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• Disclaimer
• Legal
• First and for most, this tutorial is simply to help explain a little bit about copyright law.  By no means is this legal advice.  If you need legal advice, seek a lawyer, there’s probably one in your area who specializes in copyright law.
• Country
• This tutorial is written in regards to the United State’s copyright law.  I will touch on international copyright, but it is extremely complicated, again, if you need legal advice, seek a lawyer.
• Accuracy
• If you have ever taken a law class then you know, for every law there’s a precedent, then there’s the appeal, and then there’s the exception, then there’s the exception to the precedent, then there’s the amended law…. and it goes on.  Copyright law is no different.  Being that it is so complex, this article my not be 100% accurate (for all we know, the courts maybe ruling on something right now and the world of copyright law might change overnight).
• Intro
• I’m working on my Bachelor of Music Business at Full Sail University; I have an Associates of Science degree in Show Production and Touring. While working on my bachelor’s degree I’ve taken a Copyright Law Class.  The class was incredibly interesting, largely part to my professor who made it interesting.  This article is probably pretty dry, as I’m trying to explain the laws, and I’m not the caliber of my professor, so bare with me.
• Brief history
• Current intellectual property (IP) law is based on two major documents, the Statute of Anne (1710) and the United States Constitution (U.S.C.) (1787).
• U.S.C. Article 1, §8 –

§       “The Congress shall have the power to…promote the progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

o      United States IP law has gone through several variations sense 1787, with the most recent being the Digital Millennium Copyright Act (also referred to as the DMCA), which was enacted in 2000.

o      The purpose of IP law is to act as an incentive to create works of art, invention and other creative ideas that help society progress.  If I know that once I create the everlasting light bulb some guy will reverse engineer it and I won’t make any money, then I’m certainly not inclined to create the everlasting light bulb.

