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This chapter is from the book

It’s your Copyright

Copyright is a property right that is vested in the works created by an author or artist. Copyright law can be used to protect authors against most unauthorized reproduction of their work, allows them to control how a work is reproduced, and is the lifeblood of our photography industry. In the case of musicians who write a piece of music, if they own the copyright, they control how that music can be used. They can license it to be used in a recording, whether they are the ones playing the music or another artist is. With photographs, copyright ownership puts the photographer in control of how an individual photograph can be seen, whether in print, posters, online, or on TV, and is just as valid and important to photographers as it is to any other artistic creator. While many aspects of national copyright laws have been standardized through international copyright agreements, the copyright laws in most countries do still contain some unique features.

Photographers haven’t always been automatically recognized as first holders of copyright. Around the time of the early 20th century, copyright laws were primarily intended to protect the work of writers and painters. Photography was seen as a “technique for copying” (rather like engraving). Because of this, photography wasn’t deemed to be deserving of copyright protection status. It’s taken a long time for the rights of photographers to be recognized, and almost as soon as this goal was achieved, photographers started being pressured to give these rights up.

Copyright Law

US copyright is governed by the federal Copyright Act of 1976. It was this copyright law statute revision that made photographers first holders of copyright, except for what were regarded as “works for hire” (more to follow on that). In the UK it is governed by the Copyright, Designs & Patents Act 1988. This, too, automatically recognizes photographers as first copyright holders. Because of the need to harmonize European law, this act was later amended in 1996 to fit in with European-wide legislation on copyright. South African copyright law has been largely based on British law, and the 1978 Copyright Act is the one currently in force there. It differs from European law in that commissioned photographs are owned by the commissioner (client). The default position is therefore a work made for hire, although this can be overridden by mutual agreement, even one that is made verbally.

Copyright law has also been determined by international treaties, such as the 1886 Berne Convention, which set out minimum standards for legislation and has been widely adopted by countries all around the world. However, it has only been in the last few decades that these principles have been fully implemented in copyright legislation for all types of creators.

Copyright Duration

Copyright typically lasts the duration of an author’s lifetime, plus somewhere between 50 to 100 years beyond his or her death. The exact number of years varies from country to country. In the UK and European Union, the period is 70 years beyond death and is currently the same in the US, but there are some exceptions. In the US, copyright held by corporations lasts 95 years from the publication date or 120 years from when the item was first made, whichever happens to be shorter. Also, the copyright duration has changed several times in the US, and in a couple instances Congress has retroactively extended copyright. For works created prior to January 1, 1978, figuring out the duration is enormously complicated and very fact specific. In the UK the time limit is 50 years after creation for computer-generated works, which are images created by a computer directed by an author, such as a fractal-rendered image. In the UK, at least, it is not a good idea to describe your computer-edited photographs as being “computer generated.”

For works by unknown photographers, the duration of copyright is 70 years from the time the photograph was first made available to the public or published. For photographs that have not been previously published, the copyright expires 70 years after the photograph was taken. So, with photographs that date back to the mid-Victorian era, there will be no problem reproducing them because their creators (known or unknown) will all be long dead and the photographs therefore out of copyright. With more recent works, from the 20th century, it’s less clear what can and can’t be used. With a photograph taken during the early part of the second World War, the copyright would last 70 years after the death of the creator. If the photographer happened to have been killed during the war the copyright would only just have expired. If, on the other hand, the photographer survived the war and is still alive, the copyright might well still be in force and won’t expire till 70 years after death. If you think the photographer who took the picture was unknown, then the copyright may have recently expired, but if you don’t know who the author is, how can you be sure?

Digital Millennium Copyright Act (DMCA)

The US’s Digital Millennium Copyright Act (1998) implements two 1996 treaties of the World Intellectual Property Organization and was brought about to help clarify the law regarding online social media website and image usages. It exempts Internet Service Providers directly and indirectly from liability (subject to certain procedural requirements) and also renders it unlawful for anyone to produce technology, devices, or services designed to circumvent copyright protection systems that control access to copyrighted works. It essentially protects companies such as Flickr and Facebook from being sued for secondary copyright infringement. At the same time it provides a mechanism for copyright holders to complain about unauthorized use and for such images to be removed. For example, if someone infringes copyright on the Pinterest website, it absolves Pinterest of responsibility, but there is a page on the website that allows you to file a takedown notice. In response to this, Pinterest is required to take down the infringing content in a timely manner.

Who qualifies?

