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

Recent Developments
On November 5, 2009, the U.S. Court of Appeals for the Seventh Circuit released its opinion in Daniel Schrock’s appeal. Reversing the lower court’s decision, the Seventh Circuit breathed new life into Schrock’s case by holding that “as long as he was authorized to make photos...he owned the copyright in the photos to the extent of their incremental expression.” Stated more simply, since Schrock had permission to create derivative works—photographs of the copy-righted toys—then, by default, he was the owner of the copyright in the photographs.

On the key issue in the appeal, specifically whether Schrock had to obtain permission from the owner of the copyright in the “Thomas” brand of children’s toys that he had been hired to photograph in order to be able to register the copyright for the photographs, the appeals court sided with Schrock with a caveat. “The copyright in a derivative work arises by operation of law—not through authority from the owner of the copyright in the underlying work—although the parties may alter this default rule by agreement.” Whether Schrock altered the default rule by agreement was an issue that the appeals court could not decide based on the evidence before it, and is an issue the trial court still will need to resolve.

While the decision may be seen as a victory for Schrock, the appeals court didn’t agree with Schrock’s arguments that the trial court mistakenly classified his photographs as derivative works. Noting the deep disagreement that exists among courts and commentators on the issue of whether a photograph of a copyrighted work constitutes a derivative or original work, the appeals court side-stepped the issue by suggesting that the difference between an original and derivative work impacts the scope of copyright protection, but not copyrightability. It was for this reason that the appeals court assumed without deciding that Schrock’s photographs were derivative works. Thus, photographers will need to continue to watch the progress of Schrock’s case to see how this issue is resolved.

“Knowledge Is Only Potential Power”
As a variation on Francis Bacon’s famous quotation, American author Napoleon Hill suggested, “Knowledge is only potential power.” Gaining the knowledge of the fundamental aspects and pitfalls associated with copyright law is the potential. The real power waits to be discovered by those who wisely apply the knowledge in their businesses.

Samuel Lewis is a Board-Certified Intellectual Property Law specialist and partner at Feldman Gale, P.A. in Miami, Fla., and a professional photographer who has covered sporting events for a quarter century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


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