Is Photography Protected by Copyright Law? - Drishti Law

This blog is designed to inform photography enthusiasts about US copyright law and its applications in photographic work. If you’re a travel photographer, wedding photographer, fashion photographer, nature photographer, or any other professional photographer, you should understand copyright laws, protection, and the benefits of copyright registration.

Copyright Law: Understanding Your Rights as a Photographer

As highlighted in a previous post, copyright protection is for original works.

Copyrights are protected under the copyright act—title 17 of the US Code. Section 101 protects “original works of artistry,” which can be fixed on a tangible medium. Sections 102(5) of the Act cover pictorial, graphic, and sculptural works. They refer to “picture-based graphics and sculptures.” In this scenario, a tangible medium could be a digital drive, film reel, or photograph copy.

Copyright holders on images are awarded a bundle of exclusive rights around the copyrightable elements of a photograph. The photographer’s creative, original elements or artistic choices. These exclusive rights include the following:

  1. Reproduction of the photograph/s
  2. Derivative work based on the original photograph
  3. Distribute copies of the images to the public
  4. Public performance of the copyrighted photographs
  5. Publicly displaying the photographs

The creative elements of an image are the artistic choices the photographer makes around the subject matter, including positioning; placement; lighting; timing; and much more. The photographs must have sufficient creative elements to be protected by copyright registration.

Although registration at the US Copyright Office is not required, it is recommended. Copyright registration allows you to have the legal right to sue in federal court, where you can collect damages per infringement, statutory damages, and actual damages. With the increased use of digital tools in the industry, photographers must ensure their works are protected through registration.

Photography and Copyright Infringement

Copyright Infringement Case Example: Patrick Cariou v Richard Prince

Copyright infringement occurs when a party violates any of the exclusive rights afforded to a copyright owner. US Copyright law recognizes two types of copyright infringement claims: direct and indirect/vicarious. Photographic copyright violations are common, and understanding your rights is essential to effective copyright enforcement.

To prove direct copyright infringement for photographs, a plaintiff must have ownership of a valid copyright, and the original elements must be substantially similar in the copied image. To prove vicarious copyright infringement, the defendant must have had access to the photographs, and the copied work shares creative elements substantially similar to the original photographs.

A Copyright infringement lawsuit can lead to recovering lost profits, statutory damages, special damages, and more. But not everybody has six figures to run to federal court. This is when a copyright holder should turn to the Copyright Claims Board (CCB). Like a small claims court, the process is more streamlined and less financially burdening than federal copyright litigation.

The Digital millennium copyright act (DMCA) was passed by congress in 1998, amending part of the US Copyright act. The law encouraged artists like photographers to create and engage in the digital space. Additionally, it finally provided a somewhat seamless and cheap process for copyright enforcement on web platforms. More information on DMCA takedowns and its process can be found in a previous blog.

Copyright enforcement is not complete without cease & desist letters and usually should be the first step alongside a DMCA takedown request. Photographers should work with an Intellectual Property attorney to protect their original photographs and their creative elements to ensure comprehensive copyright protection. Copyright protection begins with publication and is enhanced with registration, but any other commercial nature of the use must be protected through express agreement in a written contract.

Ideally, photographers will apply for copyright registration before publication.

Who is the Copyright Owner?

The copyright owner is initially the author, the person who “takes” the photograph. Unless the photographer took the photographs as part of a “work made for hire” or is a joint work.

Is the Photograph a Work Made for Hire?

A work made for hire is usually when an individual or business hires a photographer and provides substantial input to create the final work. A work made for hire agreement includes a non-exclusive license to the final product. In litigation, a work made for hire analysis is done on a case-by-case basis. It usually involves a multifactor analysis where the exclusive right to the final product is determined through intensive deliberation in copyright litigation.

Joint Authorship and Copyright Ownership in Photographs

Joint works are works prepared by two or more authors. These authors intended for their contribution to be indivisible and interdependent. The default rule for collaborative work is that the creators each have an equal share of all its exclusive rights—the rights in reproduction, distribution, creation, and public performance.

For photography works, the nature of the joint authors’ contribution and intention to co-author will determine if two or more photographers are joint authors of a work. The rights in photography works can be transferred exclusively or non-exclusively.

Are the Rights in work Being Transferred Exclusively or Non-Exclusively?

Photographers have an obligation to understand a licensing agreement’s exclusivity provisions. Licenses are usually exclusive in that a licensed party will be the exclusive owner if they have the right to use a photo for other purposes. License agreements may contain nonexclusive provisions so that copyright owners may license this same property to others or may use that right themselves.

Does copyright still protect a photo if you edit it?

When we edit pictures that are original works for commercial gain, the Copyright protections on the original still apply. If the editing is not transformative and utilizes substantially similar original elements in the edited work, it would still be considered copyright infringement.

Photography and Fair Use

Fair use is a defense against copyright infringement. US copyright law provides several examples of use eligible for fair-use exceptions, including criticism, commentary, or educational use. Fair use is determined by analyzing four factors:

  1. The purpose and character of the use
  2. The nature of the copyrighted work
  3. The amount and substantiality of the original creative elements used about the photograph/s as a whole
  4. The market harm caused by the copying

Photographers Can Register Their Photographs in Groups at the US Copyright Office

A copy of your work must be submitted to a copyright office. The online application process depends on the type of photographic work. Photographers can submit individual photographs or use the group registration offered for both published photographs and unpublished photographs. This allows photographers to register multiple photographs in one go.

A photographer’s images will be considered published if copies have been distributed to the public or offered for public display. Although, the public display alone will not constitute publication. The process for group registration is outlined in further detail on the US Copyright Office’s website.

How long are copyrighted photographs protected?

The duration of copyright protection varies and depends on multiple factors, but generally, it lasts 70 years past the author’s death. For joint authors, it is determined by the life of the surviving author plus an additional 70 years. A work made for hire lasts 95 years from publication or 120 years from creation, whichever is shorter.