Heather Elder Represents
Reps Journal

Drop Everything and Read This Now, Copyright, Part I

This insight was originally published on May 26, 2015

A few weeks ago, I was a panelist at an APA event titled, The Estimating Challenge.  In addition to addressing questions about estimating, the panel also addressed questions about copyright.  It was such a helpful part of the evening and the information shared was relevant and so very important.  I learned so much myself, that afterwards, I asked the lawyer who answered the questions, Linda Joy Kattwinkel of Owen, Wickersham & Erickson, P.C., if she would be open to answering some questions for our blog.  She did not hesitate and the information she shares is invaluable.  These next two posts are a must read for anyone in the photo industry and Linda’s contact is a must have in any address book.

To understand how fortunate we are to have Linda share her insights with us, I have included her bio.

Linda Joy Kattwinkel is an artist (painter) and a lawyer for artists with the firm of Owen, Wickersham & Erickson, PC in San Francisco. She was an illustrator and graphic artist before she became an attorney. She helps her clients with licensing and contracts, and has successfully prosecuted and defended many infringement claims on behalf of photographers. Some of her local photographer clients include Jim Marshall’s estate, Jim Erickson, Steven Sommerstein, Charles O’Rear, Max Fallon, Dennis Anderson, Caren Alpert, and Elena Kulikova. Other prominent clients in the visual arts include Craig Frazier, Michael Schwab, Howry Design, and Hello Kitty.

Ms. Kattwinkel is the author of Legalities, an online column on legal issues for artists and designers for AIGA|SF,  http://www.owe.com/resources/legalities/, and various published articles. She can be reached at ljk@owe.com.

1) What exactly is a copyright?
Copyright is a legal system that allows people who make creative works to control how those works are used by others; in other words, copyright protects people’s ability to earn a livelihood through their creative efforts. When you have the right to control copying, you can charge a fee to assign or license use by others.

“work” means any tangible creative expression, for example, literary works (books, articles), visual works, including photography, audio-visual works (e.g., movies, video games), software, musical compositions and recordings. Performances, such as plays, music and dance concerts, are also protected if they are recorded.

“Author” means anyone that creates such works, not just writers, but also visual artists, photographers, musicians, cinematographers, choreographers, etc. Some works will have more than one author. For example, a videographer will be the author of the video footage, but a choreographer will be the copyright author of the performance shown in the video. A photographer will be author of her raw image file, but the retoucher will be the author of the retouching work.

Copyright gives authors the right to control how their work is copied. “Copy” in the law means not only mechanical reproduction (e.g., digital copies, scanning, photocopying) but also recreating a work by hand and adapting the work to different media (e.g., sculptures copied from photographs, movies made from novels).

2) What are some important limitations to copyright?
Copyright protects only the creative expression of a work, not the general idea or concept, nor factual information contained in the work.
 If someone likes the way you shot a person’s silhouette against a sunset, for example, they can take a similar shot of a different person and a different sunset without infringing your copyright.

Copyright protects only against actual copying. If another photographer takes a shot similar to yours coincidentally, without knowing about your photo, there is no infringement

Under the fair use doctrine, some copying will be excused. The analysis is complicated, but generally, fair use encompasses criticism, educational uses, and transformative uses (when the meaning and purpose of the copyist is very different from the original author’s). A typical example is when a small part of your photo is used in a collage of many different images. Another aspect of fair use is parody; but the parody has to be directly mocking the original work. For example, the Naked Gun 33-1/2 movie poster that mimicked Annie Leibovitz’s Vanity Fair cover a pregnant Demi Moore by showing a pregnant Leslie Neilson in the same pose was a fair use parody.

3) What protections does it offer the photographer when the image is copyrighted?
First, let’s clarify terminology. Legally, your photos are “copyrighted,” meaning you own a copyright in them, as soon as you make the photograph. “Registration” is a separate but related concept. Under our U.S. copyright system, you need to have a copyright registration in order to have full legal rights to enforce your copyright. In most other countries, there is no registration requirement.

You get a copyright registration by filling out an application and sending it to the U.S. Copyright Office with a fee and copies of the photograph(s) you are registering. See http://www.copyright.gov.

