What Photographers Should Know about Copyright
If you’re a photographer, there are a few key things to know about copyright law and the protections available to you.
First, copyright protects original works of authorship, including original photographs. A work is original if it is independently created and is sufficiently creative. Creativity in photography can be found in a variety of ways and reflect the photographer’s artistic choices like the angle and position of subject(s) in the photograph, lighting, and timing. As a copyright owner, you have the right to make, sell or otherwise distribute copies, adapt the work, and publicly display your work.
Second, you should know that copyright protection exists from the moment an original work is “fixed” in a tangible medium. For photographers, for example, fixation occurs when you take a picture. You don’t need to do anything else at all for your work to be protected by copyright.
Registering Your Work
Although your work is protected by copyright from the moment it is fixed, it is essential that you register it with the United States copyright office to make a public record of your ownership, as well as for additional legal benefits like the ability to bring an infringement claim against unauthorized use in the U.S. and to seek certain types of monetary remedies including statutory damages and attorney fees. Applying for registration with the U.S. Copyright Office requires an application, a filing fee, and a copy of the work (which the Office calls a “deposit”). Our office can assist you with this process.
Depending on whether your work has been published, there are several different online application options. For copyright purposes, a photograph is published when copies of that photograph are distributed to the public by selling, renting, leasing, lending or otherwise transferring ownership of the copies. A photograph is also published when copies of that photograph are offered to a group of people for purposes of further distribution or public display. The public display of a photograph, in and of itself, does not constitute publication.
To register one photograph, published or unpublished, use a standard application. Other options:
- For unpublished works, group registration for unpublished photographs allows for registering up to 750 unpublished photographs all by the same author and the author is the claimant.
- For published works, group registration for published photographs allows for registering up to 750 published photographs all published within the same year and by the same author and the author is the claimant.
- Group Registration of Contributions to Periodicals for photographs first published as a contribution to a periodical, such as newspaper, magazine, or journal.
Works Made for Hire
Generally, the author and initial copyright owner of a photograph is the person who “shoots” or “takes” the photo. One limited exception to this rule is when a photograph is created as a “work made for hire.” A work made for hire occurs when a photographer creates works as part of their scope of employment (like at a publication), or when there is an express agreement between a photographer and commissioning party to create a work for a specific, statute-identified purpose. If the photographs were created as “works made for hire,” the employer or commissioning party is considered the author and owns the copyright to the images rather than the photographer. The images may still be registered as a group if all of the photographs were created for the same employer, the employer is named as the author of each photograph, and the photographs are identified in the application as “works made for hire.”
If Your Work Is Used Unlawfully
It is your right to pursue legal action if your work is used unlawfully without your permission and not under a statutory exception or limitation like fair use. However, if a U.S. entity uses your work without authorization, you do need to register it with the Copyright Office before bringing an infringement lawsuit in federal court. Also, if you take someone to court for using your work without your permission and you want to try to have your attorneys’ fees covered or pursue certain other types of compensation (called statutory damages), the timing of your registration matters. Generally, copyright lawsuits are decided in federal court.
