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Tuesday, May 22, 2007

Copyright In The Digital Age

Know your rights and responsibilities when it comes to the usage of your photographs

Copyright In The Digital AgeThe Digital Working Environment

The digital workflow has been a boon to photographers and their clients. We can organize and catalog our images in ways that were unimaginable a decade ago. We promote our work using a Website and transmit proofs to a client within minutes of a shoot. Clients have the benefit of receiving images under the strictest of deadlines and discover new talent only a few keystrokes away.

This improved efficiency also has resulted in situations where photographers and the organizations that represent them aren't paid for the use of their images, however. Although the focus often is on the outright theft of images lifted from a Website, there are many cases in which clients continue to use an image after an initial license has expired or use it in a way not agreed upon in the original contract. In some cases, the lack of an organized workflow for handling digital files combined with ignorance leads to the non-authorized use.

“Most people who use imagery are honest people,” says Jane Kinne of Russe Kinne Inc. Kinne has been a leading advocate for photographers' rights for 58 years. She has testified in more than 100 cases in both state and federal court on issues ranging from copyright to compensation of lost and damaged original works. “Oftentimes, they may be ignorant of what needs to be done, but they didn't start off with the idea of stealing something. With copyright registration in place, they're often very open about talking and negotiating a retroactive license.

“In the '70s, the issue of copyright began to emerge as crucial to any photographic business whether it was a single photographer, a group of photographers or a photo agency,” she explains. “I've seen how the copyright of photos is absolutely akin to the copyright of any creative process; however, because working photographers produce so many images, the process of copyrighting as it was originally envisioned had to begin to evolve and it has.”

The Copyright Act of 1976, the Digital Millennium Copyright Act of 1998 and numerous procedural changes within the United States Copyright Office have provided photographers with the means to conveniently copyright both published and unpublished photographs and to enforce rights as the copyright holder. One of the more important changes has been the ability for photographers to establish copyright on a collection of images with a single registration at a cost of only $30. Images can be submitted on a proof sheet, recordable CD or DVD or even videotape.

Asserting Copyright

Whether it's due to oversight or thievery, the risk of non-authorized usage of images has resulted in photographers becoming as proficient in protecting their images as they are in creating them. And one of the greatest tools photographers have to use is the registration of their copyrights.

“Any photographer who puts anything on the Web without registering it is asking to have his or her business ruined,” says Betsy Reid, executive director for the Stock Artists Alliance (SAA), a global trade association dedicated to the interests of rights-managed stock photographers. “The insurance against theft is so cheap, it's hard to understand why many photographers don't do it.”

Some photographers are intimidated by the legal costs of filing a federal copyright suit. Reid explains that many companies, upon discovery of such a violation, may be willing to negotiate. The presence of copyright registration not only secures the photographer's rights, but also provides an incentive for a company to agree to a retroactive license, even with its higher costs.

While the photographer owns the copyright as soon as the image is fixed in a medium (printed, saved to a CD, saved to a memory card, etc.), that copyright can't be taken for granted in perpetuity. It's the photographer's responsibility to defend his or her copyright from unauthorized use, and a failure to do so can result in the perceived abandonment or forfeiture of the copyright. Once you've forfeited copyright, you can find yourself fighting an uphill battle in future legal proceedings regarding any copyrighted material—a pattern of forfeiture makes it difficult to assert future rights. This isn't to say that you need to employ a staff to search for unauthorized use of your images 24/7, but you need to be vigilant about pursuing your copyright when you discover unauthorized usage.


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