Copyright notice

© Copyright

This website and its content is copyright of Photography by Bryan Farrell – © 2015 Photography by Bryan Farrell. All rights reserved.

Any redistribution or reproduction of part or all of the contents in any form is prohibited other than the following:

You may print or download to a local hard disk extracts for your personal and non-commercial use only, this excludes the use of any images owned by Photography by Bryan Farrell on this or any other site.

You may copy the content to individual third parties for their personal use, but only if you acknowledge the website as the source of the material and include a clickable link back to the original content.

You may not, except with our express written permission, distribute or commercially exploit the content. Nor may you transmit it or store it in any other website or other form of electronic retrieval system.

4 Replies to “Copyright notice”

  1. Why You Don’t Own Your Wedding Photos: How to Own Your Wedding Day & Copyrights to Your Wedding Day Photos

    Wedding Photos Copyright – Photo Credit: iStock PhotoPsssst.

    Did you know that few people really own their own wedding photos?

    It’s a little known fact that most people are shocked to discover.

    However, after reading this post you’ll understand why wedding photos are the most expensive photos of a lifetime that most people don’t own and more importantly, how you can avoid this common wedding-day fail and own your wedding day AND your wedding photos.

    A wedding is such a personal matter. Many automatically assume full ownership of wedding photos belongs to the happy, new couple. They figure the wedding photographer is merely someone paid to render a service, and never imagine that, in actuality, ownership belongs solely to the photographer.

    It’s a matter of copyright right law, and a finicky one at that.

    Owning Your Wedding Day, Doesn’t Mean You Own Your Wedding Day Photos

    Here’s the scenario: With the wedding only weeks away, the future Mr. and Mrs. Nuptial are planning their wedding photos. They’ve hired the magnificent Mr. Flash, a very popular wedding photographer whose reputation precedes him. The Nuptials, having seen his work, are thrilled to have him on board. In a brief meeting, Mr. Flash describes the details of the pre-wedding photo shoot as well as the arrangements for wedding day pics. Trusting his experience and reputation the Nuptials agree. Everything is set.

    After the wedding, the Nuptials are back from their honeymoon and excited to see the lovely photos of their beautiful day. More importantly they want copies to share with friends and family. They dial up Mr. Flash and speak with his assistant. She quickly informs the couple, to their utter dismay, in order to take any photos home, they’ll have to pay a whopping expense for each extra print.

    Doesn’t seem fair, right? Or, does it?

    What Copyright Law Says on the Matter

    First and foremost, what exactly does copyright law have to say on this pesky issue of wedding photo ownership? Is there any way to prevent the Nuptials scenario from playing out over and over again all across America?

    Under U.S. copyright law, the original owner of a created work is exclusively the creator, unless it’s a ‘work for hire’. In the wedding scenario, a photographer is hardly ever ‘for hire,’ and so we end up with the typical Nuptials situation. Even though married couples spend thousands for a photographer to cast their most memorable moments in just the right light, they may never actually own the results.

    The reason this seems like such an anomaly has to do with the digital age. In this rapidly changing digital world, it’s easy to copy, paste, post, share and deliver photos to anyone anywhere in the world. It should be easy to do what we please with our own wedding photos, right? Not being able to seems absurd. However, the law is quite clear: The copyright owner of wedding photos is the wedding photographer.

    This means the wedding photographer, not the new couple, has the right to do with the photos as he pleases (short of unlawful slander or defamation, of course). This includes promotion in advertisements for the business. Most often, the photographer exercises this right fully, charging a hefty fee for reproductions, usually burned onto a DVD and sold to the couple. Many photographers, though they absolutely could, would never sell or transfer their copyright to anyone else due to the highly lucrative nature of such rights.

    What About Payment and Possession? Doesn’t THAT Equal Ownership?

    Another matter that makes this issue confusing is possession and payment. Many assume that possession of images – having a photo in your wallet or in the ‘Photos’ folder on your hard drive – and payment is the same as ownership. Yet, this is far from the case. With copyright law, the ownership emphasis is always on the original creator of a work. This means, even after payment, a buyer may not actually own the photos they’ve paid for.

    For example, suppose someone takes a photo of a sculpture. Who owns the copyright – the photographer or the sculptor? Though it’s a bit tricky, the correct answer would have to be the original sculptor since, under copyright law he is the original creator of the sculpture. Though, the photographer is in possession of a photo of the work, he cannot own the copyright to the sculpture because he is not the original creator, and must have permission to reproduce images thereof.

    Suppose that photo was subsequently made into a postage stamp, without the permission of the sculptor, and the stamp made millions of dollars in sales? Who has the right to the millions? Again, the correct answer is the sculptor. No matter how many times the work is re-created and paid for and no matter who has possession of the work, if the person in possession is not the original creator, that person is not entitled to the copyright.

    What About the Nuptials? Don’t They Have Any Rights Here?

    US copyright law, being quite keen on fairness, conveys to creators of original works a “bundle of rights.” Within that bundle is the creator’s exclusive right to control the way the work is used. Specifically, no one else can reproduce, adapt, publicize, perform or display the work without the original creator’s permission.

    For the Nuptials, the key word here is permission.

