There are a few oddities in copyright law that should be mentioned:

1) If a photographer requests a third party (such as a photo lab) to edit an image of theirs, the new image copyright is held by the party doing the editing.. The new, edited image is referred to as a derivative work and as such is the property of the party who created it.

2) Fair Use – Fair use is often the justification for using an image without the permission of the copyright owner. Many cases that have come to court have sought to claim “Fair Use” as an argument for the defense.

Fair Use is a protection afforded to publications, educators and other users who may exhibit a work under these four guidelines: A) Purpose or character of use – Non-profit educational use such as criticism, comment, news or research. B) Nature of the copyright protected work – How original is it? C)Amount of use – Was only a small and unidentifiable portion of the work used? D) Effect of use on the market – did the use prevent or hamper the copyright holder’s ability to achieve maximum marketability?

3) Pending is the legal recognition of Orphan Works. Orphan Works are those of obvious third party origin (a studio portrait, an original oil painting) but there is no original creator that can be located. Proving that every effort to locate the copyright holder has failed is the problem at present. Again, it comes down to defining a reasonable search.

4) Innocent Infringement is another concept gaining legal ground but it is difficult to prove. Innocent Infringement assumes that the person or business creating a copy of a work has no personal knowledge of the rights protection or reason to believe the work would be protected.

Though untried as a defense, Innocent Infringement is seen as a possible argument for a photo lab, photocopy stores and small-scale video duplicators that accept digital images. A customer who scans or copies an image outside the control of the photo lab and then submits that copy for printing is then liable provided the photo lab offers warnings against copyright infringement.

Photographer, Protect Yourself

Another aspect of copyright that is a source of confusion – just what does it take to protect my creative rights?

For years there has been an assumption that simply marking your work with a copyright symbol was enough, or perhaps putting your business name on it covered you. Sorry, but that’s not quite right.

Yes indeed, a photographer does own the rights to their own work from the moment of creation. However saying you own something is one thing, proving it in court is another.

In general, marking your work should warn another party that you regard the work as your property. But just like posting a “No Trespassing” sign doesn’t mean you can shoot somebody cutting through your yard, marking your work is pretty much toothless unless it is also registered.

There is an assumed 90 day grace period of protection from the moment the work is created. The work must be in registration process on the 90th day for protection to be valid from day one.

Smart photographers will submit every image they take every 90 days on one CD or DVD for a $45.00 copyright registration fee.

Timing of copyright registration is important. For an infringement action to be taken, the image in question must be registered BEFORE the infraction happened. A photographer cannot find that there has been an infraction and then file for copyright on the work in order to prosecute.

So, photographers protect your work. Physically mark the work and embed metadata into the image files. There are programs available that offer assistance with marking files. Register your images for copyright and make it a regular practice. Search the web for your metadata (There are paid service that do this).

Google your name or use the image search and descriptive words of your images.

As a photo lab operator I have to say that we try very hard to make sure that we only print images without copyright infringement issues. But unless the photographer marks the image itself with a watermark or imbeds copyright information in the metadata how would we ever know?

A reasonable person can say “It looks like a professional image”. Tell that to the thousands of Moms With Cameras who now shoot their own kid’s senior pictures and the neighbor kid’s too. Sorry, but who could tell the difference just by looking?

Oh, and here’s my favorite situation: The wedding photographer who gives the happy couple a CD of images to look through and order from. I’m very sorry Mr. or Ms. Photographer, the newlyweds are gonna go out and order prints on their own no matter what the label on the CD says. How? They place the order online so that the lab never sees the copyright warning on the disk.

You know what a lab does when they get such an order? They look at the metadata. No copyright notice in the metadata makes the lab wonder, but they have no leg to stand on when challenging the person who placed the order.

Copyright isn’t a cut and dried topic as we can all see. It takes all parts of an industry working together in order to protect intellectual property. There may not be a lot of grey area in the law, but there sure is a lot of it in actual practice. Help remove some of the grey by doing your part.