A beginner’s guide to copyright for images

Feature photo: Sol mouillé au printemps, by Alainalele, Licensed under CC BY 2.0

Copyright protects creators from having their work used, copied, or reproduced without their permission. As an artist of any kind, it’s an important way to protect work, and earn a fair income by licensing the usage rights to that work.

What is copyright?

Copyright is a private, transferable right which is automatically given to the creator of an image or other specific types of intellectual property – like literary or artistic works.

FindLaw’s legal dictionary defines copyright as:  

“a person’s exclusive right to reproduce, publish, or sell his or her original work of authorship (as a photograph, literary, musical, dramatic, artistic, or architectural work).”

It is important to note that Copyright law covers the “form of material expression,” not the actual concepts, ideas, techniques, or facts in a particular work. Artistic Licensing magazine puts this into context well, in this article. To give an example:

In the American case of Dyer v. Napier [2006 WL 2730747], a wildlife photographer clicked a picture of a mountain lion with her baby in her mouth at the edge of a cliff. Napier, a sculptor, then made a very similar sculpture of a mountain lion with a cub in her mouth. He had seen the photographs earlier, so he did have prior access to it. Therefore, the issue to be decided was whether the sculpture was substantially similar in both idea and expression. The Court held that the image of a mother mountain lion perched on a rock with a cub in her mouth is an idea “first expressed by nature.” As a result, there was no infringement of copyright.

This is the reason why a work must be fixed in a unique, tangible form, such as a photograph, in order to receive copyright protection.

When and how is copyright established?

Copyright is established at the moment of a work’s creation, by the person who created it. i.e. as soon as a photographer clicks the shutter, they own copyright to the image taken. As mentioned, copyright is a private right that can be transferred between people as a wholesale (assignment/work for hire), and a copyrighted work can be licensed for limited use.

Registering work with a government copyright office is not a requirement, but it can offer additional legal protections and access to damages if rights are infringed.

Licensing copyrighted work

Licensing means that another party can use copyrighted work under a set of predefined terms, whilst the copyright holder still retains ownership. Licensing is the most common way that images are made available for use.

When a license agreement is met, the licensor transfers the non-exclusive right to copy their work to the licensee for limited us (based, of course, on the agreement), unless otherwise stated.

What does being the owner of a copyrighted work mean?

Some of the benefits of being the owner of a copyrighted work include:

  • Work is protected under the law
  • Choose how and where to license work
  • Ability to reclaim damages is possible if work is infringed

What constitutes copyright infringement?

Simply put, copyright infringement is the use of work(s) under copyright protection without permission, which infringes the exclusive rights a copyright holder has to reproduction, distribution, display, make derivatives of and derive fair compensation from use of their work.

Copyright and social media

As a copyright holder, it is very important to read the terms and conditions of a social media platform, before uploading work to it. Posting an image to a social media site such as Facebook or Twitter grants those platforms some license to use it. Fortunately, with exception to the previous point, images on social media hold the same copyright as other images – there are no third party extensions of these permissions. For example, an instance where a company re-uses an image from someone’s Facebook account, without permission, is likely to still be copyright infringement. 

Where did copyright come from?

In the digital age, copyright has become increasingly important, however, copyright is not a new idea. The first copyright act was in 1709 and the importance of recognizing and protecting the work of creators has ever since been a historically important concept. The Berne Convention, of 1886, was the first international agreement on the global management of copyright. Today, the basic concept still enjoys international recognition, even though the degree of enforcement might differ between jurisdictions.

‘Fair Use’ is the concept that came to be an exception from the Berne Convention when television broadcasting found its feet. The concept outlines limited exceptions to the rules governing the use of copyrighted material, including instances of research, teaching and even comedic satire.

Copyright in the internet age

Since its advent, copyright protection and enforcement has become an ever-present challenge for creators of images and other creative expressionists, on the internet – despite the many advantages it holds for them. On social media, forums, blogs, shops and other types of websites, users essentially have access to and can download (and thereby have the ability to replicate and reuse) any content they see, in just one or two clicks. In the wake of this, various guidelines, laws, and organizations have been founded in an attempt to regulate and control use of images and other media for a variety of purposes. 

Fair Use guidelines, for example, were updated with the advent of the internet. Fair Use is now closely linked to the concept of ‘Safe Harbor’, which posits that ISPs and hosts cannot be responsible for the actions of the people using their services. Safe Harbor is only granted when internet service providers and hosts adhere to requirements to remove the offending material promptly once they are notified about the infringement. 

The U.S. Digital Millennium Copyright Act provides guidelines around this, and other jurisdictions also have takedown requirements. Further information on DMCA takedowns can be found here.

A further example would be the creation of creative commons. Creative Commons is a method of licensing images online, which allows an image creator to choose and clearly communicate how their work is to be used.

Learn more about Creative Commons

Copyright enforcement in the internet age

Despite the inception of multiple initiatives trying to regulate and prohibit the authorized or unauthorized distribution of work on the internet, there is (at present) nothing that can entirely prevent it from happening. To this effect, legal services offering support in remedying issues of unauthorized use of copyrighted work online were created – such as the services offered by Pixsy.

Registering for copyright in different countries

The copyright registration process varies from country to country. The list below details how to register work at a copyright office, online, or simply detail the differences for copyright registration within that jurisdiction:

The United States of America:

  • Go to https://www.copyright.gov
  • Head to the “Registration Portal”
  • Familiarise yourself with the requirements first at https://www.copyright.gov/prereg/help.html#help15
  • Log in or register as a new user
  • To Register works, the portal will take its users through the form, step by step. In general, the fee for online filing of registration is $55USD. Registering a work that was not made for hire, and where the individual registering the work is the sole claimant, there may be a reduced fee of $35USD.
  • To register a timely registration, make sure work is registered within 3 months of first publication. Most photographers who publish regularly work registration into their workflow and file a registration every 3 months. If a work isn’t timely registered, entitlement to statutory damages may not be granted.

Interesting to note, many countries rely on US Copyright Registrations as proof of ownership, including Japan.

Canada:

United Kingdom:

  • Go to https://secure-d.copyrightservice.co.uk/forms/register/online
  • Enter contact details
  • Define each work and upload files
  • Confirm details
  • Make payment. Fees are currently £42.50 for 5 years or £72.50 for 10 years per work.
  • As for statutory damages, the UK doesn’t have fixed amounts, but rather determines damages based on the infringer’s profits, or the creators lost license fees.

European Union:

Works in the European Union, do not require formal copyright registration, and statutory damages may differ between countries within the union. For those who wish to register work, there are multiple registries.

Australia:

In Australia, there is no formalized system of copyright protection, rather it is free and automatic when work is first created on paper, disk, or otherwise put into material form. While that part is simple, unfortunately seeking statutory damages can, at times, be complex and arduous in Australia. Damages rely on whether the offense committed constitutes a summary offense or an indictable offense, depending on the infringer’s intention and state of mind. Damages would be calculated more closely to the UK system than the US or Canadian systems.

Key Takeouts

  1. Copyright is an important right to exercise as an image owner
  2. Build business habits around registering images for copyright
  3. Using an active image protection method or service ensures licenses are being adhered to correctly.
  4. Registering work at an official copyright office may allow for statutory damages to be claimed in the event of its unauthorized use

 

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