Interestingly, in the US a photograph must be regarded as being “original” for it to have copyright. What this means exactly is unclear and has yet to be tested in court. However, the Supreme Court has said that the originality requirement is not particularly stringent and requires only that a work displays some minimal level of creativity. Copyright ownership does not apply to employed photographers, who do not own copyright for the work created during their employment. Strictly speaking, photographers are only “employed” if their employer has them on their payroll and deducts their taxes (in the US what they produce on the job is known as work for hire). Where appropriate, photographers working on a short-term contract should make sure the terms and conditions don’t class them as an employee and thereby take away their copyright.

The author needs to be identifiable, which means if you intend on using a fancy pseudonym or brand name for your photography, people should know who the real you is. It’s a safe bet most people interested in photography know who Rankin, aka John Rankin Waddell, is, but if your working identity remains unclear, this may mean copyright lasts just 70 years from the time a photograph was taken.

Work for hire

In an employer-employee relationship, if the photographer is a true freelancer, then the copyright is owned by the photographer, unless there is an agreement to the contrary. However, if the photographer is an employee, and creating photographs is part of the job, then the copyright is owned by the employer and the art is regarded as a work for hire (WFH). The only exceptions are when the work created by the freelancer falls into one of several categories specifically enumerated in the Copyright Act of 1976. In these cases the photographer and client can agree beforehand to deem this a WFH. The specific categories include things like a contribution to a collective work as part of a motion picture or other audiovisual work, as well as what are described as supplementary works.

WFH agreements were originally designed with specific scenarios in mind, such as wedding photography where several photographers might be working for one photographer who has been hired by a couple to cover their wedding. This would allow the collective work (in this case the wedding album) to easily be licensed to the couple. Otherwise, if you had one or more other photographers covering the event without WFH agreements, they would individually be able to make claims for copyright ownership. What isn’t intended is for companies to try to apply WFH agreements to regular, freelance contractor commissions. For example, a WFH can be created if it is agreed upon by the photographer and client before the assignment starts and signed in writing (but only if it falls into one of the specific enumerated categories described in the statute). This can serve to pass the freelance worker’s copyright to the client as though he or she were an employee, but without the usual employee benefits, of course. It can even be enacted after the work is finished, which has allowed some clients to sneakily include WFH agreements in the endorsement areas of payment checks.

Freelancers also need to watch out for the conditions of work on a long-term project. Such work should be done under a contract for services rather than a regular employment contract, because the latter could be interpreted as a WFH.

Another important point to realize here is that if photographers set their business up as a limited company, or LLC, they become an employee of the business and the company (the employer) will own all the company assets. Should the company ever be sold or go into liquidation, the copyright would be regarded as being part of the company assets. There are ways to circumvent this. You can ask a solicitor or attorney to draw up a document that transfers the rights in the photographs shot for the company to you personally and then relicense these back to the company. A simpler solution is to keep the income from royalties separate to the company, although this requires managing two sets of accounts. In either case, you should always seek legal advice.

Copyright Registration

In the US, it’s not necessary to register your photographs in order to retain copyright because the copyright belongs to you regardless (unless you choose to sign it away, of course, or unless you take the photos for a company while you’re its permanent employee). However, in order to successfully file a copyright suit you will need to register your images. This is because with unregistered images, damages are limited to actual losses. Registration is a requirement to file suit and get into court to sue for actual plus punitive damages. Basically, it is still required for US domestic copyright owners if they wish to receive the full benefits copyright protection can give them and bring a suit for copyright infringement in a federal court. As long as you register before the infringement, or 90 days before publication, then you’re eligible for statutory damages and attorney fees. To register you need to use the Copyright Office’s online registration system, Electronic Copyright Office (eCO). This can be accessed by going to the Copyright.gov page: click on the eCO link and follow the instructions on how to register your images and what file format and size they need to be, and then upload them via the site. A payment will be required for each registration, which varies slightly depending on which type of form is used. However, groups of published photographs, for example, still require paper forms.

Moral rights

Moral rights were included in the Berne Convention and are partly implemented in UK and Canadian copyright law. Under UK law, moral rights are granted automatically and cannot be sold or assigned (surrendered) in the way copyright can be assigned. They give photographers the right to be correctly identified as the author and have their work properly credited when published (but this has to be asserted). The rights also allow you to object to derogatory treatment, such as poor Photoshop retouching being carried out on a photograph without your permission. Also included is a clause that safeguards the commissioner’s privacy. This means with commissioned photographs taken of social events such as weddings or family portraits, the photographer owns the copyright but cannot publish those photos or exploit them for financial gain without seeking permission from the commissioner. In the US, Section 106A of copyright law provides specific rights of attribution and integrity for visual artists.