    In fact, it’s quite normal today for a wedding photographer to allow couples permission to use and share wedding photos through a usage license or similar agreement. Of course, this license limits use of the photos to the couples’ personal use and never for commercial purposes.

    It’s important to note that a photographer’s license almost always covers digital sharing as well. However, most photographers will only permit the sharing of photos online if an identifying watermark giving credit to the photographer is also in place on each photo. It’s good business to do so, and it’s certainly understandable, now that we have a clearer picture of the law on this issue.

    For Best Results

    It’s always a good idea to ask about licensing policy and procedure in initial meetings with your wedding photographer. If a photographer is promoting their services with full copyright as an incentive, find out what they really mean before diving in head first.

    That said, in some cases, it may be possible to make special arrangements in order to obtain the full copyright to your wedding photos. This would be done through what’s known as a copyright release. Not every photographer will offer these, but with a bit of searching you may be able to find one. Those who don’t offer it already may agree to your well drafted release, but expect a price into the hundreds of dollars if you’re dealing with an experienced professional.

    The Copyright Release & Transfer: How to Own Your Wedding Day AND Your Wedding Photos

    Essentially, a copyright release and transfer is an agreement between the creator of a work and a future user of the work. For an agreed upon price, a photographer gives up the copyright to the work, without any rights retained, granting a new couple full permission to do what they please with their wedding photos. Eureka!

    Copyright releases range from a simple letter with a straight-forward statement of release to more complicated permissions. Many photographers have their own. A few online resources can help with drafting copyright releases, and with a little work and research you could draft your own. The other more costly option is to hire an IP lawyer to do the drafting for you.

    Still, a third and easy online option is to use Kunvay. Kunvay helps buyers handle copyright ownership transfer online with downloadable copyright transfer documentation. For quick and easy photo copyright transfers, simply use Kunvay’s three simple steps to manage the transfer. It’s by far the most pain-free and budget-friendly way to gain the oh-so-elusive wedding photo copyright so you own photos and your future.

    The Recap

    Begin by accepting that, even after payment and possession, no one except the wedding photographer owns the copyright to wedding photos. The good news is that most photographers include in their fee a DVD of the photos along with a usage license permitting personal use of the photos as well as online sharing that credits the photographer.

    Sometimes, a couple can make a special copyright release arrangement with the photographer. This release transfers full copyright to the couple and gives them formal permission to do with the photos as they please without limits. If this is your ultimate goal, consider saving time and money with a reliable online resource like Kunvay to get the job done quickly and conveniently.

    When it gets right down to it, understanding wedding photo copyright is not quite so complicated, but it’s important to be aware of especially since most people will never spend more on photography in a lifetime than they will on their wedding day – and for many people, owning your wedding day, also means owning your wedding day photos.

  2. Legal restrictions on photography[edit]

    Mass photo gathering in UK.

    Mass photo gathering in UK.
    In general under the law of the United Kingdom one cannot prevent photography of private property from a public place,[citation needed] and in general the right to take photographs on private land upon which permission has been obtained is similarly unrestricted.[citation needed] However, landowners are permitted to impose any conditions they wish upon entry to a property, such as forbidding or restricting photography.[citation needed] Two public locations in the UK, Trafalgar Square and Parliament Square, have a specific provision against photography for commercial purposes without the written permission of the Mayor,[1] or the Squares’ Management Team and paying a fee,[2] and permission is needed to photograph or film for commercial purposes in the Royal Parks.[3]

    Persistent or aggressive photography of a single individual may come under the legal definition of harassment.[4]

    It is a criminal offence (contempt) to take a photograph in any court of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal, or to publish such a photograph. This includes photographs taken in a court building, or the precincts of the court.[5] Taking a photograph in a court can be seen as a serious offence, leading to a prison sentence.[6][7] The prohibition on taking photographs in the precincts is vague. It was designed to prevent the undermining of the dignity of the court, through the exploitation of images in low brow ‘picture papers’.[8]

    Photography of certain subject matter is restricted in the United Kingdom. In particular, the Protection of Children Act 1978 restricts making or possessing pornography of under-18s, or what looks like pornography of under-18s. However, the taking of photographs of children in public spaces is not illegal.

    It is an offence under the Counter-Terrorism Act 2008 to publish or communicate a photograph of a constable (not including PCSOs), a member of the armed forces, or a member of the security services, which is of a kind likely to be useful to a person committing or preparing an act of terrorism. There is a defence of acting with a reasonable excuse, however the onus of proof is on the defence, under section 58A of the Terrorism Act 2000. A PCSO cited Section 44 of the Terrorism Act 2000 to prevent a member of the public photographing him. Section 44 actually concerns stop and search powers.[9] However, in January 2010 the stop-and-search powers granted under Section 44 were ruled illegal by the European Court of Human Rights.

