Q&A – Who Owns the Copyright? – Updated
Q. If I hand my camera to another person to shoot a few frames, who owns the copyright for the images?
A. Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Unless the photo is a work made for hire, then the other person – not you – owns the copyright. However, depending on the circumstances, you likely have an implied license to use the photograph for personal uses. For example, if you ask someone to take a shot of your family on vacation, you could do things such as print the photo for display in your home, post the photo on your personal Facebook page, or share the photo via email with friends or family. But you probably wouldn’t have the right to enter the photo into a contest or license it for commercial purposes.
Q. Would the outcome be any different if the person is a minor?
A. Minors may own copyrights and the Copyright Office issues registrations to minors. State laws may regulate the business dealings involving copyrights owned by minors, such as licensing. But, in this situation, an implied license also likely would be in effect. For other types of licenses from minors, be sure to get the photographer’s parent or guardian to authorize the license since minors may later void the license or contract.
Double bonus speed round:
Q. I put my camera on a tripod, set the focus and exposure manually, hand the remote control to another person who fires the shutter only when I tell him to. Who owns the copyright?
A. 17 USC 201 provides that the source of copyright ownership is the author of the work and that, in the case of a “joint work,” the coauthors of the work are likewise coowners of the copyright. Under 17 USC 101, a work is “joint” if the authors collaborated with each other or when each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as “inseparable or interdependent parts of a unitary whole.”
In general, when the shutter on a camera is tripped to make a photo, the photographer who pressed the button owns the copyright. In the situation here, did you and the person who fired the shutter have the knowledge and intention that each of your contributions would be merged as an inseparable or interdependent parts of a unitary whole (i.e., the photo)? Did you collaborate with the other to make the shot? Did the person who tripped the shutter contribute copyrightable expression? Maybe not here. But do you want to have to litigate this? Read more about this in my June 17, 2005 blog.
Courts have held that, in the absence of a written agreement to the contrary, joint authors will be deemed as tenants in common. This means that each owns an undivided interest in the entire work and each has an independent right to use or license the entire work. So to avoid any possible conflict, be sure that you have an agreement as to who owns the copyright to the photo.
Thanks to Ernie Fehler for submitting these topics.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!