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

Marking And Metadata
Another aspect of copyright law that seems to cause some confusion for photographers is the use of a copyright notice. At some point, generally without learning the reasons why, photographers start using the copyright symbol. Unfortunately, in many instances, the copyright notice is used improperly. Likewise, photographers also inevitably start using the phrase “all rights reserved” as if it were some magic incantation that, when properly intoned, would provide some additional means of protection.

At the risk of dispelling the myth regarding the phrase “all rights reserved,” the reality is that this is archaic language that really serves no useful purpose under the current law. Required originally under an international copyright treaty dating back to 1910, the phrase once was used to serve as written notice that the copyright owner intended to retain copyrights not expressly granted. The phrase “all rights reserved” became obsolete in 2000 when all of the nations that had adopted the 1910 treaty adopted a more recent treaty called the Berne Convention.

As for the copyright notice, while there’s no harm in using it improperly, there are some benefits associated with using it properly. Once upon a time, U.S. copyright law required the use of a proper copyright notice on published works. As part of the changes that were made to the Copyright Act to bring it in line with certain international copyright laws—notably, the same Berne Convention—the use of the copyright notice was made optional, which it still is for images published after 1989. However, before you decide to stop using the copyright notice, it’s important to realize that there’s a benefit to using a proper copyright notice: Where an infringer has access to a published copy with a proper copyright notice, no weight is to be given to the infringer’s assertion of a defense based on innocent infringement (except in very limited circumstances, applicable only to nonprofit educational institutions, libraries, archives and public broadcasting).

Since there’s a good reason to use a proper notice, the next step is understanding what constitutes a proper copyright notice. Under the Copyright Act, there are three key requirements, in sequence:
1) the copyright symbol (©) or alternatively the word “copyright” or the abbreviation “copr.”; 2) the year of first publication of the work; 3) the name of the copyright owner (abbreviations also are permitted, provided the name of the owner can be recognized). The notice should be “affixed” to the images in a manner that gives “reasonable notice.” Of course, what constitutes “reasonable notice” in the digital world is not as clear-cut as you might think.

As for the copyright notice, while there’s no harm in using it improperly, there are some benefits associated with using it properly.

The idea of placing a copyright notice where it gives “reasonable notice” can be problematic when dealing with certain types of metadata, such as the International Press Telecommunications Council Photo Metadata (IPTC) data and exchangeable image file format (EXIF) data. Although each of these types of metadata permits a photographer to embed a copyright notice in the metadata attached to a digital image, it’s unclear whether attaching a copyright notice in the metadata constitutes “reasonable notice.”

The following illustrates the problem. After covering a football game with a surprise ending last season, a friend and writer for the local newspaper approached me. It happened that the newspaper didn’t assign a photographer to shoot the game and now desperately wanted a few images. Since I had already finished editing, adding IPTC captions and transmitting images from the game, I agreed to e-mail the newspaper a few images. Almost immediately after e-mailing the images to the paper’s editor, I received an e-mail from her indicating that the paper also needed cutline information with the images; the editor, who didn’t know how to access IPTC caption information—or even that such information was in the image files—was apparently accustomed to receiving caption information in the body of an e-mail, rather than in the image file itself. Fortunately, the editor was able to track down a photo editor who knew how to access the IPTC caption information.

I’d like to say that this was an isolated experience, but that would be far from the truth. While photographers may know about the metadata associated with digital images, and can easily access that information, a drastically different situation exists when dealing with nonphotographers.

Although it’s currently unclear whether putting a copyright notice into metadata constitutes “reasonable notice” today, prudence still suggests that photographers should include a copyright notice in the metadata in anticipation of the day when it will constitute “reasonable notice.” In the meantime, there are some alternatives. One possible alternative is to use a watermark. For obvious reasons, however, that may not be desirable, or even possible, depending upon how the image will be used. Another is to include the copyright notice in the file name. Juergen Specht, founder of the Nikon-centric D1scussion Internet mailing list, admitted using this approach when the topic of how to mark digital images with a copyright notice came up on the list. As a result, the file names may appear as “Copyright_2002_Juergen_Specht_20020610072-p1.jpg.” It’s difficult to argue that Specht’s approach doesn’t provide “reasonable notice” since even less technically inclined people are likely to recognize the copyright statement in the file name.


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