    Following a prolonged campaign, including a series of demonstrations by photographers dealt with by Police Officers and PCSOs, the Metropolitan Police was forced to issue updated legal advice which now confirms that ‘Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel’ and that ‘The power to stop and search someone under Section 44 of the Terrorism Act 2000 no longer exists.'[10]

    It is also an offence under section 58 of the Terrorism Act 2000 to take a photograph of a kind likely to be useful to a person committing or preparing an act of terrorism, or possessing such a photograph. There is an identical defence of reasonable excuse. This offence (and possibly, but not necessarily the s.58A offence) covers only a photograph as described in s.2(3)(b) of the Terrorism Act 2006. As such, it must be of a kind likely to provide practical assistance to a person committing or preparing an act of terrorism. Whether the photograph in question is such is a matter for a jury, which is not required to look at the surrounding circumstances. The photograph must contain information of such a nature as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism. It must call for an explanation. A photograph which is innocuous on its face will not fall foul of the provision if the prosecution adduces evidence that it was intended to be used for the purpose of committing or preparing a terrorist act. The defence may prove a reasonable excuse simply by showing that the photograph is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism, even if the purpose of possession is otherwise unlawful.[11]

    Copyright[edit]
    Copyright can subsist in an original photograph, i.e. a recording of light or other radiation on any medium on which an image is produced or from which an image by any means be produced, and which is not part of a film.[12] Whilst photographs are classified as artistic works, the subsistence of copyright does not depend on artistic merit.[12] The owner of the copyright in the photograph is the photographer – the person who creates it,[13] by default.[14] However, where a photograph is taken by an employee in the course of employment, the first owner of the copyright is the employer, unless there is an agreement to the contrary.[15]

    Copyright which subsists in a photograph protects not merely the photographer from direct copying of his/her work, but also from indirect copying to reproduce his/her work, where a substantial part of his/her work has been copied.

    Copyright in a photograph lasts for 70 years from the end of the year in which the photographer dies.[16] A consequence of this lengthy period of existence of the copyright is that many family photographs which have no market value, but significant emotional value, remain subject to copyright, even when the original photographer cannot be traced (a problem known as copyright orphan), has given up photography, or died. In the absence of a licence, it will be an infringement of copyright in the photographs to copy them.[17] When someone dies the rights will have transferred to someone else, perhaps through testamentary deposition (a will) or by inheritance. If there was no will, or if the photographer has not specified where the rights in the material should go, then the normal rules of inheritance will apply (although these rules are not specific to copyright and legal advice should be sought).[18] Scanning old family photographs, without permission, to a digital file for personal use is prima facie an infringement of copyright.

    Certain photographs may not be protected by copyright. Section 171(3) of the Copyright, Designs and Patents Act 1988 gives courts jurisdiction to refrain from enforcing the copyright which subsists in works on the grounds of public interest. For example, patent diagrams are held to be in the public domain, and are thus not subject to copyright.

    Infringement[edit]
    Infringement of the copyright which subsists in a photograph can be performed through copying the photograph. This is because the owner of the copyright in the photograph has the exclusive right to copy the photograph.[19] For there to be infringement of the copyright in a photograph, there must be copying of a substantial part of the photograph.[20] A photograph can also be a mechanism of infringement of the copyright which subsists in another work. For example, a photograph which copies a substantial part of an artistic work, such as a sculpture, painting or another photograph (without permission) would infringe the copyright which subsists in those works.

    However, the subject matter of a photograph is not necessarily subject to an independent copyright. For example, in the Creation Records case,[21][22] a photographer, attempting to create a photograph for an album cover, set up an elaborate and artificial scene. A photographer from a newspaper covertly photographed the scene and published it in the newspaper. The court held that the newspaper photographer did not infringe the official photographer’s copyright. Copyright did not subsist in the scene itself – it was too temporary to be a collage, and could not be categorised as any other form of artistic work.

    The protection of photographs in this manner has been criticised on two grounds.[23] Firstly, it is argued that photographs should not be protected as artistic works, but should instead be protected in a manner similar to that of sound recordings and films. In other words, copyright should not protect the subject matter of a photograph as a matter of course as a consequence of a photograph being taken.[24] It is argued that protection of photographs as artistic works is anomalous, in that photography is ultimately a medium of reproduction, rather than creation. As such, it is more similar to a film, or sound recording than a painting or sculpture. Some photographers share this view. For example, Michael Reichmann describes photography as an art of disclosure, as opposed to an art of inclusion.[25] Secondly, it is argued that the protection of photographs as artistic works leads to bizarre results.[23] Subject matter is protected irrespective of the artistic merit of a photograph. The subject matter of a photograph is protected even when it is not deserving of protection. For copyright to subsist in photographs as artistic works, the photographs must be original, since the English test for originality is based on skill, labour and judgment.[23] That said, it is possible that the threshold of originality is very low. Essentially, by this, Arnold is arguing that whilst the subject matter of some photographs may deserve protection, it is inappropriate for the law the presume that the subject matter of all photographs is deserving of protection.

