Protect Your Rights: An Introduction to Copyright

Friday August 01, 2008 by Jenny Millar, ADBASE Inc.

Posted in: Legal Affairs

With feverish talk all over the industry about the latest Orphan Works bill, this is a good time to bring up the issue of copyright. Are you copyrighting your works to protect your rights? I will outline why this is so important, so if you are unsure of the basics of copyright protection and registration, this article is a great place to start. Although I will be focusing primarily on American copyright laws, I will also include some details for my fellow Canadians. As an important note, I am not an attorney and this article is meant purely to educate and motivate you to protect your rights. If you have specific questions, please contact an Intellectual Property attorney in your state or province.

What is Copyright?

At its very essence, copyright is the legal protection given to the creator of an original work and allows the copyright holder the exclusive rights to it. As this relates to photography or illustration, these rights allow you to control how your work is used and by whom, as well as who profits from it. Plus, the term of your rights are guaranteed (in the US) to be the life of the creator, plus 70 years. In Canada, that protection is the life of the creator, plus 50 years. That could keep bringing financial benefits to your estate and your family in the future.

What Can I Copyright?

You can't copyright just anything. The work needs to be original and artistic, meaning it can't be a copy or derivative of other photographs or illustrations. Also, it must actually exist; ideas are not eligible for copyright, only your artistic expression of the idea. An important note: titles, phrases, and typefaces are protected by trademarks, another sector of intellectual property, and not by copyrights.

Why You Should

Under the Copyright Act of 1976, you are automatically the copyright owner from the time the work is created; this means that you are not required to register your images. But when you do register, you are eligible for considerably more in punitive damages should someone infringe your rights. The most important of these damages is legal fees. Companies aren't stupid, they know how much it costs to prosecute a case and count on those costs to intimidate you into not pursuing your rights. But if your image is registered, you are eligible for your attorney fees and up to $100,000 per infringement. That makes legal action on your part a lot more viable, now doesn't it?

Now, Let's Get to Registration

In order to register, you must file a registration form along with copies of the images, to the US Copyright Office:

Register of Copyrights
Library of Congress
Washington, DC 20059
202-707-3000
http://www.copyright.gov

And in Canada, you can register at:

Canadian Intellectual Properties Office
Place de Portage I
50 Victoria Ave, Room C-114
Gatineau, QC K1A 0C9
http://www.cipo.ic.gc.ca

The good news is that you can now, in the US, file online and upload your images via the Electronic Copyright Office.

There are 2 different groups that your images will fall under: published and unpublished. In order for an image to be considered 'published', it will need to meet very specific criteria as set out by the Copyright Office. These criteria are1:

  1. Each photograph was first published as a contribution to a collective work (magazine, periodical, etc) within a 12-month period.
  2. The author must be an individual artist, not an employer or other party for whom the image was made a work-for-hire
  3. Copies of the collective work must be filed

Although this may seem complicated, it is much easier to register non-published images, as these can be done in bulk. For $35, you can register all your unpublished images using a single form. And once your unpublished images are registered, they will be protected should they be published later.

So...Now What?

For any of you who are new to the assignment world, I can't say this any clearer: NEVER transfer the entire copyright to another party. That belongs to you, it is your future livelihood and you should never transfer it to anyone else. What you can do is license your work, which you can do in one of two ways:

  1. Exclusive rights: the person (or company) you grant rights to is the only entity who has these rights. These MUST be granted in writing
  2. Simultaneous Rights: license the non-exclusive rights to different entities. These can be granted verbally or in writing

For more information on licensing your work, either APA (www.apanational.com) or ASMP (www.asmp.com) have excellent materials available on their websites for American residents and CAPIC (www.capic.org) for those living in Canada. Additionally, the PLUS Coalition (www.useplus.org), is a non-profit organization dedicated to the simplification and management of image rights.

Copyright Notices

Whether or not you register your images, you are able to include a copyright notice. It isn't required by law, but there are distinct advantages to doing so, particularly with the Orphan Works bill on the table. There are a number of ways to write this notice, the most widely recognizable being © 2008, Jane Doe Photography. I highly recommend that you carry copyright notices on all your work as well as on your website, so your ownership is clear to all who are looking at your images.

Work For Hire Contracts and Joint Works

As mentioned earlier, you are the default copyright owner of works that you create. Unless those works are created under a work for hire (WFH) contract. Under these types of arrangements, you are working (however temporarily) for an employer. This means that you don't retain the copyright to the images you created for them, and can never profit from them in the future. Although we highly recommend avoiding all WFH, make sure that you factor in the lifetime value of the copyright to the price of the job, if you decide to accept this sort of contract.

Do you enjoy collaborating with other artists? If so, keep in mind that in creating an illustration or photograph together with another artist, the image is owned by both the creators jointly. Either are permitted to license the work, however all fees must be split between the co-owners.

How Do I Know If I've Been Infringed?

Do you regularly search the internet for your images? Do you keep an eye out for people who are using your imagery without permission? In order to determine infringement, an ordinary observer must think that the work looks copied from the original. If you think your copyright has been infringed, it is best to consult a lawyer to determine the best plan of action, as there are many legal considerations needed.

Another thing to consider in deciding whether you've been infringed is the concept of fair use. This allows individuals to display your work for public interest, but cannot harm the creator. Examples of fair use include: reviews, news reporting, and education.

Four key factors come into play for determining infringement:

  1. Whether the infringer profited from your imagery
  2. How much of the work was used
  3. The nature of the infringed work
  4. Market damage caused by the use

Knowledge Is Power

With the Orphan Works bill hitting the floor once again, it's time to step up and learn to protect your rights. And that means registering your work with the Copyright Office, as well as standing up with your fellow photographers and illustrations to make your voices heard in Congress. Get involved with the professional organizations, or write your Congressional representatives directly.

For more information on how your voice can be heard, here are some links to work being done by your professional associations:

ASMP:
http://www.asmp.org/news/spec2008/orphan_update.php
Illustrators' Partnership:
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185
CAPIC:
http://www.capic.org/news.html?chapter=

Get to Work Protecting Your Rights

Now that you have a good idea of what copyright registration can do for your business, as well as how to get started, I can't urge you more strongly to begin registering all your images with the Copyright Office. The ability to register many unpublished images at once, all online, has made this process much more manageable. Why not set up a system for yourself? At the end of each quarter, put together all your work from the last 3 months and copyright it. Having a system in place ensures this extremely important work gets done regularly, and protects you against infringers.

Additional Reading

Of course, this information is just the tip of the iceberg when it comes to copyright information. Here are some additional resources:

  • ASMP Professional Business Practices in Photography
  • Best Business Practices for Photographers, by John Harrington
  • Legal and Business Forms for Illustrators, by Tad Crawford
  • Starting Your Career as a Freelance Illustrator or Graphic Designer

1 Extracted from ASMP Professional Business Practices in Photography