Duration of Copyrights

Copyrights don’t last forever. It’s a good thing because we now can play Beethoven’s Moonlight Sonata or take a photograph of Michelangelo’s statue of David without paying royalties. Known as being in the “public domain,” the law is designed so that works of authorship eventually (or, in a few cases, immediately) are made available for all to freely use and benefit from them.

Works go into public domain either because: (1) the author failed to satisfy statutory formalities to perfect the copyright; (2) it is a work of the U.S. Government; or (3) the term of copyright for the work has expired.

Item (1) refers to work published prior to March 1, 1989. The copyright notice had to be affixed to the work or it immediately lost protection (the copyright protection for some foreign works has been restored even if they were published without notice before that time) Works published without the copyright notice between 1/1/78 and 3/1/89, the effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. The law has changed so that work published after that time does not need the copyright notice for protection. But it’s a good idea to use it, anyway. See my other blogs for additional information.

Item (2) provides that works of government employees, such as maps, charts and surveys, are in the public domain from the date of creation.

Item (3) allows a certain time of copyright protection for the benefit of the creator. The time for that protection has changed several times over the years, so it’s difficult to explain when works fall into the public domain. The chart found at http://www.unc.edu/~unclng/public-d.htm is helpful to determine those dates.

Fortunately, copyright protection is easier to obtain and to keep for longer than ever. So do what you can to continue to protect your work. Register your copyrights today.

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The Model Release Passes Muster

Photographers often follow certain legal practices to protect themselves, but cannot be sure that they will work when challenged. One such example is using a model release to obtain a model’s permission to use photographs taken of him or her in specific ways. The good news is that the standard model release was recently put to the test, and it passed with flying colors.

In 2002, Russian tennis player, Anastasia Myskina, who then was 20 years old, posed for photographs by Mark Seliger. Seliger first photographed Myskina for the Gentleman’s Quarterly’s 2002 “Sports” issue and then photographed her topless. Myskina had signed a model release that said she consented to the use of her name and the pictures by the magazine and by “others it may authorize, for editorial purposes.”

After winning the French Open in 2004, a Russian newspaper published the topless photos. Myskina filed an $8 million lawsuit against the publisher, Conde Nast Publications Inc., Gentleman’s Quarterly and Seliger alleging emotional distress and economic injury.

The New York judge who presided over the case held that Myskina’s rights were not violated despite her insistence that she did not understand the signed model release and was not fluent in English at the time. Instead, the Judge stated that, “absent allegations of fraud, duress or some other wrongdoing, Myskina’s claimed misunderstanding of the release’s terms does not excuse her from being bound on the contract. Nor can she avoid her obligations under the release because of her purported failure to read its contents.”

Even though the photographer allegedly told Myskina that the topless photos were for “himself,” the Judge found that the oral agreement contradicted the plain language of the written agreement and was not admissible. The Judge then dismissed the case.

As a photographer, it is important to protect yourself as much as possible. Fortunately, the model release is one way that has been proven to be effective.

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Safeguards for Collective Works

Photographers often submit photos to publishers for inclusion in a book or magazine. But what happens to the copyright for that photo? Does it transfer to the publisher? What is the publisher allowed to do with the copyright?

Unless the copyright to a photo is specifically transferred in total to a publisher, the publisher’s use of that photo is limited by the usage agreement. The publisher, however, creates a new copyright, called a “collective work,” when your photo is combined with other photos, text, illustrations, etc. Your photo then is covered by two copyrights – one for the photo itself, and the other as part of a collective work.

As the owner of the copyright to a collective work, the publisher may reproduce and distribute your contribution as part of that particular collective work, but not as a separate item. The publisher also may distribute any “revision” of that collective work and any later collective work in the same series. “Revision” also is thought to be a new “version,” which still is considered to be one work.

Revision became an issue with some photographers who had contributed work for National Geographic magazine. There, National Geographic distributed via CDs previously published magazine issues almost exactly as they appeared in print, except that National Geographic added a search engine and index. The photographers argued it was a new use of their images and wanted to be paid for it. National Geographic argued that the CDs were a revision of the collective work (the magazines) so that the usage was included in the initial grant. Because the photographers were located in different parts of the United States, they filed their lawsuits in separate courts and both cases were appealed. While the reasons why aren’t covered here, in sum, the 2nd and 11th Circuit Court of Appeals came to different conclusions about whether the CDs were a revision or a new product. This inconsistency in the law will have to be resolved later.

While hindsight is 20-20, we can learn from this experience that the best way to protect your copyrights is to be as specific as possible when granting usage rights. If you don’t want your photos used for certain purposes, say so. But if your agreement doesn’t address a usage, a court that might not agree with your position just may be the one that determines your rights.

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Technorati Tags: copyright law, photography business

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Protection for Your Derivative Works

Here’s the issue: you photograph a car for the manufacturer in 2004 and register the photo with U.S. Copyright Office. In 2005, the car maker produces the same car except with a different style of wheels. The client asks you to shoot only the new wheels and add them to the original photo using Photoshop. The new photo then will be distributed. Do you need to register the new photograph to obtain full statutory copyright protection? You do if it would qualify as a derivative work.

As the owner of a copyright, you have complete and exclusive control to do a variety of things to your photograph, including the right to prepare derivative works based on the original image. But when you alter a work, it’s a judgment call as to whether it constitutes a derivative work or is only a minor variation of the original work.

