DPP Home Business What Do You Really Know About Copyright Law?

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

The one right that often can be the most difficult to understand, at least from the point of view of a photographer or visual artist, is the right to create derivative works. U.S. copyright law defines a derivative work as one that may be based upon one or more preexisting works, and includes in-stances where the existing work has been “recast, transformed, or adapted.” Even editorial revisions or other modifications to an existing image may qualify as a derivative work. Derivative works are further complicated by the fact that the owner of a derivative work only owns what was added to the original.

For certain types of photographers, the issue of derivative works can be particularly troublesome. Chicago, Ill., product photographer Daniel Schrock discovered this some time after he was hired to photograph the “Thomas” brand of children’s toys. Under the arrangement, Schrock’s clients were permitted to use the photographs for two years. When Schrock discovered that his clients were continuing to use his photographs after two years, he registered the copyright for the images and sued for infringement. The trial court determined that Schrock’s photographs were derivative works of the products, which were also copyrighted. The court also determined that while Schrock’s clients had consented to his creation of the derivative works—the photographs of the products—they didn’t consent to Schrock registering the copyright for the photographs. Judgment was entered in favor of the clients and Schrock appealed (as of the writing of this article, the appeal was fully briefed and awaiting a decision from the U.S. Seventh Circuit Court of Appeals).

The issue of unauthorized derivative works has ap-peared in a lawsuit pending in New York, brought by photographer Patrick Cariou against artist Richard Prince. Some may remember Prince as the artist The New York Times dubbed a pioneer of “appropriation art,” who photographed other photographers’ images and then exhibited “his” work in galleries, including an exhibit at the Guggenheim in late 2007. At the heart of the case is Cariou’s claim that Prince made unauthorized derivative works—a series of paintings incorporating copies of the photographs—of Cariou’s photographs appearing in the book Yes Rasta.

The issue of unauthorized derivative works also is involved in the lawsuit between Shepard Fairey and The Associated Press regarding Fairey’s Barack Obama HOPE poster. According to the allegations in the AP’s counterclaim, Fairey, who specializes in “‘referencing’ preexisting works,” created an unauthorized derivative work when he created the HOPE poster.

The flip side of many of these cases involves a doctrine called “fair use,” which is now part of the Copyright Act. Fair use is perhaps the most widely known and controversial limitation on copyrights (and was discussed in the January/February issue of DPP).

Once these cases have worked their way through the legal system, we may have a better idea of precisely how courts will view the concept of derivative works and, more importantly, whether a photograph of an existing object is a transformation or an entirely new work. In the meantime, photographers need to be aware that there’s something of a regional split, with courts in California and Illinois treating derivative works in the form of photographs differently than do courts in New York and Florida.

In addition to these rights, there’s a relatively recent addition to the U.S. Copyright Act, the Visual Artists Rights Act of 1990, which adds the rights of attribution and integrity. This permits a photographer who creates an image—even in instances where the photographer may not own the copyright to the image—to be identified as the person who created the image. The Act also allows a photographer to prevent the use of his or her name in connection with the image in the event the image has been modified or distorted in such a way that the photographer believes would negatively impact his or her reputation.


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