Frequently Asked Questions about Copyright
See also Frequently Asked Questions about Registration and Frequently Asked Questions: Practical Concerns
I sold a print of one of my images. Does that mean I sold the copyright to it, too?
If I am photographing a public building, am I violating the copyright of the architect?
Q: How long is my registration valid?
A: In most cases, your life plus 70 years. There are, however, a few important exceptions.
Q: Do I have to renew my copyright?
A: No. Works created on or after Jan. 1, 1978, are not subject to renewal registration. For works published or registered prior to 1978, renewal registration is optional, but advised after 28 years. See Circular 15, “Renewal of Copyright”, and Circular 15a, “Duration of Copyright”.
A: Although many people have their own notions about “fair use” of an image, there is a specific statutory definition restricting this category “to purposes such as parody, criticism, comment, news reporting, education (including the distribution of multiple copies for classroom use), scholarship, or research.” A good resource on this topic can be found at Stanford University.
Q: Can I appeal the Copyright Office’s decision?
A: Yes. The tutorial section “If you are turned down” discusses the appeal process.
Q: Suppose that I have a contract with a client stating that no rights to my work are granted until I am paid in full, and this client publishes my photos before I have been paid. Can I sue for breach of contract, or is it a copyright violation? Or don’t I have a case at all?
A: Generally, if your paperwork clearly and consistently states that no rights are granted until and unless payment has been received in full, you probably could sue for copyright infringement, rather than breach of contract.
Q: How close is close when it comes to infringing on another photographer’s copyrighted image? If the best shot of a scene is from the same spot, at about the same time of day, and under the same conditions as another, already-copyrighted image, is it an infringement to take a similar shot and market this commercially?
A: The key word in your question is “similar.” To prove copyright infringement, a plaintiff would have to show that a new work constitutes “actionable copying” by being “substantially similar.”
For example, a recent case in Louisiana concerned a photographer, well known for a certain photo of a famous view of New Orleans’ Jackson Square, who sued an artist selling a view of the same site taken from almost the same spot. The two photos have many similarities: Both were taken at the same time of day. Both incorporate mist. Both have banana leaves framing the photo.
But one has rain puddles on the ground while the other does not. In one photograph, the elements are centered, while in the other they are off-center. The St. Louis Cathedral is more prominent in one than in the other. The depth of field in one photograph is focused on the gate to the Square, while in the other the focus is further back. The lighting and positioning of elements in each image are slightly different.
To the judge, the original seemed to be artistic, while the second did not achieve the same level of artistry. The judge ruled that no infringement had taken place — that while the photos were similar (even framed similarly), and even though the artist admitted he had seen the photographer’s original work before he photographed his, they were not “substantially similar.” If you are curious, you can read the complete ruling.
Additional information on the question of substantial similarity, written by attorney Andrew Berger, is freely available on the Editorial Photographers web site.
Q: : When I submitted my images to a stock agency, I retained the copyright. Yet when I recently saw one of my images on a web page, it had the stock agency’s name next to the copyright symbol. What gives?
A: If you retained the copyright, as you should have, then the situation here is that the agency is protecting the digital file of the photo, which is displayed on the web page you saw. The copyright to the original photo is not what is being claimed by this copyright notice. If you have questions, concerns or even suspicions that the stock agency might have overstepped its legal and contractual bounds — if, for example, your agency agreement limited the use of your images to certain media types, of which this is not one — contact the stock agency to inquire further.
Q: I sold a print of one of my images. Does that mean I sold the copyright to it, too?
A: Not unless you agreed to, or the purchaser demanded a transfer of the copyright as a part of the deal. The Copyright Office states: “Mere ownership … does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.”
Q: I gave my work a specific title. I have now seen another work, created after mine, that is using the same title. Is this an infringement of my copyright?
A: No. Titles, names, short phrases, ideas and slogans cannot be copyrighted.
Q: It can take as long as eight months to receive a certificate of registration. What if there is infringement of my copyright during that time? Do I lose my ability to sue for statutory damages or ask for the other side to pay my court costs?
A: In the words of the Copyright Office: “A copyright registration is effective on the date that all the required elements (application, fee and deposit) are received in acceptable form in the Copyright Office, regardless of the length of time it takes the Copyright Office to process the application and mail the certificate of registration.”
Q: If I do work for a large company, and make a licensing arrangement with them, can the company turn around and grant usage for the photos to one of their subsidiaries, without added compensation to me? Is this a copyright violation?
A: Trying to resolve this issue could be long, nasty and expensive. The best way to avoid such situations is to design your contracts and licensing agreements to include the granting of specific and thorough terms, as well as specifying any usage that you wish to exclude. Identify the specifics of all usage you are granting, including territory, duration, degree of exclusivity, etc. Before you sign, make it clear in the document exactly who is receiving the license, whether they can or cannot assign their rights, and to whom (if anyone) they can assign them. Consult the ASMP Professional Business Practices in Photography book for examples.
Q: If I am photographing a public building, am I violating the copyright of the architect?
A: Maybe. It depends on what you will be doing with the image (see Fair Use, above) as well as on specifics about the building and the architect. You may also wish to check out a list of buildings and other subjects with special clearance and trademark issues at the PACA web site.
Q: Long ago, I transferred my copyright to a publisher. Now I wish I had it back. Is there anything I can do?
A: Sometimes there is a way. The Copyright Act provides for recapture of rights after 56 years for pre-1978 copyrights and after 35 years for newer copyrights. But we should warn you that the rules are quite technical and full of special cases; you will want professional advice. For starters, you can read Copyright Termination: How Authors (and Their Heirs) Can Recapture Their Pre-1978 Copyrights on the CopyLaw.com website.
See also Frequently Asked Questions about Registration and Frequently Asked Questions: Practical Concerns
More Resources are at The Copyright Office FAQ.