Copyright, Copywrong

True or false?

• Photographs on the Internet are free for anyone to use.

• If you pay a photographer to take your picture, you own it.

• Photographs have to be marked with the word “copyright” to be copyrighted.

Guess what?  All of those statements are widely held as fact by many people.  And all of those statements are false.

Let me give you an overview of what is a copyright and what that means to you as the person standing in front of the camera.

But first, some terms to know . . .

An original work is something that a person used their own creative thoughts and skills and made, that is, it is something they can show you.  Three things are important in that definition:

1.       They used their creativity, it was not something they just copied.

2.       They are a person, a human being – I’ll tell you the monkey story in a few minutes.

3.       They made it, meaning it is no longer just a thought or idea but something they can show you.

So, an original work can be a painting, a computer program, a recipe for banana bread, a screenplay, a novel, a commercial jingle for breakfast cereal, choreography for a ballet, a design for a tuxedo, a symphony – and, of course, a photograph.  An original work is the person’s physical property.

A copyright is a type of intellectual property, meaning it exists but it is not something you can hold in your hand.  Its purpose is to protect the ownership of an original work.

Think of it this way – your house that you own is your real property.  You can paint it, add a room, install hardwood floors, etc.  Do you need to post a big sign outside that identifies it as your real property?  No, because you have protection – you have the title to the house that was registered when you bought it.  Your title protects your interest as the owner of the 3 bedroom, 2-1/2 bath split ranch at 1456 Hollyfield Court.  If you sell your house, you are selling more than the structure and the land it sits on.  You are also selling its title to the new owner.  The same with original works.  A copyright is like a title to that photograph.

Now that you know what sort of things are original works, let’s focus on photographs (pun intended).

When is the copyright created for a photograph?

A copyright attaches to a photo as soon as the photographer pushes the shutter and records it, whether as a digital file or on film.  The photographer may never transfer the file from their camera to a computer or bother to get the film developed but so long as the image exists, the photographer has a copyright for it.  There is no need for a photographer to put a watermark on it or the word “copyright.”  A photographer doesn’t have to publish it with a notice that it is their copyrighted image. 

They own the picture and they own the copyright in most cases.  I say “most cases” because sometimes the photographer agrees in a contract to transfer the copyright to someone else, usually in exchange for more money than if the photographer held on to the copyright but allowed the other person to just use the photo.  Usually, you would see this happen in commercial photography, such as when a food photographer is making images for a restaurant chain to use on their menus.

So how does a copyright protect the photographer?

A copyright gives a photographer specific rights:

·       The photographer can reproduce the picture in as many copies as they want.

·       The photographer can edit the picture in as many ways as they want, whether they make it black and white or give it a “grunge” feel.

·       Sell or give away copies of their picture.

·       Display the picture publicly.

More importantly, unless the photographer gives their permission, the copyright prevents anyone else from exercising these rights.

But I bought the picture!

No, what you bought was a copy of the original work.

A copy of original work does not create a new original work.  Even if a photographer gave you a digital file, it is still just a copy of the original, yes?  As they say in Highlander – “there can only be one.”  It does not make sense for there to be multiple copies of something that is meant to be original.

What the photographer gives you is called a license in law.  A license gives you permission to use your copy in a certain way.

You will often hear a photographer say that for your money, you will get a digital file (still a copy) and a print release.  That generally means you can use the file to make a print to display on your wall, use for a graduation announcement, or make a t-shirt for Meemaw to show off her new grandchild to her bingo buddies.

But it means you cannot submit it to a magazine, or enter it in a “Cutest Baby” contest, or use it to advertise your family business, or place it on a t-shirt to sell on Etsy.  That requires the permission of the photographer because uses like that go beyond just your personal enjoyment.

And you know what?  If you ask the photographer, chances are you can get permission – although be prepared to pay extra for that use.

That doesn’t seem fair, it’s me in the picture.