Client negotiations

The reality is, many clients haven’t liked the copyright law changes that have benefited photographers. Prior to 1976 (US) or 1988 (UK), whoever commissioned and bought the photography (or more specifically, paid for the film used) owned the copyright. Photographers could (and did) negotiate to keep their copyright but had to assert this right prior to agreeing to each job as part of their terms and conditions of business. With prints you could put a stamp on the back to say, “This photograph is subject to copyright.” With transparency slides these would need to be mounted and the copyright owner’s details written onto the slide mount.

With the advent of digital, it’s now much easier to assert copyright. You can mark a photograph as being copyright-protected and include your name, contact info, and other relevant details in the IPTC metadata. None of this is foolproof and you can argue it is just as easy to copy and paste an image to remove all the metadata as it was to remove a slide and put it in a new slide mount. There is a provision in the DMCA that makes it unlawful for someone to knowingly and intentionally remove copyright management information from copyrighted works.

If you shoot for commission you may be asked to assign (give up) your copyright. It helps to know that the only way you can do this is by written agreement. Unless otherwise specified, the copyright is yours automatically, and it can’t be negotiated after the event, either. However, you will inevitably meet clients who’ll demand all copyright. The main reason for this is that their lawyers have advised them to get blanket waivers from everyone they deal with. Such demands aren’t always transparent—the waiver may be contained in a clause on the back of an art order. Worse still are one-time agreements in which the photographer agrees to assign copyright to that client for everything he or she shoots now and into the future. Shortly after the 1988 Copyright, Design & Patents Act became law, a London agency sent letters to photographers with a pound coin attached stating this letter was a copyright assignment and acceptance of this payment would assign rights for all future work commissioned by that agency. Of course, to be valid, such an agreement needed to be signed by the photographer, but it showed the desperation of some clients to secure all rights, even if it cost them a pound to do so.

Instead of assigning full copyright, you can grant a license specified by usage type (i.e., media usage), time period, and territory, and it is possible to make this an exclusive right. This appeals to clients because it guarantees only they will be able to use the pictures. From the photographers’ point of view, an exclusive license agreement assures them the photos can be used only for the requested usages and time period. So it can be fair to both sides. An exclusive license, signed by the copyright owner, also gives the client the right to sue third parties directly for any copyright infringement. Exclusive license agreements are commonly used in advertising photography.

A nonexclusive agreement is one that would mainly be used where the source image was not shot for a particular client but most likely self-commissioned, and the photographer wished to maximize potential sales. The best way to visualize this is to imagine a cake being divided up into lots of different slices. One slice would be to sell a photograph for press advertising in the US for a period of six months. Unless it’s made exclusive, that same slice can then be sold again to someone else. Each slice can have a calculated value based on the type of usage, where it is to be used, the time period, plus requests for exclusivity.

As much as clients might like to negotiate to have the whole cake to themselves, it is the photographer’s or agent’s job to explain why they won’t always need it. Photographer Seth Resnick offers some good advice here: “Asking you for a price for unlimited usage is a little like asking for the price of a car but not knowing if you want a Ford or a Ferrari. I tell clients that unlimited usage means usage in every media type in every language, and the cost would be far greater than they need to spend. Are they doing television? If not, they can exclude television rights. Are they going to have usage on the sides of buses? Are they going to use billboards? For example, if a regional magazine charges $5,000 for a full-page ad, it would make an enormous difference in the price if the ad is run once or six times. Also, there may be one regional magazine or there could be 20. Again, the price would vary greatly.”

Where a photographic shoot involves models or incorporates elements that are themselves subject to copyright, this actually strengthens the argument to insist on the need to sell limited rights. After all, if the model booking agreement signed by the client limits the picture usage, then the photographer’s agreement should do so, too. In other words, the model agreement already limits the types of usage, and the photographer can’t be made liable for extra usages that go beyond the original shoot agreement. This also highlights the problem of losing control of your work when you assign copyright. Your work can then be used anywhere in any context, but the models featured in a photograph may not like the products or concepts they’ll be associated with. That can be a problem.

Copyright ownership also gives the photographer some control when collecting payment. As I mentioned earlier, as part of your terms and conditions you can state that the copyright license only comes into effect once payment has been received. It wouldn’t go down well to enforce this to the letter of the contract, but such clauses are useful should you find yourself in a situation where an advertising agency goes bust and the photographs continue to be used by the end client. In such situations you could make a claim against the client for usage of the photographs (even if the agency had already been paid).

As mentioned earlier in the book, be careful when entering competitions or agreeing to license an image. Always read the terms and conditions carefully. For example, it is common for photography competitions to include onerous clauses that are essentially a rights grab (see “Awards and Building on Success” in Chapter 2). Students who enroll in a photography course should read their agreements carefully to make sure the work they will be producing for that course remains theirs and that their copyright is not automatically assigned to the college.

