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Tuesday, February 23, 2010

What Do You Really Know About Copyright Law?

Legal issues about your photography can be confusing, but becoming knowledgeable in the area is part of being a professional in the 21st century

Ask a fellow photographer what the first thing he or she learned about copyright law was, and you’re likely to come up with a variety of responses that have little to do with the reason copyright law exists, what it seeks to protect or even what rights it confers upon owners. Yet, it’s these concepts that help photographers secure and enjoy the fruits of their labor. Whether negotiating the usage fees for stock images or the terms for an upcoming photo shoot, acquiring a working understanding of copyright law is as essential for a photographer as knowing how to complete the assignment or create the images in the first place.

According to the Greek philosopher Plato, “No law or ordinance is mightier than understanding.” Unfortunately, gaining a working understanding of copyright law is far from being a trivial task, in part because copyright law—like any other area of law—is subject to interpretation and reinterpretation by the courts. Even today, there are areas of copyright law that are in flux as the courts and scholars come to grips with changes in technology. However, once armed with a knowledge of some of the basics, photographers may be able to avoid the related pitfalls.

What Copyright Does And Doesn’t Protect
Under current U.S. copyright law, original works of authorship are protected from the moment that the works have been fixed in a tangible medium of expression. When applied to photographers, this means that copyright protection extends to photographs from the moment they have been stored on a memory card or tethered hard drive.

While copyright law will protect the images themselves, that protection doesn’t extend to any of the ideas conveyed in the photographs (and in certain instances, protection won’t extend to the subject matter depicted in the photographs). At first blush, this may seem contrary to the basic notion of protecting an image, and may even leave you wondering why you should concern yourself with copyright law. However, when you consider that copyright law gives the owner of a copyrighted work—for purposes of this discussion, a photograph—certain exclusive rights, the rationale may become clear. If the exclusive rights under copyright law extended to the very ideas conveyed in the image, a photographer could obtain exclusive rights not just to an image, but also to the subject matter depicted in the photograph.

One of the unique aspects of copyright law is that it recognizes and confers upon copyright owners not just one exclusive right, but a series of exclusive rights. U.S. copyright law currently enumerates six different rights, four of which are directly relevant to photographers. These include:
• the right to make copies of the image;
• the right to distribute copies of the image publicly by various means (generally, through sales or licensing);
• the right to publicly display the image;
• the right to create derivative works based upon the image.

Not only does copyright law confer these rights, but it also allows a copyright owner to deal with these rights separately. A copyright owner can sell or license these rights individually, even if the result is that four different people end up owning a certain right to the image.

For example, a copyright owner could decide to grant a local gallery the right to publicly display the image, but retain all other rights. As a result, the gallery would not have the right to make copies of the image or distribute copies publicly.


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