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Photo industry copyright law summary.

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What Is Copyright? Who Owns What? 1. Pre-1978 commissioned photos 2. Photos made in 1978 and after 3. Assignments 4. Death of photographer 5. Summary How Long Does Copyright Last? 1. General rule 2. Extended life in older works 3. Public domain 4. Lost protection Is a Copyright Notice Required? What Is the Innocent Infringement Defense? What About Fair Use? What Are a Customer's Privacy Rights? Remedies and Penalties for Copyright Violations 1. Statutory damages 2. Conditions for statutory damages What Are Ways to Avoid Copyright Liability? 1. Copyright policy 2. Copyright guidelines 3. Customer copyright information 4. Copyright forms What About Image CDs? What About Removing Copyright Information? What Is the Digital Millennium Copyright Act and Internet Liability? 1. User Storage 2. Links 3. Conduits 4. System caching 5. Published policies/accommodation required 6. Removal protection 7. Subpoenas 8. Other laws What About Online Fair Use? 1. Thumbnail images 2. Time and space shifting What Are the Registration Requirements? 1. Industry guidelines 2. Innocent infringement 3. Why register 4. Published photos 5. Conditions 6. Works for hire 7. Unpublished photos Summary

Introduction

This summary is designed to provide information to help photo industry members understand the copyright law of the United States and how it affects you and your customers. While several topics of direct importance are discussed, there are many provisions of the law which are not covered in this material. You are encouraged to consult with your attorney for more information specific to your circumstances. This summary is not intended to provide advice for your particular problem.

What Is Copyright?

The Copyright Act gives "copyright" protection to "authors" for their "original works," such as photographs. Among the protections that copyright owners have are the exclusive rights to:

1. Make copies of the work.

2. Prepare other works based on the original. An example is a new image that incorporates a pre-existing image, whether the new image is created manually or by digital manipulation of parts of the original image.

3. Distribute copies of the work to the public by sale, rental, lease, or lending.

4. Publicly perform and display the work.

These rights are protected by laws which provide for damages and criminal penalties for violations. The customer, the photographer, and the lab are all subject to the law.

Who Owns What?

The law says the "author" is normally the owner of the copyright. The author of a photo or image is usually the person who snapped the shutter or created the image. If your customer took the photo, then the customer owns the copyright. Possession or ownership of the print, negative, media card, CD or other tangible property does not directly affect copyright ownership. The two are legally separate, and can be owned by different people.

Pre-1978 commissioned photos. On January 1, 1978, the law drastically changed who owns the copyright in commissioned photos. The customer (absent any other agreement between the customer and the photographer) owns photos commissioned before that date. Requests made by the customer to copy those photos can be validly honored without anyone else's permission.

A complication exists, however, if the photographer created the photo without a prior commission, at his or her own expense. In this case, the photographer owns the copyright. Those photos cannot be copied without the photographer's permission. How are you going to know which is which? All you can do is examine the image and ask the customer. See the sample forms that are a part of the PMA Copyright Package.

Photos made in 1978 and after. Since January 1, 1978 the photographer is the default owner for the photos he or she takes. If the photographer would be the owner, but he or she is working as an employee, such as being paid wages to take photographs for a studio, then his or her employer is considered the author/owner of the photo if the photo was made in the course of his or her employment.

Assignments. No matter who originally owns the copyright, rights can be assigned to another person. Such an assignment must be in writing and bear the signature of the prior copyright owner. If the copyright was assigned, then permission from the new owner (such as the photographer or the photographer's employer) is required before copies and alterations can be made. You won't know if such an assignment occurred, but some protection from liability is discussed below.

Death of photographer. The law applies whether or not the photographer is alive or the studio is still in business. Going out of business does not affect the legal ownership, since ownership passes by inheritance or by transfer to creditors. That the studio is still in business does mean that the potential for a dispute is greater. It is also more likely that someone will be damaged if a lab makes a copy.

Summary. As you will notice, the arrangement between the photographer and the customer is vitally important in determining who has to give permission to make copies or alter the image. Because the rights are affected by circumstances not readily apparent to the photo lab, further steps are recommended to minimize the risks of liability.

When you realize the potential situation in advance of making a copy, you may want to require that the customer obtain the permission of the photographer. Another potential option is to require that the customer fill out a form warranting the applicable facts. With that information, the lab can better decide whether it should alter or reproduce an image. A sample form is included in the PMA Copyright Package.

When you realize the problem after the copy has been made, the legal defenses available to a claim of infringement are more limited. They are discussed below.

How Long Does Copyright Last?

General rule. In the United States, copyright in photos lasts for the life of the author plus 70 years. In the case of works for hire created by employees or certain contracted workers, copyright lasts 95 years from the date of first publication or 120 years from date of creation, whichever ends first. In all cases, the actual expiration of the copyright is December 31 of the calendar year in which the applicable period ends.

Extended life in older works. Determining the protected life of older works is complicated. It is possible...