    It is possible to say with a high degree of confidence that photographs of three-dimensional objects, including artistic works, will be treated by a court as themselves original artistic works, and as such, will be subject to copyright.[26] It is likely that a photograph (including a scan – digital scanning counts as photography for the purposes of the Copyright Designs and Patents Act 1988) of a two dimensional artistic work, such as another photograph or a painting will also be subject to copyright if a significant amount of skill, labour and judgment went into its creation.[27]

    Photography and privacy[edit]

    “No photographs” sticker. Designed for persons at conferences who do not want any digital likeness of them taken, including video, photography, audio, etc.
    A right to privacy exists in the UK law, as a consequence of the incorporation of the European Convention on Human Rights into domestic law through the Human Rights Act 1998. This can result in restrictions on the publication of photography.[28][29][30][31][32]

    Whether this right is caused by horizontal effect of the Human Rights Act 1998 or is judicially created is a matter of some controversy.[33] The right to privacy is protected by Article 8 of the convention. In the context of photography, it stands at odds to the Article 10 right of freedom of expression. As such, courts will consider the public interest in balancing the rights through the legal test of proportionality.[30]

    A very limited statutory right to privacy exists in the Copyright Designs and Patents Act 1988. This right is held, for example, by someone who hires a photographer to photograph their wedding. The commissioner,[34] irrespective of any copyright which he does or does not hold in the photograph[34] of a photograph which was commissioned for private and domestic purposes, where copyright subsists in the photograph, has the right not to have copies of the work issued to the public,[35] the work exhibited in public[36] or the work communicated to the public.[37] However, this right will not be infringed if the rightholder gives permission. It will not be infringed if the photograph is incidentally included in an artistic work, film, or broadcast.[38]

    United States[edit]
    Local, state, and national laws may exist pertaining to photographing or videotaping. Laws that are present may vary from one jurisdiction to the next, and may be stricter in some places and more lenient in others, so it is important to know the laws present in one’s location. Typical laws in the United States are as follows:

    Public property[edit]
    It is legal to photograph or videotape anything and anyone on any public property.[39]
    Photographing or videotaping a tourist attraction, whether publicly or privately owned, is generally considered legal, unless explicitly prohibited by a specific law and/or statute.
    Private property[edit]
    Photography may be prohibited or restricted within an area of property by the property owner.[39] At the same time, a property owner generally cannot restrict the photographing of the property by individuals who are not located within the bounds of the property.[39]
    Photography on private property that is generally open to the public (e.g., a shopping mall) is usually permitted unless explicitly prohibited by posted signs. Even if no such signs are posted, the property owner or agent can ask a person to stop photographing, and if the person refuses to do so, the owner or agent can ask the person to leave the property. In some jurisdictions, a person who refuses to leave can be arrested for criminal trespass, and many jurisdictions recognize the common-law right to use reasonable force to remove a trespasser; a person who forcibly resists a lawful removal may be liable for battery, assault, or both.[40]
    Entry onto other private property usually requires permission from the property owner.
    Some jurisdictions have laws regarding filming while in a hospital or health care facility. Where permitted, such filming may be useful in gathering evidence in cases of abuse, neglect, or malpractice.
    Privacy issues[edit]
    Further information: Privacy laws of the United States
    Photographing private property from within the public domain is legal, with the exception of an area that is generally regarded as private, such as a bedroom, bathroom, or hotel room.[39] In some states, there is no definition of “private,” in which case, there is a general expectation of privacy.[citation needed] Should the subjects not attempt to conceal their private affairs, their actions immediately become public to a photographer using an average lens or video camera.[citation needed]
    Many places have laws prohibiting photographing private areas under a person’s clothing without that person’s permission. This also applies to any filming of another within a public restroom or locker room. Some jurisdictions have completely banned the use of a camera phone within a restroom or locker room in order to prevent this. The United States enacted the Video Voyeurism Prevention Act of 2004 to punish those who intentionally capture an individual’s private areas without consent, when the person knew the subject had an expectation of privacy.[41] Additionally, state laws have been passed addressing the issue as well.[42]
    Commercial photography[edit]
    In certain locations, such as California State Parks, commercial photography requires a permit and sometimes proof of insurance.[43][44] In places such as the city of Hermosa Beach in California, commercial photography on both public property and private property is subject to permit regulations and possibly also insurance requirements.[45]
    At the Chesapeake and Ohio Canal National Historical Park, commercial photography requires a permit under certain circumstances.[46] For photography that involves the advertising of a commercial product or service, or photography that involves sets or props or models, a permit is required.[46] In addition, if the photography has aspects that may be disruptive to others, such as additional equipment or a significant number of personnel or the use of public areas for more than four hours, it is necessary to obtain a permit.[46] If a photographer or related personnel need to access an area during a time when the area is normally closed, or if access to a restricted area is involved, the photography requires a permit.[46] For commercial portrait photographers, there is a streamlined process for photography permits.[46] In the case of National Park system units, commercial filming and/or audio recording requires a permit and liability insurance.[47] Still photography that uses models or props for the purpose of commercial advertising requires a permit and proof of insurance.[47][48]
    If a photograph shows private property in such a manner that a viewer of the photograph can identify the owner of the property, the ASMP (American Society of Media Photographers, Inc.) recommends that a property release should be used if the photograph is to be used for advertising and/or commercial purposes.[49] According to the ASMP, a property release may be a requirement in such a situation.[49]
    Other issues[edit]
    Photographing accident scenes and law enforcement activities is usually legal.[39] At the same time, one must not hinder the operations of law enforcement, medical, emergency, or security personnel by filming.
    Any filming with the intent of doing unlawful harm against a subject may be a violation of the law in itself.
    Other countries[edit]
    Reactions to photography differ between societies, and even where restrictions on photography are not covered by statute, code, or judicial precedent, there may be resistance to the taking of photographs by individuals or groups. The breach of the social norms can result in opprobrium, coercion, danger, and violence, and as such should be noted and respected.

