Photographs and other images are protected under the laws of copyright and the creators, as copyright owners, have absolute rights to control the use of their photographs. Infringers are those that violate the owners’ rights and can be subject to fines, destruction of the infringing work, and in some cases, even criminal penalties and imprisonment.With access to so many images, via traditional print media, CD-ROMS and the World Wide Web, along with the ease of copying, manipulating, and combining images, the rights of the copyright owners are either forgotten in the excitement of the new technology, overlooked due to ignorance, or just ripped off because the chances of being caught are considered to be too remote. Since ignorance of the law is no excuse when it comes to copyright, and the costs of defending an infringement action are expensive, up to eighty-thousand dollars or more, and settlements or awards high, not knowing the law can cost you. And like every driver that speeds on the highway, even the information highway, there is always that chance of getting a ticket. Technology may even be your worst nightmare; the image you download for your next job may be encoded. When the piece is published, an Internet scanner can trace the work and turn you in! The purpose of this paper is to debunk certain myths and arm you with the information you need to protect yourself, your job and your client from infringing the copyright of an image owner. The Copyright Act is a complex federal statute. This paper is only intended to be an overview, so you know when you should ask a few more questions before you assume an image is free. The Copyright Office publishes many "Circulars," information distributed free to the public. One is "Copyright Basics." You can obtain circulars and forms from the copyright office at their website, http://lcweb.loc.gov/copyright/, or by calling The Copyright Office Forms Hotline at (202) 707-9100. The Picture Agency Council of America, Inc.(PACA), a trade association of stock imagery libraries, publishes the PACA Copyright Commandments, which are written in plain English to inform users of copyrighted images of their responsibilities. The commandments are listed at the PACA website at http://www.pacaoffice.org.
Many myths circulate the dens of designers, graphic artists and other users of images. Like most myths, the origins are unknown, but are assumed to be universal truths. These myths are not, in fact, based on the Copyright Act or case law that explains copyright. If relied upon, you and your employer, or your client, could end up violating the Copyright Act and face costs much greater than if permission to use the image had first been obtained and a license fee paid before using the image.
Some of the myths I have come across are as follows:
• Anything on the Internet or the WWW is in the public domain
• If there is no © notice, you do not need permission
• If you alter any image 20/25%, you don’t need permission
• If you only use part of an image, you don’t need permission
• If you change the medium, you don’t need permission
Familiarity with some basic copyright concepts will help you understand why these ideas are untrue.
What is Copyright?
The Copyright Act (Title 17 of the United States Code) is the protection of original works of authorship. It is derived from the Constitution of the United States under Article 8 which provides that "Congress has the power to promote the progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries." Copyright is essentially an economic property fight, owned initially by the author. It serves to provide an incentive to artists to pursue their art and derive economic benefit for a limited period. While proponents of swipe art may argue that copyright is dead, and the arts better promoted if everything is free and available to users, the Constitution chose to reward the original creators with exclusive rights to their works.
Since the Constitution was written, the Copyright Act has been amended many times. The most recent act, Copyright Revision Act of 1976 (effective 1978), revised the 1909 Act. It was intended to be technology neutral, to evolve with technology, which was not the case with the prior act as it did not foresee radio broadcasts, television, movies, videos or computer programs, to name a few. Since then, the Act has been amended several times, primarily to eliminate some formalities imposed by the Act, to permit the United States to join international copyright conventions, such as the Berne Convention, effective March 1, 1989 and most recently to implement aspects of the WIPO Treaty, and to examine issues brought about by the new technologies. This most recent amendment is formally entitled the Digital Millennium Copyright Act.
Since March 1, 1989, the formal notice requirement or ©, is not mandatory in order to secure copyright protection. Failure to use a notice after that date does not place the work in the public domain (free to use without permission). The myth that no copyright notice means you can freely use at work is not true. I still recommend that copyright owners continue to use the notice (©, name, date) since it informs the viewer that the work is protected.
How long is a work protected?
Recent legislation has extended the term of copyright protection to life of the author plus 70 years. Works that are owned by corporations are protected for 95 years.
What works are protected?
The Act protects "fixed works of expression" including the visual arts, (pictorial, graphic, sculpture), writings, music, dramas, motion picture, audio visual, choreography, sound recordings and architecture. Even though the word fixed is used, the Act has been interpreted to give protection to works on computers, which cannot be read without the aid of a machine. The more creative or artistic a work is, for example a work of fiction or art, the greater the protection. In order to be protected the work must have a minimal level of creativity. While there must be some form of originality, not much is required. The alphabetical listings in a phone directory are not original enough.
