Pictures are everywhere. With digital cameras and high-quality cameras in almost every cell phone, it is very easy for photographers to take a picture anywhere and of anything. However, a lot of photographers do not know that there are intellectual property rights associated with every push of a camera button, and there are legal risks a photographer is exposed to when taking photographs.
Copyrights are a photographer’s best friend, but many photographers do not know or understand what a copyright is. In fact, the U.S. Constitution is the origin of copyright law as Article I, Section 8 states, “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” A copyright protects “original works of authorship” including literary, dramatic, musical and artistic works, including photographs. A copyright is secured automatically upon creation, but it must be in a fixed and tangible form of expression. For instance, once that camera button is pressed, a copyright has been created in a photograph whether it is on film or stored digitally. Copyrights cover both published and unpublished works. A photographer’s work is published when copies of a photograph are distributed to the public through sale, distribution or public display.
Usually, the photographer is the owner of the copyright in a photograph. However, if the photographer is an employee of a company for which the photographs are taken or is acting on behalf of an employer, then the employer is the owner of the copyright. Another exception is if the photographer has entered into an agreement or has assigned copyright ownership to another party. A question of ownership commonly arises when photographers take pictures at weddings. Even though the bride and groom pay for their wedding pictures, the photographer retains the copyright in those pictures. In the case of a professional photography studio, the studio may be the owner of the copyrights in the wedding photographs.
After a photograph has been taken, a copyright notice on the photograph may be used to identify the owner of the copyright. There are three elements to the notice: 1) the copyright (the symbol ©, the words Copyright or the abbreviation Copr.); 2) year of first publication (first distributed to the public); and 3) the name of the owner (abbreviation, company name or website). The notice can be placed on the front or back of a photograph or the backing, mounting or frame in which the photograph is contained. While a copyright notice is not required by the U.S. Copyright Office to secure rights in the photograph, it is highly recommended, especially for pictures on the internet, so that others know that they are not entitled to the same rights as the photographer.
As the owner of a copyright, there are certain exclusive rights granted to a photographer. Once a photographer takes a picture, he has the right to copy; prepare derivative works; and sell, display and distribute the photograph to the public. These rights last from the moment the photograph is created until 70 years after the death of the photographer. If the photograph is created from a work-for-hire, the copyright lasts 95 years from publication of the photograph, or 120 years from when the photograph was created, whichever is shorter.
Registration with the U.S. Copyright Office is not necessary for a photographer to have rights in a photograph. However, there are several reasons why a photographer should consider registering his photographs. First, the application is inexpensive, about $35 per application. An entire collection of photographs can be registered with a single application. Not only does a registration establishes a public record of the copyright claim, it is required to file a copyright infringement suit in court. A photographer can file a registration at any time during the life of the copyright, but if the photograph is registered within three months after the photograph is published or before it is infringed, statutory damages and attorney’s fees are available in the event of an infringement suit.
In addition to protecting rights in a photograph, photographers also need to be mindful of where, what and who they are taking pictures of and understand how to avoid potential liability. First photographers should take into consideration where they are taking pictures. In particular, it is important to know whether photographs are being taken on public or private property. It is legal to photograph anything and anyone on public property, but photography can be prohibited or restricted on private property. Private property can be photographed from within a public domain, such a public sidewalk, except for when the property owner can be identified from the subject being photographed. Another nuance is private property open to the public, such as a shopping mall, where photography is usually permitted unless it is explicitly prohibited. Additionally, tourist attractions are generally legal for photographers unless explicitly prohibited. With regards to cemeteries, the cemetery owner has the right to set its own rules. For example, Arlington National Cemetery does not allow tripods or lights without permission. Photographers can be asked to leave or be charged with trespassing if they do not follow the rules. National parks also have the right to require special permits or proof of insurance before a photographer can take photographs.
Second, photographers should keep in mind what they are taking pictures of. If a photographer takes a picture of sculptures or other types of art, the photographer may need to obtain permission from the artist to take or use the photograph. The artist does not have any claim to the copyright because the photograph becomes the photographer’s own work of expression through the types of lighting, angles and colors used. A photographer can also take pictures of trademarks, but he may run into issues if others viewing the photograph think that the trademark owner sponsors the photograph. Such confusion can lead to a trademark infringement suit. Therefore, it is important for photographers to keep in mind the subject matter of their photographs.
Finally, most photographers take pictures of other people. Photographing others is governed by privacy laws. Similar to property, photographers do not need to obtain consent of others if photos are taken in a public place. Consent is critical when there is a reasonable expectation of privacy, such as in dressing rooms, restrooms, medical facilities or inside a private residence. There is an exception with public figures as they have a lower expectation of privacy; however, a public figure can prevent the photographer from using the photograph if it is used for advertising. In certain circumstances a model release may be warranted to take the photo of a person. Some factors to consider are: if the person in the photograph is identifiable; the photograph is being taken in a private place; the photograph will be used for advertising or a commercial benefit; there is a chance of disclosing a personal matter; or the photograph is depicting someone in a false light. The release should specify the subject, date, nature of the photograph and what permissions are being given.
Overall, photographers should use their best judgment to determine whether they are violating any intellectual property or privacy laws and, when in doubt, ask for written permission before taking a photograph. After the photograph is taken, it is recommended that a photographer mark his work with a copyright notice to deter others from infringing his work. If the work is likely to be infringed, a registration application should be filed with the U.S. Copyright Office as soon as possible. Keeping in mind the rights and liabilities before and after taking a picture will only serve to protect the photographer. Therefore, photographers should take care to know these rights before snapping their next picture.
For more information regarding this topic please contact Jana Harris at Jana.Harris@icemiller.com or 317-236-5972.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.