    Hungary[edit]
    From 15.03.2014. when the long-awaited Civil Code was published, the new law re-stated what had been normal practice, namely, that a person had the right to refuse being photographed. However, “implied consent” exists, which means if a photographer takes an image and the subject does not actively object, then it is legal.[50] An example of the media hysteria referred to is the Guardian article:[51]

    Sudan[edit]
    Travelers who wish to take any photographs must obtain a photography permit from the Government of Sudan, Ministry of Interior, Department of Aliens.[52]

    India[edit]
    Regulations apply to land-based photography for certain locations. A permit is required for aerial photography in India, which normally takes over a month to acquire.[53]

    Iceland[edit]
    Working as a photographer or calling oneself a photographer requires a master’s degree in photography or a similar degree from another industry-based school in Iceland.[citation needed]

    Spain[edit]
    Taking pictures of police officers in many circumstances is illegal according to a recent law passed by the current Popular Party government. The argument given is that of protecting the idendity and family of police officers who may find themselves harassed afterwards. A far more limited version of the law had been in effect for several decades when police work is related to terrorism (Basque radicals or Jihaddist activity for example). There has already been one action taken against a citizen photographing a police officer who she believed was acting irresponsibly.[54]

    Mexico[edit]
    This section may be confusing or unclear to readers. (March 2013)
    Mexican law is not different from the general laws in countries like the United States, however, it is possible that in some countries, unwritten cultural law may be the strongest. In Mexico there are stories about photographers being attacked by both authorities and citizens fearful of images of themselves being displayed. The typical example is to alienate children from the view of an individual with a camera for fear that the images are to prepare the abduction of the infant. Authorities may intimidate or prevent any holder of a camera if they come into close perimeters of Government buildings.

  3. Issued: 16th March 2005
    Last amended: 16th March 2005
    Exploring copyright issues in photography, registration advice and specific considerations that apply to photographers.
    Who owns the copyright on photographs?
    Under law, it is the photographer who will own copyright on any photos he/she has taken, with the following exceptions:
    If the photographer is an employee of the company the photos are taken for, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright.
    If there is an agreement that assigns copyright to another party.
    In all other cases, the photographer will retain the copyright, if the photographer has been paid for his work, the payment will be for the photographer’s time and typically an allocated number of prints. The copyright to the photos will remain with the photographer, and therefore any reproduction without permission would be an infringement of copyright.
    Examples:
    If Bill Smith asks Peter Jones the photographer to photograph his wedding. Peter Jones will normally provide a single copy of the prints as part of the fee, but any additional prints Bill or his family and friend want must be ordered via Peter as he is the copyright owner and controls who can copy his work.
    If Bill Smith engages the services of XYZ-Photos for the same job, and Peter is an employee of XYZ-Photo who instruct Peter to take the photos, XYZ-Photos will be the copyright owner and control how they are used.
    Copyright registration
    Why register?
    The purpose of registration is to ensure that you have proper, independently verifiable, evidence of the date and contnet your work. This ensures that if another party steals your photos you have solid evidence to prove your claim.
    Without registration it can be very difficult, and often impossible, to prove your ownership if another person claims the photo belong to them.
    Protect whole collections for a single fee
    It is possible to submit a great many photos within a single registration, and only pay a single registration fee.
    For advice on registering photographic works, please see our factsheet P-24: Registering photographic work.
    Using the work of others
    As with all copyright work, you should first obtain permission from the copyright owner before you use someone else’s work.You should also be prepared to pay a fee, as many photographers will charge you for using their work.
    Only the copyright owner, (or his/her authorised representative), can give permission, so you should contact the photographer, or his/her company, directly for consent. For images published on the Internet, it is typical to contact the webmaster of the site in the first instance, unless the site provides contact details for the owner of the images.
    The copyright owner has no obligation to allow you to use their work, and can refuse permission for any reason.
    Marking your work
    The two primary reasons for marking your work are to ensure that those accessing your images are clear that copyright exists and that they know who to contact to obtain permission.
    Contact information
    We often receive enquiries from individuals and organisations wishing to use specific photos, but who are unable to trace the owner. It seems that many images are marked as ‘copyright image do not reproduce without permission’, but that the photographer omitted to include their contact details. This is frustrating to the person wishing to use the image and also means that the photographer may miss out on reproduction fees and exposure.
    Copyright notices
    We do recommended that you mark your work with a copyright notice, as this makes it clear that copyright exists, and helps to deter infringement. Please see our fact sheet P-03: Using copyright notices for information on wording you notices.
    For traditional prints, it is customary to use a stamp to mark the copyright notice and the copyright owners contact details on the back of the print
    If you display your photos online, you may choose to use photo editing software to place a simple copyright notice across the image, (typically this will appear in the bottom corner). Ideally it should include the address of the web site so that it is clear where to go to find contact details.
    For electronic images, it is also possible to include the copyright/contact details in the file properties. Under Windows for example, right clicking on a image will allow you to bring up the properties dialogue where you may enter details about the file, (though this will only work with certain file types). More typically, your image software will provide a way to insert comments into the file; this is preferred as these are harder to remove.
    Watermarking may be worth considering if you have a lot of valuable images on your site.
    Model release forms
    An individual has certain rights to control the use of their image. The specific details will vary from one country to another depending on national legislation, although the general rule seems to be to protect a person against defamatory or offensive use of their image.
    If you intend to sell or distribute images that include people, then it is worth getting your subjects to sign a model release form as this will protect you against any comeback.
    A search on Google for ‘Model Release Forms’ should reveal a number of example documents that you can use.