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other modifications. A derivative work must be different enough from the original to be regarded a new work – in other words, it must contain some substantial, not merely trivial, originality. Making minor changes or additions of little substance to a preexisting work will not make it a new version for copyright purposes.

One of the tests to decide whether the new work is a derivative work is whether the new material is original and copyrightable in itself. Note that, for reasons not covered here, the standard of originality is higher for derivative works than it is for those not based on preexisting works.

If your photo meets the definition of a derivative work, it must be registered for full statutory protection. If the photo only is slightly modified and does not qualify as a derivative work, then the original registration covers the work.

In the case cited above, since the photograph of the wheels may be considered original and copyrightable itself, adding it to the original photograph probably makes it a new work. For the most protection, registering the new work is the safest bet.

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Protecting Your Leased or Consigned Photographs

Photographers often lease artwork to businesses or sell photos on consignment. But if the business or gallery goes bankrupt, your photos may become part of the bankruptcy estate. The creditors of the business or gallery then may seize your work without further obligation to you.

Some states have enacted laws to protect photographers in these specific instances. For example, the Uniform Commercial Code [“UCC”] has been enacted in some form in every state. Check with your local attorney to determine whether your state has adopted the specific UCC provisions that will protect your consigned goods from being seized.

Other states have passed laws purposely to protect consigned goods. Many of them require the consignment agreement to be in writing. Following are some necessary and other helpful items to include in the agreement:

  • who is responsible for damage to the photographs
  • prices to charge for the photographs
  • specific list and description of the photographs being consigned
  • the gallery’s fees and responsibilities
  • the requirement that the gallery post a sign that the goods are consigned

It may also help to include a clause in the consignment contract that states: “If any lien, attachment or bankruptcy petition is placed against the Gallery, this Agreement shall terminate immediately and the Gallery will return all of the Photographer’s works to the Photographer.” If the gallery files bankruptcy or becomes insolvent, get a lawyer to help you protect your property.

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Technorati Tags: Uniform Commercial Code, photography business

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Infringement Nightmare – Morals to the Story

True Story:

A photographer recently settled for $275,000 with the Dallas Cowboys after the Cowboys used one of his pictures on clothing and other merchandise without permission. But after the settlement was reached, the Cowboys barred the photographer from ever working in Texas Stadium where the Cowboys play.

The photographer had given a digital file of a photograph to the Cowboys who considered it for use on season tickets. The Cowboys then bought only 250 copies to resell as prints to the public. Later, the Cowboys used the same image on clothing and other items, without getting permission from the photographer for the additional usage.

The photographer had not registered his photo with the U.S. Copyright Office.

When the photographer discovered the infringements and inquired about it, the Cowboys offered him $1,000 in merchandise gift certificates. After trying to negotiate a settlement on his own for about a year, he hired a lawyer. Three years later, a settlement was reached.

Morals of the story:

  • Many infringements come from uses beyond that agreed to. The infringements can come from uses on different products, for longer terms, in extra forms such as print or electronic, in other locations, etc. Watch your client’s use of your work closely.
  • Register your images with the U.S. Copyright Office before you give, or within three months of giving, them to a client.
  • Even if you haven’t registered your photographs with the U.S. Copyright Office, you are entitled to actual damages from infringements. They can be hard to prove, but sometimes they can add up to substantial sums.
  • While you may be a good negotiator, it can help to have a lawyer to give weight to your position.
  • If you have to sue a client, you probably won’t get work from that client again.
  • Legal matters can take time; be patient for your rewards.

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Copyright Notice – Not Required But Helpful

You’ll often see a copyright “notice” – the familiar &copy or the word “copyright” with a date and name of the copyright owner – posted on works of authorship. This copyright notice is no longer required for copyright protection, but it may be a good idea to use it.

Copyright is a legal form of protection granted by the U.S. Constitution for original works of authorship. Things such as books, plays, music, photographs and even websites are protected by copyright law.

If you use the copyright notice, it may stop someone from stealing your work, either because it reminds them that the work is protected or because the notice interferes with their use of the work. Also, it helps to post a copyright notice on your work because the infringer then can’t say the use was innocent. You can even use the copyright notice without registering your work with the U.S. Copyright Office, but there are many other reasons why you should register your work.

If you have a website to show your photographs, it likewise is helpful to post a copyright notice on your website’s pages. Again, there are no specific requirements for the notice or no certain language is needed for copyright protection for your photos on your website or even the website itself. One caveat – the words “All Rights Reserved” are needed for protection in places like South America, but it’s difficult to prosecute your images there anyway.

It’s odd that a company (whose owners are not lawyers) would “license” copyright language for others to use on their websites for $9.95, when nothing is required for protection. Put what you want on your website. Put only the basic notice like this: Copyright 2007 Carolyn E. Wright All Rights Reserved. Or, be more aggressive and use the language I use on my photography websites:

  • All photographs appearing on this site are the property of Carolyn Wright Photography. They are protected by U.S. Copyright Laws, and are not to be downloaded or reproduced in any way without the written permission of Carolyn Wright Photography. Copyright 2007 Carolyn E. Wright All Rights Reserved.

Feel free to copy and use that statement at no charge from me. Instead, take the $9.95 that you would have spent on licensing copyright language and put it towards registering your website and photographs. You’ll be better off in the long run.

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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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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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