COPYRIGHTS & PHOTO OWNERSHIP
Common misconception: Just because a photograph is "of you" does NOT mean it "belongs to you".
Federal law, in fact, states just the opposite.
The Federal Copyright Act of 1976 clearly states that "the creator" (the photographer) owns the copyrights to all photographic images he or she creates and therefore has a legal right to determine how they may or may not be used, copied and/or reproduced and the only exception is if the model or client draws up a written contract stating otherwise and has it signed by the photographer prior to the shoot.
In other words, if you do not have a written "work for hire" contract and/or a copyright waiver signed by the photographer ahead of time then the photographer is the legal copyright owner, no one else (including the person that paid for the shoot, the model, the client, etc.) can legally use, display, reproduce, copy or publish photographic images taken by the photographer without a signed release - and, according to Federal Law, there are no exceptions.
What is copyright? Copyright is a form of legal protection that gives photographers, artists, musicians, etc., the exclusive right to use, copy and reproduce their works. The Copyright Act is federal law, not state law and, consequently, the law is uniform throughout the United States. Also, since the United States has signed several international copyright agreements, copyright protection is effective essentially all over the world. Generally speaking, owners of copyright have the exclusive right to control the manner, means and methods of using and reproducing their works. And, although copyright owners may choose to authorize others to use their works, the copying, reproducing or using of any work without permission from the creator of the work is a violation of Federal Law.
What does copyright do for photographers? Copyright gives the photographer the exclusive right to control if, when, how and how often his or her photographic images can be used, published, copied or reproduced. Copyright is not a single issue as the word might seem to suggest, but rather it is a collection of rights, any part of which can be retained, transferred or sold either individually or in groups. For example, if a photographer authorizes a company to use a particular photographic image in a brochure, the brochure is the only place it can be used and the use of the image in a magazine ad without permission would be a violation the the rights of the copyright owner.
Does Copyright Law protect photographers in other ways? Yes. Most professional photographers would be horrified by the very thought of letting someone else optimize and/or retouch their work and Copyright Law also helps to prevent this from happening. Let's say you ruin a photographic image with some 'do it yourself' retouching, then make cheap low quality copies of it to show. The photographer will not, of course, want cheap, low quality images floating around because this could severely damage the photographer's reputation. (Although you might have every right in the world to destroy your career by showing cheap, low quality photographs that have not been professionally optimzed and retouched - you have no right to destroy the photographer's career in the process.)
Who owns the copyright? Generally, the person that creates the photographic image is the legal copyright owner and the only exception to this rule would be when a work is created by an employee as part of his or her job duties under a work for hire agreement. Otherwise, the only way that the work would belong to someone else (the model, the client or the person that paid for the shoot for example) is if the photographer signs a written agreement transfering ownership.
If I pay a photographer to take photographs of myself or my kids do the copyrights and/or the photographic images then belong to me? No. Again, according to Federal Law, the person that creates the work (in this case the person who trips the shutter on the camera) owns the copyright.
If I buy a photograph from a photographer, can I then copy or reproduce it? No. The law that provides the transfer of ownership of any material object protected by copyright does not of itself convey any rights to copyright and the mere posession of a photographic image does not convey the right to copy, reproduce or use the work.
What is copyright infringement? Copyright infringement is any unauthorized use, copying or reproduction of a copyrighted work - and even the simple act of photocopying a copyrighted image can be an infringement.
How do I get permission to use a copyrighted work? Permission to use a copyrighted work is called a "license" and a license must be obtained from the photographer / copyright owner prior to using or copying the work. It doesn't have to be a long and complicated contract, but obviously, a clearly written release will help avoid misunderstandings and confusion.
What if I use a copyright protected photographic image without permission? The unauthorized use of a copyrighted photographic image is called an infringement and Federal Law provides stiff penalties for infringing copyrighted works including monetary damages plus attorneys' fees plus statutory damages of up to $150,000 per image per copy, per use. A court can also order the destruction of all infringing copies.
What steps are necesary to copyright an photographic image? A copyright is automatically created the moment the photographic image itself is created. (As long as the work exists in tangible form or can be seen or reproduced with the aid of a machine, it is copyright protected.)
Has the Copyright Act kept pace with modern technology? Yes. The Copyright Act was designed to be responsive to technological advances. For example, a photographic image must be licensed for use on the internet the same as it must be licensed for use in a magazine. Similarly, the use, copying or reproduction of a photographic image found in a magazine or taken off the internet or taken off of a disk or other storage device is also an infringement. Of course, the photographer can assign the copyright to someone or create joint ownership of the copyright - but the terms, conditions and costs of this arrangement would be completely up to the creator of the image (the photographer).
Are there times that a copyrighted work can be used without risking infingement? Yes.The concept of "fair use" permits the utilization off copyrighted materials for certain limited purposes. For example, a newspaper can publish copyrighted works for the purpose of reporting news and a teacher can make copies of certain works for educational purposes without it being an infringement.
In most other instances, however, if the copying or use of the photograhic image(s) impacts the income the photographer might expect from sales of the image(s) then there would be an infringement.
Would you walk into a store then leave with something without paying for it? Taking something of value from a store without paying for it is no different than taking something of value from a photographer without paying for it.
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