  4. Photography and Copyright Law
    © COPYRIGHT – Part 1

    In part one of a multi part series on Photographer’s Copyright, I’ll be talking with Carolyn E. Wright of the Law Office of Carolyn E. Wright, LLC. She is a full-time attorney whose practice is aimed squarely at the needs of photographers. Carolyn understands the special issues that confront both professional and amateur photographers alike, and was the perfect person to talk with about Photographers, Copyright, and the Law. While her legal credentials are among the best in the business, Carolyn thinks it is important to keep ties with the photographic community. That’s why she maintains an active wildlife photography business at http://www.vividwildlife.com, and enjoys teaching, writing and speaking about photography. She is a regular leader of photography workshops, and is a moderator and columnist for http://www.Naturescapes.net. When you turn to Carolyn for legal help, you are literally turning to the person who wrote the book on photography law. “Photographer’s Legal Guide”.

    On the topic of copyright, it was an obvious choice for me to want to have Carolyn share some of her wisdom with my readers. Since many of the people who read my blog are in the photography business, avid amateur photographers, or fans of photography as an art form, it seemed like a good topic to cover. Copyright is often misunderstood, and I hope that the series of articles I’m writing will help clear things up for those of us who create photography, and for those that use it commercially, editorially, or otherwise.

    In part two of this series, I’ll be sharing some very valuable information from the ASMP, PACA, Copyright Alliance, and other photography and copyright related organizations.

    An interview with Carolyn E. Wright of photoattorney.com

    Photography and Copyright Law

    Q: The term “Copyright” is often misunderstood. Especially when it comes to art and photography. The first and most obvious question would therefore be; What is Copyright?

    In simple terms, copyright for photographers means owning property. With ownership, you get certain exclusive rights to that property. For photographic copyrights, the ownership rights include:

    (1) to reproduce the photograph;

    (2) to prepare derivative works based upon the photograph;

    (3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;

    (4) to display the photograph publicly;

    Found in the U.S. Copyright Act at 17 U.S.C. 106 (http://www.copyright.gov/title17/92chap1.html#106)

    Q: What is the difference between copyright and creative commons?

    Creative Commons is a type of licensing. Licensing means that you grant others some of the rights that you have to the photograph. For example, you may allow someone to reproduce your photo in the December issue of a magazine. You still own the copyright to the photograph, but you allow someone else to use a piece of it. Creative Commons provides different licensing packages without pay. The packages allow some flexibility with your licensing, such as whether you allow commercial use of your photo and whether you require certain attribution, such as your name or website, with the use.

    Q: Does a creative commons license mean that I can use the photograph any way I want, for free?

    If you offer licensing of your photo through Creative Commons, someone may use your photo for free but that person must follow the of the conditions of the license that you select. The Creative Commons license options include: “Attribution” (this license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); “Attribution-NonCommercial” (this license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms); and “Attribution-NonCommercial-NoDerivs” (this license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially).

    Q: Who owns the copyright in a photograph once it is taken?

    In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.

    Q: If I don’t register my copyright, do I still own the copyright to my photos?

    Yes. When a photo is not registered with the US Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or standard licensing fees plus profits derived from the infringement, if not too speculative. One source for standard license fees is a software program called Fotoquote.

    Q: Should only Americans register their copyright with the Library of Congress in the United States?

    No! All unpublished photos, regardless of the nationality of the photographer, are protected in the United States. Any photo that is protected by US copyright law can be registered, which includes works of foreign origin.

    If your photos are first published in the United States or in a country with which the US has a copyright treaty, they also are protected and may therefore be registered with the US Copyright Office. Also, if you are a citizen of or reside in a country that has a copyright treaty with the US, then you can register your photos with the US Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.

    Q: What is the Digital Millennium Copyright Act?

    The Digital Millennium Copyright Act (DMCA), enacted in 1998, implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference. It addresses many issues, one of which affects photographers directly. The DMCA states that while an Internet Service Provider (ISP) is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright infringement.

    Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this provision. If you find a website that is using one of your images without permission, contact the hosting ISP and report the infringement. My article here: http://www.naturescapes.net/docs/index.php/articles/314 tells you how to request that your image be take down from a website.

    The DMCA also provides for certain damages when your work is infringed. If the infringer has removed your copyright management information, such as your name, contact information, or copyright notice, from your work in an attempt to facilitate or conceal its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of “copyright management information” in certain circumstances. It states in pertinent part:

    No person shall, without the authority of the copyright owner or the law—(1) intentionally remove or alter any copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.

