A further series of posts from the old blog have been resurrected. The four-part series on Copyright for Photographers has been loaded into this blog under the original posting dates of May and June 2009. Simply click the COPYRIGHT tag in the tag cloud on right column of this page to get quick access, or use the calendar to search.
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.