If you follow me on Facebook, you know that copyright law pertains to photographers and bloggers alike. We are so honored to have Photolaw.net as a guest today – this information will help photographers and bloggers alike.
This article was written for MCP Actions exclusively. Please link to the post but do not copy the materials below.
If someone violates your copyright or removes your watermark from a photo, you can learn more on what to do here.
COPYRIGHT LAW AND ONLINE USE
© 2011 Andrew D. Epstein, Esq. and Beth Wolfson, Esq., Barker Epstein & Loscocco,
10 Winthrop Square, Boston, MA 02110; (617) 482-4900; www.Photolaw.net.
How can photographers protect their photographs from copyright infringement online, and how can bloggers make sure they do not infringe another person’s copyrights?
What is Copyright?
Copyright gives photographers, artists, authors, musicians, choreographers and architects the exclusive right to use and reproduce their works. Essentially, all original works can be copyrighted. This includes photographs, art works, sculpture, writings, music and computer software. Virtually all works created or first published after January 1, 1978 is protected by copyright. Many works created prior to 1978 are also protected.
The Copyright Act is federal law, not state law. Consequently, the law is uniform throughout the United States. Also, since the United States has signed several international copyright agreements, copyright protection is effective essentially all over the world.
Copyright gives the creator or author of a work the power to control the work. The owner of the copyright has the exclusive right to control if, when, how and how often his or her work can be used or copied.
Generally, owners of copyright have the exclusive right to use and copy their works. Copyright owners can also authorize others to use their works. The use or copying of any work without permission from the owner of the copyright is a violation of the United States Copyright Act.
Copyright is not a single right, as the word may suggest, but is a bundle of rights. Any part of the bundle can be retained or sold, leased or given away, either individually or in groups. The ability to dispose of any portion of the bundle of rights is reserved exclusively to the owner of the copyright.
For example, if a company is authorized to use a particular photograph in a brochure, the brochure is the only place that the photograph can be used. The use of the photograph in a newspaper advertisement without permission would be a violation of the exclusive rights of the copyright owner. Similarly, if a person is authorized to use an illustration for advertising purposes for only one year, the illustration cannot be used for more than one year without permission.
How can I copyright my photograph?
A copyright originates at the moment a work is created. For a photograph, the copyright is created at the moment the image is developed. If a photograph is taken with a digital camera or a cell phone, the copyright originates at the time the image is saved to memory. As long as the work exists in tangible form or it can be understood or reproduced with the aid of a machine, it is copyrighted.
You do not have to file any paperwork in order to get a copyright. A copyright is secured automatically when a work is created. This concept is frequently misunderstood. Some people still believe that there are formalities required in order to create a copyright. This is not true. Since 1978, neither publication nor registration with the Copyright Office of the Library of Congress is required in order to secure full copyright protection. When a work is created, it is automatically copyrighted.
Although a copyright is created automatically when a work is created, there is a procedure for registering a copyright with the Library of Congress. Remember, registration is not required for copyright protection.
There are three benefits to registering a copyright. First, registration creates a public record of the copyright. Second, registration of a copyright is required in order to file a lawsuit for copyright infringement. Third, if a copyright is registered before there is an infringement or within three months after the first publication of a work, the owner of the copyright can claim certain alternate damages plus attorney’s fees. These alternate damages are called statutory damages and they can be awarded in a sum of up to $150,000 for willful infringements. The registration process itself, does not alter the fact that the owner of a copyright is always entitled to his or her actual damages plus any profits earned by the infringer. However, the suggestion that statutory damages and attorney’s fees are available can act as a catalyst for the quick settlement of a copyright infringement claim.
A photographer should register their portfolio photographs and all other significant or important works. The Copyright Office has made significant strides in recent years to streamline the process of group registrations of copyrights. The procedures are outlined in the website of the Copyright Office at www.Copyright.gov.
What are other safeguards I can use to make sure my photographs aren’t infringed?
It is a good idea to use watermarks, encryption, meta-data, or other digital means to make it harder for would-be infringer to copy images from a photographer’s website. We also advise our clients to use a copyright notation, such as “©,” with the date the work was created and the name of the photographer, as a reminder that the work is protected by law. Also, the copyright notation may act as a deterrent for some infringers. Removing encryption information or copyright notations is illegal under the Digital Millennium Copyright Act and significant damages are available for removing copyright information from works, whether or not the works are registered with the Copyright Office.
What is copyright infringement?
The unauthorized use of a copyrighted work is called an infringement. The Copyright Act was designed to be responsive to all technological advances. Therefore, an illustration or photograph must be licensed for use on the internet. Similarly, an illustration or photograph taken off the internet without permission is as much an infringement as if the same image were taken from a magazine and used without permission. The unauthorized reproduction of a copyrighted work even if taken off the internet is still an infringement, even if it the photograph does not have a watermark or credit a photographer as the author of the work. The Copyright Act provides stiff penalties for infringing copyrighted works. Under appropriate circumstances, penalties can include monetary damages, all profits earned by the infringer from the unauthorized use of the copyrighted work and attorney’s fees. A court can also order the destruction of all infringing copies.
How can bloggers protect themselves from claims of copyright infringement?
The safest thing to do is to assume that all works on the Internet are protected by copyright and that no work can be used or reproduced without permission.
The best way to ensure that a blogger does not violate someone else’s copyright is to ask for a license, meaning permission, from the photographer. The license can be oral or written. Obviously, the use of a clearly written licensing agreement will avoid confusion. The writing does not have to be detailed to be effective. A simple letter, invoice or email is usually sufficient. In return, the photographer will usually ask that the blogger give the photographer credit on the website as the author of the image. The photographer might also ask for a small licensing fee from the blogger, but sometimes a photographer might just enjoy the free publicity.
Another way a blogger can make sure that the images they use on their website do not violate another person’s copyright is to make sure to only use photographs that are in the public domain. A photograph is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner. However, it is often hard to know what works are in the public domain, and you cannot assume that a work is in the public domain just because it was created before 1923 or because you cannot find the name of the photographer.
Finally, a blogger can always use the concept of “fair use” as a defense to a claim of copyright infringement. Fair use permits the use of copyrighted materials for certain purposes. A blogger can use copyrighted materials if he is somehow using the work in a “transformative” way. For example, a newspaper can publish copyrighted works for purposes of reporting news and a teacher can make multiple copies of certain works for classroom use without risking infringement. Parody is another form of fair use. In parody, an artist, for some comic effect or for social commentary, may closely imitate the work of another artist, as long as the new work ridicules or comments on the style or expression of the original. In order to determine if a use is fair or is an infringement, one must determine how much of the copyrighted work is used and the impact this use will have on the potential market for the copyrighted work. If large portions of a copyrighted work are used or if the use lessons the potential market for the work, there will be infringement. Because the defense of fair use involves the balancing of factors, it does not provide a clear-cut rule. Therefore, it is always better to be on the safe side, and use as little of the work as possible to get your point across. A thumbnail might be sufficient for your purposes, rather than a full-size high-resolution image. Alternatively, you may provide a link to the photographer’s website, rather than include the image.