    The statutory award for each violation of Section 1202 ranges from $2,500 to $25,000. The DMCA is another important tool in the photographer’s legal toolkit.

    Q: If I am photographing a job for a client, does the client own the copyright or do I?

    See above regarding the “work-made-for-hire” discussion.

    Q: Do I need a model or property release to own the copyright in my photograph?

    Copyrights and rights of privacy for people are different rights. When photographers take photos of people, they must be careful to not invade their privacy. This happens when someone enters a person’s private domain in a manner that would be considered offensive to the average person. As a photographer, the act of going on someone’s land without permission would be trespassing and also may violate the person’s right of privacy. You don’t have to take a photo or publish an image photo for the action to be unlawful. Some courts have found that a photographer has violated privacy rights even when photographing someone in public. Instances would include cases where the photographers harass their subjects, use hidden cameras, or wait for a woman’s skirt to be blown at a fun house. It also is unlawful to view and photograph people inside of residences or other places where privacy is normally expected, even when the photographer is standing in public.

    After the photo is taken, however, the photographer should be concerned with the person’s right of publicity. You violate a person’s right of publicity when, without permission, you use a photo of a person for your own benefit. The “editorial” use of a photo is not considered a use of the person’s image for your own benefit. “Commercial” use is different because the use benefits the photographer, so you need the person’s consent to use their image. If you get a model release signed by the subject, you are free to use the image commercially, i.e., for advertising.

    If an image is used in a newsworthy item then that constitutes an editorial use. In such cases, a person’s rights are evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment, freedom of the press interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms, not limiting it to the dissemination of news in the sense of current events. They have extended it well beyond that to include all types of factual, educational and historical data, even including entertainment and amusement and other interesting phases of human activity in general.

    Commercial use of a photograph usually occurs when the picture of the person has been used purely for “advertising purposes.” While the photograph of a person may be used for something that is sold for profit, such as for use in a book or as a photographic print, selling the photo is not the test for a commercial usage. Using a picture of a person in advertising or for trade without consent may violate the person’s right of publicity, especially when it injures the economic interests of the person due to commercial exploitation. If someone looking at a photograph would think that the person in it is promoting or endorsing a product affiliated with the photograph, then the use is commercial. When the photo of a person is incorporated into a product such as a tee shirt, the use is commercial. At times, it is difficult to determine if a usage is considered commercial or editorial, so it is always safer to get the model release.

    In general, if property is visible and can be photographed from a public place, you don’t need a property release to use an image that depicts the property and you may use the photo in any manner. Copyright law provides an exclusion for photographing buildings located on property, but not for statues or other items that may have separate copyrights. There also are restrictions on some governmental property. These include federal seals and insignia as well as military or nuclear installations due to security concerns. If the statue or copyrighted item has minimal presence in your image, your photo may fall under the exclusion due to fair use. Otherwise, you must get permission to take an image and to use it for any purpose.

    Nevertheless, some companies have tried to prevent the use—both commercially and editorially—of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree on the 17 Mile Drive at Pebble Beach, CA, the Golden Gate Bridge, and the “Hollywood” sign. While these attempts have been unsuccessful, it can be expensive to litigate them

    Q: Do I need to put the © notice on my photos?

    You’ll often see a copyright “notice”—the familiar © or the word “copyright” with a date and name of the copyright owner—posted on creative works. A proper notice has three parts: the first part is the © (the letter “c” in a circle), the word “Copyright,” or its abbreviation, “Copr.” Some people use a “c” within parentheses like this: (c), but it has not been designated to be part of the official copyright notice. The second part notes the year when the work was first published. The third required part of a copyright notice is the name of the copyright owner. The final form looks like this: © 2011 Carolyn E. Wright. Including a copyright notice is no longer required for copyright protection, but it is a good idea to use it.

    When you use the copyright notice it may stop someone from stealing your photographs, either because it serves as a reminder that the work is protected or because the notice interferes with the use of the work when it is part of the photo. Also, it helps to post a copyright notice on your photos because the infringer then cannot say the use was innocent. Further, you may be eligible for DMCA damages if your copyright notice is removed to hide an infringement (see above). You may use the copyright notice without registering your work with the U.S. Copyright Office.

    Q: What is “Fair Use”?

    Fair use is the right to use copyrighted materials without the copyright owner’s permission. It was designed as an exception to the exclusive rights granted above, permitting limited and reasonable uses without permission as long as they do not prejudice the copyright owner’s rights or interfere with normal exploitation of the work. The classic example of fair use is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.

    Thus, fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But fair use has its limits, too.

    Specifically, Section 107 of the Copyright Act states that:

    the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

    17 USC Section 107. http://www.copyright.gov/title17/92chap1.html#107

    All four factors (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.

    The “purpose and character of the use” is considered one of the most important indicators of fair use. Courts determine whether the copyrighted work has been used to create a new work (often referred to as a “transformative use”) instead of simply copied and/or placed into another work.

    A court is more likely to find fair use when the “nature” of the copyrighted work used has been published, rather than unpublished. Copyright law recognizes the right of photographers to control the first public appearance of works.