Orphan Works

Images with missing metadata information are typically described as “orphan works.” A lot of photographs and other artistic works in existence have no indication of copyright ownership, and there’s no way to tell who the author is. Orphan works photos are a problem for picture editors because they can’t use them (except when a photograph is clearly old enough for the copyright to have expired), and photographers who omit their contact details won’t benefit from potential sales. As a result, there are, as you can imagine, a lot of rather interesting historical photographs held in libraries that can’t be published because of the uncertainty surrounding their ownership. The fact that a prospective user cannot identify the owner does not make the work anonymous or pseudonymous.

Some businesses would like to see legislation introduced that would allow them to avoid liability when publishing or using orphan works. This is also being strongly supported by public institutions, as well as vested interests that would like to administer schemes to oversee the use of orphan works. However, if done right, orphan works legislation could offer a fairer deal to photographers. One US proposal would limit damages to a reasonable license fee, so that the photographer would be out no more or less than in an ordinary commercial transaction situation. In the absence of legislation to deal with orphan works, courts in the US have also been more willing to expand the contours of fair use, which has been used as a shield.

The overall situation is not helped by photographers who fail to safeguard their images and who are not taking care to mark their photos as being copyrighted or adding their contact details to the IPTC metadata. At the same time, uploading photographs to social media sites can cause them to lose such metadata and thereby create orphan works during the process. If you haven’t heard about proposed orphan works legislation, I urge you to read up on this.

There was the recent, well-publicized case of Morel vs. Agence France-Presse (AFP)/Getty Images. The story here is that Daniel Morel, a Haitian photojournalist, took photographs of the earthquake disaster in January 2010 in Haiti, and within hours of the event happening, posted these on TwitPic, a website that allows users to put pictures on Twitter. However, another Twitter user took the photos from Morel’s TwitPic and posted them on his own. AFP ended up using the photographs from this account without following its own guidelines to check the true ownership of the photographs. AFP then forwarded the images to Getty Images and as a result, both became embroiled in a Southern District of New York court case in which the two agencies were found liable of multiple violations of the Digital Millennium Copyright Act and found to have altered the copyright management information and added false, misleading data. Part of AFP’s defense was that the Twitter website allows for the fair use of photographs. At one point AFP even brought counter claims, one of which sought a judicial decree that it hadn’t infringed anything, and another for commercial defamation. The judge saw things differently. Twitter allows users to post and retweet but doesn’t allow for the commercial use of photographs posted by other users. The jury found that AFP and its American distributor Getty Images had willfully infringed Daniel Morel’s copyright and awarded him $1.22 million. This was a significant victory for an individual photographer who had fought a long battle with the picture library agencies.

I think the main culprit here was the Twitter user who effectively stole Morel’s photographs and thereby allowed them to be used by AFP without the original creator’s knowledge or permission. AFP had indeed issued guidelines to its editors to avoid using photographs found on social media sites without checking, and its picture editor was clearly at fault. Getty Images was also found liable by association for its role in the infringement, and it is reckoned it may well sue AFP for the legal costs Getty Images incurred. The important thing about this case is that it clarifies how photographers have the right to maintain ownership of their images when photographs are posted on social media. Where picture editors have been inclined to use photographs without properly checking, this case serves notice to them to act more responsibly in the future.

Secondary Rights

When retouching is carried out by someone other than the photographer, this implies dual copyright ownership and permission must be granted before the original copyright owner can exploit that image and license it for other usages. It is all a question of how much retouching is done. Basically, retouching that extends to simply cleaning up an image doesn’t qualify. But if the retouching work substantially changes the appearance of an image, or includes photographs created by another photographer, then more than one copyright will be associated with that work. For example, the image in Figure 4.5 is one that I worked on for Makebelieve Beauty through Nude Brand Creation. I took the photograph of the model featured in the design and carried out the preliminary retouching. The Henri Rousseau–inspired jungle foliage was illustrated by Derek Bacon and the final image composition assembled by Allen Luther at Nude. Permission was sought by each of those people in order to reproduce this image in the book.

Figure 4.5

FIGURE 4.5 Client: Makebelieve Beauty, illustration: Derek Bacon, design. Mike Parsonson @ Nude, image composition: Allen Luther @ Nude, model: Tess @ MOT.