What is not protected?
The Act does not offer protection to ideas, words or short phrases, facts or utilitarian works. For example, if there is only a limited number of ways to express an idea, protection will not be granted. This applies to accounting forms and contest rules. Since a copyright is essentially a monopoly for a period of time, it would not be in the public’s interest to have only one source of accounting forms or contest rules. While these rules seem simple, they are not always easy to apply. A lamp may be utilitarian, but the base may be so sculptural that it is protected as a copyrighted work of art. It can sometimes be difficult to distinguish between the idea and how a particular artist expressed the idea. Short phrases are not protected by copyright but may be protected by trademark law. Works created for the United States government by its employees acting within the scope of their employment are not copyrightable. This places government created work in the public domain. That is why anyone can obtain government map or copy the circulars from the Copyright Office.
Who is the Owner?
Since 1978, the creator of a work owns the copyright, unless the owner transfers the rights to another. If you hire a photographer to take your portrait, the photographer owns the copyright. You may only own a copy of the print. These rights of ownership are exclusive, only the author can give them away. Generally, if a work is created by an employee within the scope of employment, the employer is considered the author/owner. In most situations, an independent contractor, such as a freelance photographer will not be considered an employee, and the work will be owned by the photographer. To be classified as a work made-for-hire, with the hiring party owning the copyright, the work must fall into nine enumerated categories under the Copyright Act. Otherwise a work-for-hire agreement must be in writing and signed by the author. You cannot cheat, and write a work-for-hire agreement on the check endorsement, after the work is created.
Exclusive rights of ownership
The copyright owner controls the rights to his or her work to the exclusion of others. The ones that apply to the visual arts include the following:
• Reproduction
The reproduction, or making of a copy, of the whole or part of a work without permission, constitutes infringement. A copy can be made by making an exact copy, or by imitating the original. There is no fixed rule to determine how much can be copied. Even a small portion may be considered an infringement. There is no safety in taking only a portion, or having another photographer make a similar image. Examples are included under the copyright pitfalls section.
• To modify the work (derivative works)
The right to modify the original work belongs exclusively with the owner. This includes the right to make a painting from a photograph, or a collage from several different photographs or images. This right covers any form in which the original can be recast, transformed or adapted. Even if derivative work is extremely creative, permission must be obtained from the owner of the original work. Manipulating and combining images in Photoshop or similar computer programs without permission creates an unauthorized derivative use.
• To distribute copies
The copyright owner is the only one permitted to distribute copies of the work to the public by sale or other transfer of ownership, such as a license agreement. If a photograph is needed for publishing, in a book, advertisement or website, as an example, a written license must be obtained, and in most cases a fee or royalty negotiated.
How to legally obtain rights to a work
Only the owner can grant the right to use his or her work. This grant is usually called a license or an assignment. The terms of use should be clearly described. The size of the use, distribution, territory, and length of time used are just some of the terms that must be considered, depending on the use. You only have permission to use the rights granted; all other rights are retained by the owner. If you use the work longer than the time period granted, you are also an infringer. Once the terms expire, your rights expire. For example, if you have permission to use a photograph in a brochure for one year, and you use it for two, you are an infringer. Copyright is separate and distinct from the work itself, the book, the painting, the photograph, song, etc. You can buy a photographic print or a painting, but you will not own any of the rights under copyright unless you acquire them specifically. Copyright owners can permit many people to use the same work by creating different licenses. The same image can be used as a book cover, a billboard advertisement, or on a website. If you want to be the only one who can use a certain photograph for a period of time, known as an exclusive use, that agreement must be in writing. It is recommended that all uses, even non-exclusive uses, be reduced to writing to avoid disputes.
Can anyone lose their rights?
Since 1989, even if you don’t use a © symbol, you cannot lose your right unless you make a transfer in writing. Public domain only applies to works created by the government or published without the proper notice before 1989. The copyright notice on a magazine, newspaper or book’s masthead or front page is considered adequate copyright notice for the inside contributions (other than advertisements). If you have a question, consult your copyright attorney!
What is Fair Use?
The exclusive rights of a copyright owner are limited by the fair use doctrine. This doctrine permits the use of copyrighted material without permission to promote scholarship and criticism. It is a limited doctrine and a defense to infringement. Fair use does not permit advertisers to use copyrighted material without paying for the use. It is risky to rely on this defense. It means you are infringing, and a court must determine if the defense applies by analyzing a number of factors using the facts of your case. The most heavily weighed factor is whether the use is commercial or for research. When a court must decide, you are most likely spending more money defending the action than if you had obtained a license before using the image. In most cases, if the work could have been licensed, the defense will not apply.
