ASMP Copyright Guide for Photographers …

          ASMP Copyright Guide for Photographers
                     by Richard Weisgrau & Michael Remer, Esq.

    Copyrights can be valuable intangible assets. The Copyright Act of 1976 made
clear that photographers are the copyright owners of their images, except when those
images were made as an employee, or when the photographer has conveyed the
copyright to another party in a written and signed agreement.

    In an effort to enhance understanding of copyright, ASMP has developed this mini-
guide on the subject. This pamphlet is not a legal guide to the subject. Instead it is
intended to give you a fundamental understanding of the subject of copyright and how it
applies in your profession.

COPYRIGHT BASICS

    Copyright is a right, granted to you by law, to control the copying, reproduction,
distribution, derivative use, and public display of your photographs, and to sue for
unauthorized use (infringement) of your work.

    This right begins at the moment you fix your photographic expression in a tangible
form, that is, when you create the latent image, whether on film or digital media.
Copyright ownership, bestowed automatically when you make an image, does not
depend upon registration with the copyright office or placement of a copyright notice on
the image.

    Although most images are copyrightable, some are not. To be copyrightable, images
must be original. Originality is essential to copyright. If you exactly copy a photograph,
the copy can not be copyrighted, since it has no originality. (In fact if the first
photograph is copyrighted, you would need the original photographer's permission to
copy it.)

    Making a substantially similar copy of someone else's copyrighted image without
authorization constitutes copyright infringement. It is usually necessary to show that the
alleged infringer had access to the original work-but the images may be so closely
identical that no explanation other than copying is possible.

   Ideas, themes and concepts are not copyrightable, only the original expression of
those ideas, themes and concepts in some tangible form, like a photograph, can be
copyrighted. You might have an idea for a great photograph, but you get no copyright
until you make the actual photograph. An art director might have a great concept, but
that concept cannot be copyrighted.
    Having an idea or concept does not entitle one to a share of the copyright of the
photograph. The copyright belongs to the one who makes the tangible expression of the
concept or idea.

COPYRIGHT REGISTRATION

    Copyrights can be registered with the Copyright Office in Washington, D.C.
Although registration is not required to own the copyright, there is one instance in which
you must have a registration and another when there is a definite advantage to
registration.

    When legal action is necessary to remedy a copyright infringement, the image must
be registered before the legal action can be started. This registration can be made after
the infringement occurs. However, unless you register before the infringement (or within
three months after the first publication, even if after infringement), you will not be able to
sue for statutory damages, which are up to $150,000 per infringement, plus your legal
fees. When statutory damages are unavailable to the copyright owner a claim can still
be made for actual damages, that is, the amount of money lost as a result of the
infringement, plus the amount of profits realized by the infringer. But actual damages can
be difficult and expensive to prove, and legal fees can be an additional burden.

    A photographer should always seek legal advice from a qualified attorney before
threatening a copyright infringement action.

COPYRIGHT NOTICE

    ASMP recommends that all photographs carry a copyright notice, even though it is
no longer required by law. The lack of notice could provide an infringer with a defense
of "innocent infringement". This defense could seriously limit the recovery of damages in
an infringement claim.

   Copyright notice is a way of saying: This is my work - if you want to use it, come to
me. This stance reinforces the asset value to your work and alerts everyone that you are
prepared to protect that value.

   Copyright notice consists of the letter "c" in a circle © followed by the date of first

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publication and the photographer's name. For example, © 2001 (Creator's Name). The
word "Copyright" or "Copr." can be substituted for the © symbol. Either form is
recognized, but use of the © symbol can give additional international protection.
Although all three are acceptable it is generally thought that © 2001, (Creator's Name)
is the most widely recognized in the international community. The words "All Rights
Reserved" can also give further international protection.

    A word of caution is called for on the subject of notice. Some persons when typing
or word processing and some computer programs use a "c" in parenthesis [(c)] as a
substitute for a © . To the best of our knowledge this form of notice has never been
rejected by a court, but there is no guarantee that a court would uphold a (c) as proper
notice. The law calls for a © or the word "Copyright" or "Copr."

LICENSING THE RIGHT TO USE YOUR PHOTOGRAPHS

    As the copyright owner, you have to grant a license to someone in order to legally
use your image. A license is simply a permission to use the photograph with certain
limitations.