• What is copyright/intellectual property?
• Intellectual Property covers five basic areas which are:
• Copyright – Protects artistic creations (photography)
• Trademarks – Protects business logos, marks and slogans (McDonald’s golden double arch is the worlds most recognizable symbol, can we say ‘ca-ching?’)
• Patents – Protects inventions (the CCD chip in your dSLR has a patent on it)
• Trade Secrets – secrets kept by businesses (the recipe for Coca-Cola, again, can I get a ‘ca-ching!’)
• Right of Publicity – A person’s right to their name, likeness, image and persona (model release? What?)
• Copyright
• How is copyright Regulated? – These are the basic set of laws that US courts look to when ruling on copyright law
• Library of Congress/US Copyright Office
• Federal Statutes (such as the DMCA)
• Other Federal Court Cases
• The Five Rights – You get five basic rights (it’s the right part in copyright).  These rights are exclusive meaning that you, as the copyright holder, are the only person who can exercise them (unless you release your rights to someone else, but we’ll get into that)
• You have the exclusive right to…
• …Reproduce the work
• …Distribute the work
• …To make derivates of the work
• …To display the work
• …To perform the work
• Under copyright there are several different types.  This includes, but is not limited to, musical works, literary works, pantomimes (yes, the United States Government recognizes pantomimes under copyright) and Pictorial, Graphic and Sculptural works.  Photographs fall under that last one, pictorial, graphic and sculptural works.  The cool thing about that is it is the only category of copyright to receive moral rights.
• During the late 80’s and early 90’s the Berne Convention Implementation Act was passed.  The purpose was to change U.S. IP law so that we could join the Berne Convention, which is a treaty with over a 160 countries are signed to.  One of the things this act changes was giving moral rights to visual works.  This changed three things:
• We now have the right to name attribution (our name is forever attached to the image)
• We now have the right to protect the integrity of the work
• Basically what this does for us is it stops someone from taking your work and changing it, even they still give you credit for it.
• And, we no longer have to attach copyright notice to an image, more on that later….
• Who has copyright?
• You do.  You probably have many, more then you know, in fact, the first time you technically achieved the status of copyright holder was probably before preschool. There are two requirements of copyright are simple: the work is original to the creator and is fixed to a tangible medium.
• So let’s define original.  Let’s say that you write a book and leave it in your desk drawer.  Now I get bored one day and write a book, which happens to be the same exact story as your book (hey, intelligent minds think alike, right?), is my work original?  According to the US Government it is.  Sense I never had access to the work, and then when I wrote it, it was new to me, therefore original.
• What about tangible medium? Well the actual law is pretty clear about this, as it states: “An original work of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”  (17 U.S.C. § 102(a)).  So this includes just about anything your image may ever touch (film, flash memory, HDD and print).
• So that picture you drew for mom when you were in preschool that still resides on your mother fridge, full copyright protection, sort of…
• Where’s the fine print?
• Well you already read it.  Check back on the five rights you receive, notice nothing says you have the right to take someone who has infringed on you to court?  Yeah, you don’t have that right, yet.
• Sinse IP law finds itself under federal jurisdiction, which means any legal action goes straight to a federal court.  Being as busy as they are, they fixed in a prerequisite in order to be heard: registration.
• In order to have a work registered you have to fill out a form and pay a fee (hey, this is the federal government, what did you expect?) and send a copy of the work into the United States Copyright Office.  A copy can be the image in print form, on CD or DVD as well any other electronic form (heck, you could send in a HDD, but that would get awfully expensive).  The fee is $45 by mail and discounted if you do it online.  Check the link section for copies of the forms and electronic registration.
• How long your registration lasts depends on if you did it as an individual or as a corporation.  As an individual you get your lifetime plus 70 years (used to be 50 years, but then the good ol’ boys at Disney realized that their copyright on Mickey Mouse was going to run out and they effectively lobbied to get it extended).  If you did the work as a corporation, the registration lasts for 120 years from the date of creation, as long as it’s unpublished, if it is published then registration lasts for only 95 years from the date of publication (definition of published: when it is distributed to the public for sale, license, rental, lease or in the case libraries, lending).
• How can I stop someone who has infringed upon me?
• I was once told by a very wise man that the only people who benefit from litigation are the lawyers.  Taking copyright infringement to court (remember, it’s federal court) is not only costly, but extremely time consuming.  So before it’s time to take that jerk to the judge, let’s figure a few things out and let’s try some other, much less expensive, methods.
• First things first, did they actually infringe on you?  This may seem cut and dry, but this is law, so nothing is ever that simple.  Lets talk about Fair Use.
• Fair Use allows the public to us copyrighted work for limited purposes, without seeking from the copyright owner.  The First Amendment of the U.S.C protects this.  A few examples of this are commentary, criticism, illustration, news, teaching, research, scholarship, parody and governmental/judicial proceedings.  When the court is trying to decide if the work has been infringed on they are going to factor in these four questions:
• What is the purpose and character of the use (commercial or non-profit)?
• What is the nature of the copyrighted work?
• Is the work published? Unpublished? Fiction? Non-fiction?
• What amount and substantiality was taken in relation to the work as a whole?
• What is the effect of the use on the marketplace or the works value?
• So you’re surfing the web and you find your image (in its entirety, which you sell on DPC Prints) is being used on a website to promote a business, obviously this is an infringement.  So now its time to call your lawyer, don your battle armor and prepare for legal battle, right?  Wrong (unless you enjoy flushing money down the toilet).  Most people don’t realize they are infringing, or understand how big of a deal it is, and it might just be a lack of education and poor judgment than malicious intent.  Personally my first action would be to call the business and ask for a manger.  Remember, this may be a mistake, so give them the benefit of the doubt, you never know, they might be ready to send you a check and want to see more of your portfolio.
• Nope, manager doesn’t see it your way.  In fact he’s not even going to talk to you about it, and two weeks later, sure enough, there’s the image, still on the webpage.  Now we can call our lawyer and prepare for battle, right? Well not just yet, some people just need something a little bit more official to get them to stop, so now we write a cease and desist letter.
• Cease and desist letters are tricky.  You have to answer all the questions for the reader and leave nothing to assumption.   You must include the fallowing:
• What work was infringed on
• How, or in what form, was it used
• Where it was infringe on (geographically)
• Here is a fictitious cease and desist I wrote for class (and got an A on, woot woot!).  Feel free to copy it and change it to suit your needs.
• Side note – remember, you don’t have to tell them whether the work is registered or not.  If it isn’t, leave that to them to figure out, if they assume that it is then that’s all the more power to you.
• So the cease and desist doesn’t work.  These people really like your work, and aren’t about to give it up.  Before we man battle stations lets ask ourselves some questions.
•  Do I have the money for a lawyer?  (In case you are wondering, you’re1 looking at $150 per hour…on the low end)
• Do I have the time for litigation?  This isn’t something you are going to take up on a Sunday afternoon; you will probably have to stop all work for a while…
• Can you take the risk?  This is the United States, no matter how right you think you are, you don’t decide the verdict, the jury does.  And if they decide that it wasn’t infringement, the other party might just decide to counter sue for damages and court costs, and they might win.
• How far are you willing to go?  Assume they won’t back down, that they were given poor advance and told to appeal until you give in, are you ready to take this to the Supreme Court?  Copyright cases have been heard there in the past.
• Unfortunately it might just be time to cut your losses, this happens more often than not.  The chances of it getting to this point are vary slim, but if it does don’t forget you can always rant on DPC about it and then forget it.
• “No Chris, my image is being used in a multi-million dollar ad campaign for the biggest whosa-ma-whatsit company in the world.” – There’s two things to do in this situation:
• Call a lawyer.
• Share your glorious millions with me after you win (but if you loose I wont share your debt).

In closing:  Well, there it is, a brief description on copyright and intellectual property law.  Remember, photography isn’t about the credit, about the money, or about sticking it to someone who is wrong.  I think the reason why a lot of us originally got into photography is the awesome power of being moved by something as short as 1/500^th of a second.  Don’t ever forget that, and don’t ever let someone take that away from you.

A huge thank-you to my professor of Copyright Law.  Not only did he teach the class but also he made it incredibly entertaining and fun to learn about, which is no small feat.  He also helped me write this article, which was well beyond his teaching duties.  Thanks Mike.

And one last thing, if you have a question about a specific situation, feel free to NOT email me.  Call a lawyer.  If you have a question or a comment on this tutorial (or find an error), feel free to private message me.

Links:

http://www.ilrg.com/ - Tons of legal forms and contracts that are available to cut and paste for free

http://www.loc.gov/ - United States Library of Congress

http://www.copyright.gov/ - United States copyright site

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