Copyright

Photographs are under copyright protection the moment they are created and fixed in a tangible form. The copyright laws in the United States give authors certain exclusive rights to their original works for a limited time.

Legal precedent (Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 111 S.Ct. 1282, 1287-88 (1991)) gives photographers (and others) the following rights:

  1. the right to reproduce work in copies (reproductive right);

  2. the right to produce derivative works based on the copyrighted works (adaptive right);

  3. the right to distribute copies of the work (distribute right);

  4. the right to display the copyrighted work publicly (display right);

  5. the right to claim authorship of the work and to prevent the use of his or her name as the author of the work she or she did not create (attribution right); and

  6. the right to prevent the use of his or her name as the author of a distortion of the work and to prevent destruction of the work (integrity right).

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright statute defines a "work made for hire" as:

  1. a work prepared by an employee within the scope of his or her employment; or

  2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Like formal registration, the use of a copyright notice (©) is no longer required under U.S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant for older works.

According to the U.S. Copyright Office, the 1976 Copyright Act required notice but when the United States adhered to the Berne Convention (March 1, 1989) the requirement was eliminated. Nevertheless, use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the work to which a defendant in a copyright infringement suit had access, then "no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright code." Innocent infringement occurs when the infringer did not realize that the work was protected.

Photographers should always place a notice on unpublished copies that leave their control.

Copyright notice should contain three elements, including

  • the copyright symbol (©), the word "copyright" or the abbreviation "copr";

  • the year of first publication of work; and

  • the name of the owner of the copyright.

According to the Copyright Office, a work that is created (fixed in tangible form for the first time) on or after Jan. 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Any or all of the copyright owner's exclusive rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.

Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.

Transfers of copyright are normally made by contract. The Copyright Office does not have any forms for such transfers. The law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although making a record of a transfer is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.

For information on recordation of transfers and other documents related to copyright, request Circular 12, "Recordation of Transfers and Other Documents."

There is no such thing as an "international copyright" that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions. For a list of countries which maintain copyright relations with the United States, request Circular 38a.

A collection of published or unpublished photographs may be considered for registration as a unit on a single application Form VA with a non-refundable filing fee of $45 and a nonreturnable deposit of copies of the work when certain conditions are met.

Two or more unpublished photographs may be registered as a collection if:

  1. the elements are assembled in an orderly form;

  2. the combined elements bear a single title identifying the collection as a whole;

  3. the copyright claimant in all of the elements, and in the collection as a whole, is the same; and

  4. all of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each of the elements.

Registration of an unpublished collection of photographs extends to each copyrightable element in the collection. There is no limit to the number of photographs that may be included in an unpublished collection. A single registration may also be made for all the copyrightable elements in a single unit of publication if the copyright claimant is the same for all elements. See Circular 40a, Deposit Requirements for Registration of Claims to Copyright in Visual Arts Material, for further details.

When a work is registered as a collection, only the collective title will appear in our catalogs and indexes. To have the individual titles appear in our records: separate registrations must be made for each work; or, after the certificate of registration for the collection has been received, a supplementary registration may be filed (Form CA) to specify the titles of the collection.

From the U.S. Copyright Office, Library of Congress • FL 107 • 6/14/93