Many people have an account with Spotify.  For a monthly fee, you can listen to and even download songs.  For that monthly fee, you can enjoy the music . . . personally.  But let’s say you want to start a business as a wedding DJ.  Can you use that Spotify song? 

No, you can’t.  The license you get is for personal use, not commercial use.  Your professional wedding DJ has to pay a commercial license fee in order to play Ed Sheeran’s “Perfect” for the couple’s first dance,  That is usually why they give the bride and groom a prepared song list to pick from because otherwise they have to purchase a commercial license if they haven’t already (yes, as new songs become popular, a DJ is buying licenses).  Ed Sheeran and other musical artists own the copyright.  A wedding is a public performance of their original work for which the DJ is getting paid.  They want to protect their property rights.  If you have ever tried to use a popular song for that video of your nephew’s graduation that you put on YouTube and found the audio muted online, it is because YouTube can flag it as copyrighted material and you need to prove to YouTube that you have permission to use it.

Can I get the copyright for my photos?

Yes – for a price.  Where a photographer expects to give you a license to enjoy your picture, whether it’s posted on Facebook or hanging over your fireplace, they don’t expect to part with their property.  They may be willing to negotiate with a client to transfer the copyright – but remember how a copyright is like title to a house?  No one is going to transfer the title to a house without expecting payment.

What is easier is to ask your photographer for specific use.  Some years back I photographed a scientist at the solar eclipse viewing in Madisonville, Tennessee.  A few days ago, I received an email from a person who produces a podcast on such scientists.  He wanted to use my photo for his show notes.  I agreed in exchange for accreditation on the photo, identifying it as my work.  That doesn’t mean I always do that – I have sold photos to academic journals and magazines for money.  It is all part of the business of being a professional photographer.

Even if it’s posted it on the Internet?

Even then.  Just because a photographer posts a picture on social media or a blog that does not mean they are offering its use for anyone who right clicks on it and chooses “Save Image As.”  If you are ever tasked with creating a website or a flyer, and your supervisor tells you to “grab some images off of Google,” doing so is likely to result in a copyright violation.  If the photographer or a company like Getty Images to whom the photographer sold the copyright finds that you did so, you could be facing thousands in damages awarded by a judge.

Sometimes you can use copyrighted material without the permission of the owner but those exceptions are limited under what the law calls fair use.  An example of fair use is using a photo in a book report that discusses the photo itself, say, when the topic was on the style or technique used by the photographer.  Whether or not use of a photograph falls under fair use depends on the circumstances of that particular use.

Does that mean the photographer can do whatever they want with my picture?

Well . . . almost.  Separate and apart from copyrights is the subject of releases.  Sometimes a photographer is going to use their photo in such a way that they need the permission of the person in the photo or the owner of the object in the photo.  But that’s a topic for another blog post . . .

Wait, what about the monkey?

In the early 2000s, a British nature photographer traveled to Indonesia and, as he claims, befriended a group of wild macaques, a type of monkey.  He set up camera gear in such a way that he hoped would encourage the monkeys to take selfies.

And it worked!

The pictures caused a sensation when they were published in newspapers.  Then Wikipedia hosted the images on their website where anyone could download them.  The photographer sued, saying his copyright was violated and he lost significant money in licensing fees.  After all, he argued, he went through the expense of hauling camera gear to Indonesia, crawling through the jungle, dealing with mosquitoes and snakes, and making friends with the monkeys.

Except . . . who pressed the shutter on the camera?

The United States district court ruled that copyright law does not extend to animals.  The monkeys have no rights under the law and since they were the ones that took the pictures, those images became what is known as public domain, meaning they could be used by anyone.

Cue sad trumpet: wah, wah, WAAAHHHH.

In conclusion . . .

When you pay a photographer to take pictures for you, you and the photographer should be clear on how you can use the photographs.  That agreement is best written down in a contract but sometimes all that is required is a communication, such as an email or even a notice that by downloading images from a gallery you agree to specific uses only. 

When in doubt ask your photographer.  It’s all just a part of doing business.

And please, when you can post your photos on social media, don’t forget to tag us!