Registration is required before you can sue an infringer in court. More importantly, if you register your copyright before an infringement happens, you get extra remedies: the option to seek statutory damages, which can be more than the infringer’s profits or your lost profits, and can go up to $150,000 for willful infringement, and you can get your attorneys’ fees paid by the losing infringer. If you wait until after an infringement happens, you don’t get those extra remedies.

(Note: there is one exception to this early registration requirement: if you are registering published photos, these extra protections will be retroactive to within 3 months from the date the photos were published. This 3-month grace period is meant to protect authors whose work may be immediately copied upon publication.)

4) If someone uses an image of a photographer’s and it is NOT registered, how does that differ than if it were registered?
You will not be able to sue at all until you get a registration. Even then, you won’t be able to get statutory damages or your attorneys’ fees. Of course, most photographers do not want to file a lawsuit. But the extra remedies for early registration give you powerful bargaining power when you need to enforce your rights.

If you find out that your photo has been copied without your permission (e.g., someone takes it from your online portfolio and reposts it on their site, or a client reuses the photo outside the scope of your license), typically you (or your attorney) will send a notice to the infringer demanding that they stop the infringement and pay you a fee. The first thing the infringer (or his attorney) will want to know is whether you have a registration. If the infringer knows you have a registration, he knows he is potentially liable for not just a large statutory damages award, but also he may have to pay your attorneys’ fees. And, he will think you are more likely to sue him because you can probably find an attorney who will take the case on contingency, knowing the attorneys’ fees will probably be awarded at the end of the case.

If you don’t have a registration, the infringer may assume that you don’t have the resources to sue him, and then he will feel safer ignoring your claim or settling for much less.

5) Can a photographer register copyright in more than one image at a time?
Yes. You can register a group of photos, so long as all the photos in the group are published; or all the photos in the group are unpublished. Fees range from $35 to $65, depending on how you decide to register.

6)  What are the steps in registering copyright in an image?
For a single image, file online using the Copyright Office’s eCO electronic filing http://copyright.gov/eco/. Follow the instructions shown in their online tutorial.

To register your copyrights in groups of photographs, follow these steps:
Step 1. Divide your photos into 2 groups: Published or Unpublished

Do not include any photos in which someone else owns the copyright (e.g., you shot as an employee, under a work made for hire contract, or assigned to a client)

“Published” means that copies of the photos have been distributed to the public (with your permission). In traditional media, this means the photos have been in printed publications, such as books or magazines, or on CDs, or that you have sold multiple prints of an image.

Unfortunately, the Copyright Office and the courts have not provided clear guidelines about whether photos displayed online qualify as being “published.” So for now, it is up to each photographer to decide how to categorize them. I think the best approach is to make the division based on whether you are allowing the online photos to be downloaded. In that case, you are distributing digital copies to the public, so they would be “published.” On the other hand, if your online portfolio explicitly says copying is not permitted, then you can consider those photos “unpublished.” See: http://www.copyright.gov/fls/fl107.html

Step 2. For published photos:
(a) consider joining the pilot program for online e-filinghttp://www.copyright.gov/circs/sl39.pdf
(b) use paper forms:
-Divide your published photos into groups by the calendar year in which they were taken. Give each group of photos a collection title (e.g., “Cityscapes 2015”) – Do not use “untitled” – and give each photo an image title or i.d. number. Submit a separate application for each year group.

-For up to 750 photos per year: use Form GR/PPh/CON http://copyright.gov/forms/formgr_pph_con.pdf
-For more than 750 photos, use Form VA http://copyright.gov/forms/formva.pdf
(note: for Form VA, you must identify the date of publication on each image)

Step 3. For unpublished photos:
Use eCO electronic filing http://copyright.gov/eco/

-Provide a collection title using the “title of work” field
-Provide image titles using the “contents title” field

When preparing your applications, follow the instructions provided with each Form.
You can also consult the following Copyright Office links:
– Information re filing for groups of published or unpublished photos:
– General information re filing for visual artworks including photos:

Tune in Thursday, May 28th to learn about common misconceptions when it comes to copyright and what to do if there is an infringement on your image.

For more information about copyright, review this valuable post from pikwizard.com

Thank you Brett Nadal for the use of your image.