    A non-exclusive license does not have to be granted in writing-although ASMP
strongly urges all photographers to grant licenses in written form. This avoids
subsequent disagreements about the terms of the license. In the absence of a written
license, the photographer and client are in an awkward position. If a dispute over usage
arises, differing recollections of rights granted can only be resolved by negotiation or
legal action. Legal action is certainly costly and to be avoided if possible. Negotiation,
while suitable to resolve disagreements, is best done before use begins, not after the
fact. Negotiate the license, then confirm the usage rights in a written copyright license.

    Under the copyright law, an "exclusive" grant of rights means a transfer of all or part
of copyright. Avoid these words, unless you intend to transfer copyright ownership to
the client.

    If a client insists or you wish to offer exclusive rights, consider limiting the rights as
you would limit any other grant of rights. That is, you should properly grant the
exclusive rights for a certain time period, a certain geographic area, and a certain media,
such as advertising, books, etc. By applying limitations to the exclusive license you are
narrowing the transfer of copyright. By setting a time period you are assuring the
expiration of the transfer.

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    More information on copyright licensing, and samples of copyright licenses can be
found in the ASMP Professional Business Practices in Photography book, 6th Edition.
    The rights which you license should be based upon the outcome of the negotiations
which you have conducted with your client. Generally, you will grant rights to meet the
particular uses for which the client wants the work. The fee will usually increase as the
bundle of rights granted increases.

TRANSFER OF COPYRIGHT

   You can transfer copyright ownership to another party. Copyright, like any asset,
can be bought and sold. The only requirement in the law is that a transfer of copyright
ownership be in writing and signed by the copyright owner. Photographers should
exercise care in signing client purchase orders. ASMP has seen many examples of
purchase orders which have a copyright transfer included in the terms and conditions.
Signing such a purchase order would result in the loss of your copyright.

    There is no law that says you have to transfer copyright to a client. Remember, even
though the client might be the originator of the concept or idea this does not entitle them
to the copyright of the photograph which you, the photographer, originate.

WORK FOR HIRE

    Work for hire is another way the client can become the copyright owner. The
difference between work for hire and a copyright transfer is rather simple. In the case of
a copyright transfer you own the copyright until you transfer it. In a work for hire
situation you never own the copyright. It is owned by the client from the moment the
work is created, and the client is by law the author of the photograph. The
photographer is denied authorship and is treated as a tool of the client.

    Work for hire exists automatically in the case of an employee taking photographs
for the employer. As provided in the copyright law, no agreements are required.

    An independent contractor ("freelancer") can do a work for hire only in certain
circumstances. First, the work must be commissioned-that is specifically ordered by
someone, and if it is commissioned, it can be a work for hire only if the photograph
comes within one of the nine specific categories enumerated in the copyright act as
qualifying for a work for hire: as a contribution to a collective work, as a contribution
to a motion picture or audio-visual work, as a translation, as a supplementary work, as

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a compilation, as an instructional text, as a test, as answer material for a test, or as an
atlas.
    The category most frequently involving photographers is a contribution to a
collective work such as a magazine or other periodical.

WORK FOR HIRE AND COPYRIGHT TRANSFER DIFFERENCES

    Although many see work for hire and copyright transfer as the same thing, they are
not.

   Under the law, if you transfer the copyright you can get it back after thirty five
years. This "recapture" provision of the law was designed to allow photographers the
eventual control over their body of work. Also, when negotiating a copyright transfer
you have the ownership and can bargain for the price of the copyright.

    In a work for hire situation you never have the copyright. You have no recapture
right at any time. You are simply selling your services for a fee. That fee should reflect
the present and the future value of the copyright. If you signed a work for hire and later
want the copyright to the work, the only way you can get it is to negotiate with the
copyright owner to transfer it to you.

     Finally, a work for hire will apply to all photographs taken on the assignment, not
just to those used by the client. A transfer of copyright can be customized and apply to
all the photographs or some portion thereof, such as only those used by the client.

FAIR USE

   The copyright law allows someone to copy your work without penalty in certain
cases. This is called "fair use". In order to qualify for "fair use" the photograph would
usually have to be copied for educational, classroom, news reporting or other
educational or public interest purposes. Fair use is always subject to interpretation.
There is no simple rule to apply to determine when an unauthorized use is "fair use."

   Each case has specific facts that must be examined before such a determination can
be made. This is one reason why it is important to consult with a knowledgeable
copyright attorney before jumping to conclusions about infringement.



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COPYRIGHT AND COLLECTIONS

    In recent years the trend has been to invoice the client with terms stating that the
grant of rights to use the photograph is not in force until the invoice is paid in full. It
should be understood that under this provision nonpayment may be both a breach of
the client's contractual obligation and infringement of the copyright. This can create a
legal question about the best way to enforce your rights - a question best answered by
competent legal counsel.

