Copyright And Photography
Protecting Your Creative Investment
Photography is a wide-ranging field that engenders passion in its practitioners,
and like all great forms of expression creates opinions formed through experience
and reflection. In its early days one of the great debates was: Is Photography
Art? This was the subject of many essays and heated discussions among players
and spectators. Today, issues such as film vs. digital, format choices, the
validity of computer generated images, photography as exploitation or revealer,
and even the merits of ink jet vs. silver prints cause similar debate. We are
opening this department up to readers, manufacturers, and retailers--in
short, everyone who lives and breathes photography and who has an opinion about
anything affecting imaging today.
Here's how to get involved: write us an e-mail at firstname.lastname@example.org or send us a letter with a proposed topic and a synopsis of your idea. Once approved, we'll ask you to send us about 500-1000 words on the subject chosen. The idea here is not to push any product or wave any flag, but to create discussion about photo and imaging topics of the day. We reserve the right to edit whatever you send in, although we will never edit intention or opinion but only for length and, hopefully, for clarity. We reserve the right to publish your work on our website as well, so you can join the archives and be a resource for opinion for years to come.
So, get thinking and writing and share your Point of View.
Although commercial photography existed as early as 1850, federal copyright
protection for photographs was not enacted until 1865, the year the Civil War
ended. That date is not merely coincidence--Mathew Brady's famous
Civil War photographs were influential in prompting Congress to recognize protection
for photographs. At the same time, photography presented one of the first technological
challenges to copyright law, as illustrators and artists questioned whether
the making of photographs was an artistic endeavor that should be entitled to
protection. They argued that photography involved only a mechanical process,
merely "pushing a button."
In 1884, the Supreme Court resolved this issue in Burrows-Giles Lithographic Co. v. Sarony, a case involving a famous photograph of Oscar Wilde. The Court ruled that a photographer's creative decisions about the setting, angle, lighting, background, subject matter, and other aspects of composing a photograph easily meet the required standard for originality. In fact, nearly 100 years later the Supreme Court reaffirmed the originality standard established in the Burrows-Giles photography case as the standard for all copyrighted works. Note also that the Supreme Court has made clear that works created for advertising purposes are no less entitled to copyright protection than purely artistic works.
The current Copyright Act continues explicit protection of photographs as a type of "pictorial, graphic, and sculptural works." Copyright protection is automatic--it subsists as soon as a photograph is "fixed" in a tangible form. For example, once the image is recorded on film or stored in the memory of a digital camera, then copyright protection applies to it. There is no requirement that the photographer register the work or undertake any other formality to enjoy the benefits of copyright protection, such as licensing the work to others. Registration of a copyright with the US Copyright Office, however, provides several important benefits. First, it provides the public with notice of the author's claim to copyright. Second, registration before an infringement provides the author with additional remedies in litigation, including the possibility of obtaining statutory damages and attorney's fees. Third, a copyright owner cannot initiate a lawsuit for a US work until he or she has registered the copyright in that work. Finally, copyright registration is relatively inexpensive--generally about $30 per registration--and the Copyright Office recently created a new procedure for photographers to register groups of their published photographs with a single application, making it even easier and less expensive. Information on registration can be found at the Copyright Office's website, www.copyright.gov.
The rise of digital technologies makes it even more important today that photographers understand how copyright protects their works and how it can be used to protect the economic value of their photographs. Gone are the days when the physical limitations and expense of copying photographs gave photographers a fair amount of protection against infringement of
Today any individual with a computer, scanner, and Internet connection can cheaply and easily copy, distribute, and even alter a photographic work. Copyright can be an effective means to control such activity and obtain redress when it occurs. In addition, the recent amendments to the Copyright Act provide legal support for a photographer who might use technological protection measures such as encryption to protect digital versions of their works by giving the photographer remedies against those who attempt to circumvent those measures.
Today's copyright law provides invaluable tools for the photographer seeking to maximize economic return from their works. It is imperative in this age of rapid technological change that the photographer understand what copyright offers and explore how it
can be used to protect and enhance the commercial exploitation of their photographs.
Who Is APA?
The Advertising Photographers of America (APA) is a trade organization that represents many of the industry's best-known photographic artists. For the past 20 years, APA has been vocal in advocacy efforts and has strived to educate photographers on business practices, ethics, and professional standards. Committed to preserving and enhancing the profession, APA has been a strong advocate on behalf of its membership and the entire photographic community, working to resolve issues and problems in the industry by working with local and state governments on issues such as taxes and employment concerns. Efforts have also been made to support changes in copyright statutes and regulations. In the area of contracts and purchase orders, APA has worked to advance fair and equitable terms, and its efforts have benefited the entire photographic community. For details on how to join APA, visit www.apanational.com.
Jule L. Sigall is the Associate Register for Policy and International Affairs with the US Copyright Office. The Advertising Photographers of America and the US Copyright Office have worked together in order to help educate photographers about copyright law. For more information about the APA, visit www.apanational.com.
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