What can happen to an infringer?
The owner of a copyright has various remedies against an infringer under the Copyright Act. One remedy is an injunction, a court order that stops the use completely. The fact that this may cost the infringer a lot of money is not necessarily a relevant factor. Monetary damages are available. The copyright owner under certain circumstances, may elect statutory damages which permit a court to award up to $100,000 if willful infringement is found. Profits or damages may be elected as a measure of damages as well as attorneys fees and costs. The destruction of the infringing material may be ordered. The Act provides for personal liability, even if you work for a corporation, in circumstances where the individual was instrumental in permitting the infringement.
Ask First!
Copyright is the protection offered all creators. A designer or artist does not want his or her work copied any more than a photographer. Asking permission to obtain works to include in computer illustration or other design does not mean the end of creativity. There are many options and sources of images. When rap music emerged as a music genre along with the proliferation of music sampling, the artists argued that sampling was part of the genre. It only took one court to decide that this was an impermissible infringement before the record companies required permission for sampling. Licensing is now the practice in the music industry. A good motto is to ask first. It is much easier to negotiate a reasonable license fee for a use than to pay a settlement after you have been caught. If you use an image in a comp, it is likely that the client will want the same image in the final project. If an image is not available, do not have another photographer create a similar one. This violates the exclusive right to distribute and make copies. It is difficult to create a wholly original work if you have an example of another artist’s interpretation in front of you.
Examples of copyright pitfalls
• Combining images
The cover of Newsday Magazine shows people running with "TV set" heads. A computer artist combined a number of images from various source books, including an image by James Porto, who is represented by the stock agency FPG. The James Porto photograph was a computer concept image. Even though only a portion of the image was taken, and the elements "flopped" and combined with other images, the copyrightable elements taken were easily distinguishable. The background of the composite image was taken from another photographer, using a different stock catalog. The case settled but the attorneys’ fees and settlement figures for both images were high.
• Altering the original image
Scanning a portrait of Bob Dole from the cover of Time Magazine and imposing a pineapple surface on the face may be a play on words, but it is also a copyright violation. When the use is on a commercial product, the argument of political free speech does not apply.
• Copying image exactly/corporate liability and profits
When an image is copied, even on fabric, the result is an infringement. For example, a photograph of Penguins presented in the Allstock catalog, was found to be the basis of nightshirts and boxer shorts distributed through the Nature Company catalog. All companies in the chain, from the fabric maker, to the manufacturer, and ultimately the distributor, were sued and the profits were turned over.
• Copying image by having a photographer take a similar picture
If you or your client do not want to pay for the image used in a comp, do not hire another to create a similar shot. Too many of the copyright agreements will be the same. Simply having a different model with a different color outfit will not be enough to avoid a situation of substantial similarity. A photograph of a "Girl in a bathing suit, on a bench with a Dove" was infringed by another advertisement of a different girl, lying on a bench holding a dove. The photographer was asked to create a similar and the client saw the copy in an advertisement and commenced an action.
• Changing the medium is still an infringement
Using a still photograph in a video or film is still an impermissible copy, even if the image is manipulated. This is an example of a derivative right owned by the copyright holder. An example of this type of infringement is an image from the Photo Researcher’s Catalog, of a hand taken with a special technique, used as a basis of the television opening for the "X Files". The Tonight Show borrowed a photograph of a baby from an International Stock catalog, added tattoos, drum sticks, and a milk mustache as part of a "Got Milk" skit. Permission was not obtained and a quick settlement was reached. Nor is it permissible to make a sculpture from a photograph, no matter how expensive the sculpture is sold for, as Jeff Koons, the famous artist discovered when he copied Art Rogers’ photograph to create his "String of Puppies". A license to create an art rendering is required when changing the medium.
• Using an image as a reference without permission
If you admire the concept of an image and want to create a variation, request permission and pay an art reference fee. This will avoid a claim of infringement by the owner of the original piece.
Copyright is not dead, despite the proliferation of desktop publishing, scanners, and the ability to download from the Internet. Knowing the rights of a copyright holder and the responsibility of an image user will allow you to use imagery in creative ways without subjecting you, your studio, or employer to expensive claims of copyright infringement. If you are not sure if you can use an image, ask permission or the advice of a copyright expert...because what you don’t know can hurt you!
© 1998 Nancy E. Wolff
Nancy E. Wolff is an intellectual property attorney, located in New York City. Her practice includes copyright as it relates to the visual arts and new media. No permission is required to reproduce this document provided that credit and proper copyright notice is provided.