose of them is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.

Because copyrights are governed by federal law, there is only one statute of limitations for claims related to them. Copyright infringement claims have a three-year statute of limitations from the “last act” of the infringement. What constitutes the last act can vary. For example, if your image is published in a newspaper without your permission, you have three years from the date that the newspaper was distributed to file your claim in court. But if the infringement is continuing, such as when someone is using your image on the web without your consent, then the courts disagree whether the limitation period begins to run on a continuing wrong till the wrong is over and done with. It sometimes starts when you have “constructive” notice of the infringement, even if you don’t have actual knowledge of it.

Determining when a statute has started to run can get a bit tricky. If someone uses your photo without your permission, don’t sit on your claim. Note, however, to pursue any copyright infringement claims in court, you must first register your copyright with the U.S. Copyright Office.

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Protecting and Prosecuting Your Copyrights

When your image is used without your permission, your copyright is infringed. You have several options at this point.

You always have the option of doing nothing. You may not care that the non-profit wolf society is using one of your wolf images. You may only want the society to give you proper credit. If so, write the society a letter officially giving it the right to use the image (be sure to designate the parameters of that use), but insist that you get a photo credit with a copyright notice. Also ask the society to add your website name. You may get additional work from the society or others.

Your most aggressive option is to pursue your legal remedies by filing suit. Remember, your copyright must have been registered with the Copyright Office. To file suit, get an attorney to help you because the legal procedures are complicated.

Usually, your most profitable and easiest road is the middle one. Since you have your proof of registration, you need only to contact the infringer to put him on notice. If the infringer is a business-savvy person, he will know that he’s in trouble. If he doesn’t understand the trouble he’s in, he will as soon as he talks with his attorney. He will want to avoid the legal fees that will be imposed both by his and your attorney. So make your demand for statutory damages by letter and you will get your just rewards much more quickly.

The weight of your demand letter is dramatically increased if it comes from an attorney. The infringer will recognize that you mean business and are prepared to go forward with suit if the infringer doesn’t respond appropriately.

Protecting and prosecuting your copyrights goes hand in hand. To best protect your rights, what you do after your copyright is infringed is as important as what you do beforehand.

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Copyrights Here, There and Everywhere

You take a picture of a city street. Look closely and you’ll see copyrighted material everywhere in your photo. The obvious copyrights are on the billboard, the newspaper stand and products in the store window. The less obvious copyrights are in the sculptural ornamentation of the lamppost, the patterned fabric of a woman’s skirt and the toy the kid is holding. You will never be able to track down all of these copyright owners to get their permission to use the photo. Are you out of luck if you want to use it? Maybe not.

While copyright law can be restrictive on photography, it is not irrational. Copyright law includes the doctrine of “fair use” that allows unauthorized use of copyrights in certain circumstances. The courts recognize that free expression and avoiding law suits over minor issues are more important than protecting intellectual property rights.

The doctrine of fair use means that copying will not infringe a copyright when it is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” Four factors are considered to determine whether the use qualifies under the doctrine:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used; and
The effect of the use upon the potential market for or value of the copyrighted work.

So if the copyrighted material that appears in your photo is covered by these four categories, you do not have to be concerned with getting permission to use it. On the other hand, it’s a judgment call. Would a court agree with your position? It may be costly to find out. The next best alternative is to get a copyright lawyer’s advice. The lawyer can give you an opinion based on research and experience. But the safest and sure way to use a copyrighted work in a photograph is to get permission in writing from the copyright owner.

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Practical vs. Legal

Depending on the circumstance, a model or property release may not be legally necessary. But getting one never hurts and it may help. It may make some people think that they can’t sue you (they can, even if their cause of action is bogus). If they do sue you, having a release may shorten the litigation and it could help you win. Even when you win, though, your defense fees can be costly.

In those situations when a release is not required, other legal issues may be presented when photographing a person, an animal or other property. These include trespassing, trademark, false light or invasion of privacy. All of this can get confusing. That’s also why it’s dangerous to take anecdotal advice.

For example, if one person has a fashion shoot in a national park and needs a permit, it does not mean that all professional photographers who shoot in a national park need a permit. While some stock agencies may require a property release for an animal photo, it does not mean that it’s legally required. It means that they are being cautious in this litigious society.

I recently photographed some huskies at a public park. I wasn’t trespassing on public property, the dogs are not trademarked and I did not misrepresent them (also known as “false light”) in my photos. Further, since animals don’t have privacy rights like humans do, I did not need to get a model or property release from their owner. But I got one anyway. I asked the owner in writing for permission to use the photos. I did that that only to keep the owner from getting upset and to avoid any hassle with a stock or advertising agency.

What is often practical is not always legally required. To figure out the differences and to make the best decisions about what to do, talk to an attorney to discuss your particular situations.

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Better Late Than Never – Register Your Published Photographs

There’s no doubt that it’s easier to register your photographs before you publish them. But if you didn’t get it done then, it’s better late than never to register your published images. The good news is that it’s more convenient and cheaper than ever to register your photographs after they have been published.

Pursuant to a recent change in copyright law, you now can register a group of published images on one form. The only requirements are that the photos must have been published in the same year, made by the same photographer and have the same copyright claimant. This should fit the profile of most photographers and their work.

Specific instructions on how to prepare your registration forms for published photographs are available from the Picture Archive Council of America at http://www.pacaoffice.org/copyright.html in “The Importance of Copyright Registration”

You no longer have an excuse. Go to the dentist, change the oil in your car, and register your images, both unpublished and published. It’s better late than never.

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Know Your Rights and Limitations When You Photograph Property

In general, if property is visible and can be photographed from a public place, you don’t need a property release to use the image in any manner. This exclusion to copyright law includes buildings located on the property, but not statues or other items that may have separate copyrights. There also are restrictions on some governmental property for security purposes, such as federal seals and insignia, and military or nuclear installations. But if the statue or copyrighted item has minimal presence in your image, your photo still may fall under the exclusion. Otherwise, you must get permission to use the image for commercial purposes.

Nevertheless, some companies have tried to prevent the use – both commercially and editorially – of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the lone Cypress tree at Pebble Beach, CA, and the “Hollywood” sign. While these attempts have been unsuccessful, they can be expensive to litigate. Is it worth it to you to spend thousands of dollars to test this issue? That’s a choice you’ll have to make.

On the other hand, photographers should protect their rights, too. Don’t be intimidated from photographing what is within your legal rights. Check with an attorney to fully understand and exercise your privileges.

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Know Your Rights and Limitations When You Fly

The Transportation Security Administration’s (“TSA”) mission is to “protect [ ] the Nation’s transportation systems to ensure freedom of movement for people and commerce.” The TSA, not the airlines, determines what can pass through the secured area of an airport.

So it’s great that the TSA allows photographers an extra bag of “photographic equipment in addition to one (1) carry-on and one (1) personal item through the screening checkpoint. The additional bag must conform to your air carrier’s carry-on restrictions for size and weight.”

The catch is that your airline, not the TSA, has the right to disallow the third bag. While you can get it through security, you may be forced to check it at the gate. Since many photographers need two bags for photography equipment plus a briefcase for their laptops, you may not want to have to choose which bag is thrown below when the third bag is disallowed.

E-mail messages to Delta, Northwest, Alaska, United and American Airlines asking whether they allow the extra photography bag either were not returned or the responses quoted/referred to baggage guidelines from their websites that allow only two pieces of carry-on luggage. Even if any of the replies had been positive, the rules may be applied differently at the gate.

The safest plan is to go with two carry-on bags, at least for now.

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