Adding copyright information

You can identify a photograph as being copyrighted in a number of ways. You can add a copyright notice watermark to it, which clearly tells people, “This is a protected photograph.” Be careful when uploading images to social media or image-sharing websites. If you care about the picture you are uploading, be sure to add a watermark that indicates it’s copyrighted. Not all sites strip the metadata, but with those that do, this will be your only means of defense. A watermark will survive metadata stripping but has the disadvantage of defacing your work. You can select the “copyrighted” item from the Copyright Status section of the IPTC metadata. This can be done using a program such as Photoshop, Lightroom, or Phase One Media Pro. This alerts a potential user to the fact that the image is copyrighted and is not available for general use, and copyrighted images opened in Photoshop will display a copyright symbol in the image document window title bar. While you are about it, you can add more information about the picture, such as your name and contact details, your e-mail address, and your website URL (see Figure 4.6 and Figure 4.7). You can also use special plug-ins that are able to embed an invisible, robust watermark. Examples of this are Digimarc and Signum SureSign.

Figure 4.6

FIGURE 4.6 In Lightroom you can create a custom metadata preset (left) and use this to apply essential copyright information and contact details to photos in the catalog. The Metadata panel (right) lists the IPTC information, including copyright.

Figure 4.7

FIGURE 4.7 In Photoshop you can inspect the file metadata by choosing File > File Info... Here you can inspect and edit the metadata information. If a photograph is marked as copyrighted, a © symbol will appear in the document window title bar when it is opened in Photoshop.

Picture Licensing Universal System (PLUS)

The PLUS Coalition is an international nonprofit organization (Useplus.com). To quote from its website, its aim is to simplify and facilitate the communication and management of image rights. The PLUS Picture Licensing Glossary helps educate people about the language used to form a license. The main impetus has been to work with the International Press Telecommunications Council (IPTC) to have extended IPTC metadata entries that make use of machine-readable code to define media categories for image usage. The online License Generator can be used to create a PLUS Universal License Statement, which describes the rights information you have granted to a licensee. This creates an XMP file that can be used to embed your license in an image or collection of images. The PLUS Registry at Plusregistry.org allows photographers from all over the world to register their contact details for free, enabling purchasers of images to more easily locate photographers. All of these services are provided as free tools and will offer a vital defense against future orphan works legislation. For a small annual fee you can become a supporting member and receive a unique PLUS Member ID that can be used by your business in images and image-licensing documents.

Creative Commons

Creative Commons (Creativecommons.org) is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools. Creative Commons tools allow creators to retain copyright, while allowing others to access and use their work in limited ways. It offers a “some rights reserved” approach to copyright licensing as opposed to the traditional “all rights reserved” restrictions. It allows creators to retain copyright while enabling others to copy, distribute, and make some uses of their work. It supplies various levels of licensing, all built upon copyright law, that permit different levels of specific usages. Using tools that are available on the website, users can specify and generate custom XMP metadata templates. Instructions on the site show how you can then use these to edit the metadata in image files to add a Creative Commons license notice.

The growth of the Internet has fueled appetites for free content. The underlying ethos of the Internet is open-access publishing, and few publishing sites require an entry fee other than Rupert Murdoch publications and pornography sites. With this has come the problem of people expecting everything to be free; it has spawned a “freetard” mentality. I should explain here that freetard is a slang term for someone who thinks all digital content should be available at no charge, regardless of the fact that the people who create this stuff need to earn a living. It is neatly summed up by the slogan “Everything should be free, all the time (except for the things I am selling).”

Giving content away can work for some publishing media and creative endeavors, but photography is different. An established band might calculate that allowing people to download some of their music for free will help promote future tours, which will make them money. With photography the photograph is everything. You can’t offer a seven-day trial (like you can with software). The only thing you can do with a photograph is to embed a visible watermark that allows people to view the image before deciding to buy it or not. But the freetards want everything to be free on the Internet. It’s become commonplace to accept that that’s the way things should be, and it accounts for why so many of the images you see being used on the Internet are published illegally.

Collecting Societies

Collecting societies are bodies that have the authority to collect royalty payments from users of copyrighted works and distribute royalties to copyright owner members. Rather than manage primary usages (such as where a client contacts the photographer to enquire about usage in, say, a book), they manage secondary copyright usages, such as photocopying and TV broadcasting of photographs. End users are able to pay a fee in return for a blanket license indemnity that grants them permission to use images in this way. There are collecting societies in each of the European countries (the Design and Artists Copyright Society [DACS] is the collecting society for UK visual artists). However, Canada and the US have less restricting rules about how these types of societies should be run. There isn’t really a collecting society for visual art such as photographs. The Copyright Clearance Center (Copyright.com) operates as an opt-in clearinghouse for certain types of content, mostly book chapters and journal articles, but it does offer some image-licensing services.

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