Which Images Can Be Copyrighted?

These things must be true in order to copyright your photo:

  • The image must be original (in the sense that it was not copied from someone else and represents your own creative expression). If you make an exact copy of something like a painting or another photo, your copy cannot be copyrighted because it is not original. (The FAQ has further discussion of this concept.
  • You must not have signed away your rights to the image, whether through a “work for hire” situation, an employment contract, a contract that assigns the copyright to someone else, or other types of written agreements (such as a purchase order with work-for-hire provisions in the terms & conditions).

If your photo is original and you didn’t sign away your rights in a specific contract, you own the copyright to your image. Although registration is not required, we must stress the business value of registering your copyright with the Copyright Office in Washington DC — ideally within a few days of taking the picture, but in any case within three months of first publication. If you do not register your copyright within certain time limits, you put yourself at risk should someone infringe your photograph.

Defining ‘work for hire’

If you are an employee (as opposed to a freelancer or independent contractor) and you make photos as part of your job description, you probably do not own the photos you make. If you have questions about this, you should read your employment contract, speak with your Human Resources department or contact an attorney. You should request a written contract so as to determine your specific rights to your images.

If you are not an employee, but have signed a purchase order before beginning an assignment, you should read the fine print on the purchase order to determine if you have signed away any of your rights. Avoid signing purchase orders if you don’t know what you are signing. If you have questions, contact an attorney to help you answer them.

Although people use the term work for hire freely, it has a specific legal definition. According to Section 101 of the copyright law (excerpted below), a “work made for hire” is:

  1. A work prepared by an employee within the scope of his or her employment; or
  2. A work specially ordered or commissioned for use as a contribution to a collective work, if the parties involved expressly agree in writing (and sign the agreement) that the work shall be considered a work made for hire.

Who is an employee? There are a number of specific rules that determine whether you are considered an employee for purposes of specifying who owns the copyright. If your supervisor determines how your work is done, establishes the workplace and provides the equipment or other means for you to create photographs, then you are likely defined as an employee.

Furthermore, if your employer controls your work schedule, your performance of other assignments, the hiring of other assistants, and determines your method of payment, you are most likely defined as an employee.

If your employer provides you with benefits and withholds taxes from your salary, this also reinforces employee status for purposes of determining copyright ownership.

If you are considered an employee, the photographs you make on the job can be considered work-for-hire, and your employer owns the copyright — not you. This is likely the case unless you have a written contract, signed by both parties, that allows you to retain the copyright, with licensing provisions amenable to both sides.

The term of copyright for a work-for-hire creation is different from one copyrighted by a single or team creator: 95 years from date of publication, or 120 years from date of creation, whichever expires first. In a work not made for hire, the copyright term is life of the creator plus 70 years.

If you are working under a work-for-hire situation, you should be getting the benefits of any employee, including health insurance.

The letter of the law

Section 101 of the copyright law defines a “work made for hire” as:

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a sound recording, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Circular 9, a publication of the Copyright Office, expands on this.

If a work is created by an employee, part 1 of the statutory definition applies, and generally the work would be considered a work made for hire. IMPORTANT: The term “employee” here is not really the same as the common understanding of the term; for copyright purposes, it means an employee under the general common law of agency.

Circular 9 goes on to explain in further detail:

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the ten categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.