    An unauthorized use will more likely be considered a fair use if a small amount or insubstantial portion of the entire work has been used, such as a short quote from a book. While such a “de minimis” use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.

    When the unauthorized use directly effects and competes with the copyright owner’s business or potential for income, a court will usually find that the use was not a fair use. This is true even when the use is not in an area of business directly competing with the photographer – such as selling sculptures based on a photo. What matters is that the photographer could have made money in that field.

    Q: What is public domain?

    When a work is not protected by copyright law, it is considered as being in the “public domain” and any one may use the work without permission.

    Q: What is a derivative work and who owns the copyright?

    A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other types of modifications. The work must be different enough from the original to be regarded as a new work—in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work.

    The person who creates the derivative owns the copyright to revision, annotation, or other type of modification only. The original copyright is still owned by the original creator.

    Q: Is copyright violation a crime?

    The Copyright Act includes elements of crimes related to copyright. http://www.copyright.gov/title17/92appg.html The government usually prosecutes only the most egregious cases, such as counterfeited goods.

    Q: What happens when a copyrighted photo is used without permission?

    You have several options when you find that your photo has been infringed.

    Option #1 – Do Nothing

    You always have the option of doing nothing. If the infringer is in a foreign country where infringements are rampant and difficult to enforce or is a small website with little traffic, you may decide that it’s not worth your time and effort to fight the infringement.

    Option # 2 – Request a Photo Credit
If the website would provide a marketing outlet for you, you may only want the infringer to give you proper credit. If so, write the infringer a letter officially giving her the right to use the image. Be sure to designate the parameters of that use, such as who, what, why, when and where – see my blog entry here for more information. Include the condition that the infringer post a photo credit with a copyright notice on or adjacent to the use. You may also require the infringer to add a link to your website. You may get subsequent work from the infringer or others.

    Option #3 – Prepare a DMCA Take-Down Notice
Purusant to the U.S. Digital Millennium Copyright Act (“DMCA”) enacted in 1998, the Internet Service Provider (“ISP”) that hosts a website is not liable for transmitting information that infringes a copyright only if the ISP removes the infringing materials from a user’s website after receiving proper notice of the violation. The notice must: be in writing, be signed by the copyright owner or the owner’s agent, identify the copyrighted work claimed to be infringed (or list of infringements from the same site) and identify the material that is infringing the work. Additionally, the notice must include the complaining party’s contact information, a statement that the complaint is made in “good faith,” and a statement, under penalty of perjury, that the information contained in the notification is accurate and that the complainer has the right to proceed (because he is the copyright owner or agent). Check my article at here to learn more about how to prepare a DMCA take-down notice. Even if you don’t reside in the U.S., you may use this great tool to stop an infringer whose ISP is in the U.S. from using your work.

    Option #4 – Prepare a Cease and Desist/Demand Letter Yourself
When you don’t want to alienate the infringer (the infringer is a potential client and/or appears to be an innocent infringer), you may want to contact the infringer to explain that the use is not authorized and either request payment of an appropriate license fee, a photo credit with a link to your website (as discussed above), or that the infringer cease use of the image. It’s best to do this in writing – a letter by surface mail seems to have more clout than email correspondence.

    Photographers sometimes send an infringer an invoice for three times their normal license fee in an attempt to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal right given by any court of law or statute. Instead, U.S. law states that you are entitled to actual or statutory damages for infringement as provided by 17 U.S.C. Chapter 5, specifically section 504. The damages that you can receive from infringement – especially if you timely register your photographs – sometimes can amount to a lot more than three times your normal license fee. So you may want to think 2x before you send the 3x letter.

    There are some risks in sending the letter yourself. First, the infringer may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may involve you in a legal action for which you may need legal counsel in a jurisdiction (court location) where you don’t want to litigate. Second, your demand for payment may be admissible against you if an infringement case is filed. If you demand too little, then it may limit your ultimate recovery. To avoid this possibility, include in your demand letter that “these discussions and offer to settle are an attempt to compromise this dispute.”

    Option #5 – Hire a Lawyer to Send a Demand Letter
When an attorney gets involved, the matter is escalated and tensions rise. While the infringer may be more defensive, the weight of your demand letter is dramatically increased if it comes from an attorney and the infringer generally takes the matter more seriously. Some attorneys charge a flat fee to send a letter; others may charge a “contingency fee” which is based on the percentage of recovery. Or the fee may be a combination of both.http://www.unc.edu/~unclng/public-d.htm may be helpful in determining the applicable duration of copyrights for works established at various times.

    Q: If you take a photo of a work of art that you did not create, who owns the copyright?

    As the creator of art, the copyright owner has the exclusive rights in the art such as for reproduction. Courts have disagreed as to whether taking photos of copyrighted works is a violation. Regardless, the law prevents you from having copyright ownership of anything that is an infringement.

    Q: If an illustration of one of my photographs is made and used commercially or editorially, is it an infringement of my copyright?

    Yes, if it is deemed to be a derivative work and the illustrator has copied your copyrightable elements.

    Q: Someone is using my photos without paying me or asking permission. What do I do now?

    See the options identified above.

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