BUYOUTS AND ALL RIGHTS

    "Buyout" and "all rights" are confusing terms and are thought by some to mean a
transfer of copyright. However, these terms have inconsistent trade definitions,
depending upon personal understanding, and consequently are not reliable in licensing
terminology.

    We urge you not to use such terms in licensing clients the rights to your
photographs. It is better to clearly state whether or not the copyright is being
transferred.

    An all rights agreement without a transfer of copyright is a permission to a client to
use your image as desired, while the copyright remains with you. This gives the client
the widest range of rights for the time allowed in the license without a transfer of
copyright ownership.

DEFINITIONS FROM THE COPYRIGHT ACT OF 1976

    "Audio visual works" are works that consist of a series of related images which are
intrinsically intended to be shown by the use of machines or devices such as projectors,
viewers, or electronic equipment, together with accompanying sounds, if any, regardless
of the nature of the material objects, such as films or tapes, in which the works are
embodied.

    A "collective work" is a work, such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions, constituting separate and independent
works in themselves, are assembled into a collective whole. A contribution to a
collective work can itself be copyrightable.


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    A "compilation" is a work formed by the collection and assembling of preexisting
materials or of data that are selected, coordinated, or arranged in such a way that the
resulting work as a whole constitutes an original work of authorship. The term
"compilation " includes collective works.

    A "derivative work" is a work based upon one or more preexisting works, such as a
translation, musical arrangement, dramatization, fictionalization, motion picture version,
sound recording, art reproduction, abridgment, condensation, or any other form in
which the underlying work may be recast, transformed or adapted. A work consisting
of editorial revisions, annotations, elaborations, or other modifications which, as a
whole, represent an original work of authorship, is a "derivative work."

    A "joint work" is a work prepared by two or more authors with the intention that
their contributions be merged into inseparable or interdependent parts of a unitary
whole. Each joint copyright owner can grant non-exclusive licenses to third parties
subject to a duty to account to the other joint owners for their share and profits.

   "Motion pictures" are audiovisual works consisting of a series of related images
which, when shown in succession, impart an impression of motion, together with
accompanying sounds, if any.

    A "transfer of copyright ownership" is an assignment, mortgage, exclusive license, or
any other conveyance, alienation or hypothecation of a copyright or of any of the
exclusive rights comprised in a copyright, whether or not it is limited in time or place of
effect, but not including a non-exclusive license.

FOR INFORMATION ON REGISTERING YOUR COPYRIGHT

    Registration is handled through the Register of Copyrights, Library of Congress,
Copyright Office, 101 Independence Avenue, Washington, DC 20559-6000.
Telephone: (202) 707-3000. A 24-hour "hotline" for obtaining registration forms is
(202) 707-9100. You can also obtain forms on-line from the Copyright Office at:
[http://lcweb.loc.gov/copyright/].

     Photographs are normally registered in class VA (Visual Arts). The procedure for
filing is quite simple. Complete Form VA, enclose your deposit materials and a check
for the $30 filing fee. See ASMP's "Registration Primer" for details on the deposit
materials required, tips for completing Form VA properly, and a brief discussion on

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how often to register your work. For registration purposes, every photograph should
have a title, which can be a simple descriptive caption. However, it is not required.

    Form VA is the basic form for registering all works in the visual arts. In addition to
photographs as such, it should also be used for registering the following items when they
are primarily or exclusively photographic in nature: books, advertising materials, and
most single contributions to periodicals. When these items consist primarily of text, they
should be registered in class TX.

    If first publication occurs in a separately copyrighted work, such as a magazine, you
can still register the copyright in class VA as a contribution to a collective work, thus
securing the advantages of statutory damages and legal fees in an infringement case as
mentioned above. This procedure is safer than relying upon the registration of the
collective work itself.


NOTICE

    The Copyright Act is an ever changing document. Every effort has been made to
make this paper as up to date as possible. This document is not intended to be legal
reference material.
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    This document is Copyright ASMP (American Society of Media Photographers,
Inc.) 2001. It is distributed as a service and a guide to creators, buyers and users of
intellectual property.

    Information about the ASMP Professional Business Practices in Photography book,
6th Edition, and the ASMP Registration Primer can be found at [http://www.asmp.org].

    Reproduction and distribution of this document for non-commercial use is
encouraged. Reproduction must remain intact, as a complete whole, including this
notice.

Copyright 2001
ASMP - American Society of Media Photographers, Inc.
150 North Second Street, Philadelphia, PA 19106
Phone: (215) 451-2767 Fax: (215) 451-0880


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