Copyright/Copywrong in Image Licensing

© PACA 2007

June 28, 2007

A Study of Copyright Law by thePicture Archive Council of America

Popular Copyright Myths

· If an image is on the internet/Google it is in the public domain.

· If there is no copyright notice on the image, I don’t need permission.

· If I don’t profit from the use, I don’t need permission.· If I remove the image after notice, I don’t owe any

money to the copyright.· If I alter the image X% I don’t need permission.· If I only use a part of the image I don’t need

permission.

Copyright Basics

The US Constitution gives Congress the power to

enact laws “to promote the progress of science and

useful arts, by securing for limited times to authors

and inventors the exclusive right to their respective

writings and discoveries.”

When do you acquire copyright protection?

· Copyright protects “original works of authorship” that are fixed in “a tangible form of expression.”

· Rights begin at the moment of “fixation.”

What is protected?

· literary works (all text, including computer software) · musical works · dramatic works · pantomimes and choreographic works · pictorial, graphic, and sculptural works · motion pictures and other audiovisual works · sound recordings· architectural works

What is not protected?

· ideas, concepts, or discoveries· titles, names, short phrases, and slogans· works that are not fixed in a tangible form of

expression such as improvised speech or dance· works consisting entirely of information that is

commonly available and contains no originality· anything written or created by the US government

What rights does the owner control?

Rights to:· make copies of the work· distribute copies of the work · perform the work publicly (such as for plays, film,

or music)· display the work publicly (such as for artwork, or

any material used on the internet or television)· make “derivative works” (including making

modifications, adaptations or other new uses of a work, or translating the work to another media)

How long does copyright protection last? (Current Act)*

· for the life of the author, plus 70 years· 95 years for corporations

*since 1978

Duration (pre 1978 and post 1978)

Created January 1, 1978or after

TERMPROTECTED FROM

When work is fixed in a tangible medium of expression

For works of individual authorship: Life + 70 yearsFor works of corporate authorship: the shorter of 95 years from publication, or 120 years from creation

Created before January 1, 1978 but not published

January 1, 1978, the effective date of the 1976 Act which eliminated common law copyright

Life + 70 years or December 31, 2002, whichever is greater

Created before January 1, 1978 and published by December 31, 2002

January 1, 1978, the effective date of the 1976 Act which eliminated common law copyright

Life + 70 years or December 31, 2047, whichever is greater

Published from 1963-1977

When published with notice 28 years for first term; now automatic extension of 67 years for second term

Published from 1923-1963

When published with notice 28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain

Published before 1923

In public domain None

DATE OF WORK

What is Public Domain?

· works out of copyright· US - All published works before 1923

· works that fell out of copyright for failure to register or renew under 1909 Act or for lack of notice before 1989

Is copyright notice needed?

· since March 1989: copyright notice is no longer required for published works

· notice is voluntary but recommended· proper notice: © year, name

Who owns copyright?

· a freelance artist who created the copyrighted work· an employer who hires employees who creates

copyrighted works as part of their job

Can copyright be transferred?

· Non-exclusive rights can be transferred without a writing.

· Exclusive rights require a writing signed by copyright holder or authorized representative.

Limitations on owner’s rights

· "Fair Use" doctrine allows limited copying of copyrighted works for educational and research purposes.

· The copyright law provides that reproduction "for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is not an infringement of copyright.

What is Fair Use?

· class handouts of very short excerpts from a book, magazine, newspaper, etc.

· quoting for purposes of reporting the news or criticizing or commenting on a particular work of art, writing, speech or scholarship

Social commentary

Parody can be Fair Use

What is not Fair Use?

· using a photograph or other image to illustrate a newsworthy story (because the subject of the story is newsworthy it does not make the image newsworthy)

· creating a similar photograph that incorporates elements of the first photograph

Parody?

Parody?

Change of medium is still an infringement

Blanche v Koons: “transformative = fair use”

Why should you worry about copyright?

· substantial monetary damages can be awarded (actual damages, profits)

· statutory damages ($750-$30,000 and up to $150,000 if the infringement was willful)

· the infringing use can be enjoined· attorney’s fees· criminal offense under some circumstances

Who is responsible?

· the company that directly infringed· employees or individuals who participated in the

infringement or should have supervised· anyone who publishes the infringing image whether

they had knowledge or not

How to license

Broad Rights/Subscription

· May use same image for many uses without additional license - restrictions still apply

· No exclusive use available

· Availability to use a collection of images for a yearly/monthly fee (subscription)

Rights Managed

· License limited to particular use and time period

· May request and pay for some exclusive use

Actual copying

· Must show the alleged infringer had access to the original· Must show the alleged infringer actually copied protected

elements of the original in creating the second image

Derivative Work

This image was created by a computer graphics artist who “borrowed” images from several sources.

Original art

These are the two images that were infringed upon to create the Newsday cover.

Substantial similarity

· There is no hard and fast rule for what is substantially similar

· The two photos are compared to one another in court

Lou Sahuc: Decatur Street Gate Lee Tucker: Breaking Mist

Sahuc v Tucker

Elements that are compared

· Posing· Lighting· Angle· Background· Perspective· Shading· Color· Viewpoint

Total Feel and Concept Elements

Elements in the particular photo that tend to

make it original and unique

Idea-Expression Dichotomy

· The idea is not protected.· Only the expression of the idea is protected.

· Where the way the idea is expressed tends to merge with the idea itself, there is no protection.

Idea vs. Expression

Fournier v Erickson

Leigh v Warner Bros.

Scenes a Faire

· Things that tend to look a certain way in any two photos of the same or similar subject

· For example, a photo of a building will naturally look similar to another photo of the same building.

Kaplan v. Stock Market Photo Agency, Inc.

Highly orchestrated images enjoy greater protection

What’s copyrightable?

Protected

· Particular expression

· Total look and feel

Not Protected

· Ideas

· Expression merged with an idea

· Commonplace subjects and compositions

You Decide…

Inspiration or infringement?

Copyright protection online and offline

· Register the work with the Copyright Office· Include copyright information with work - particularly

online (CMI)-this includes copyright notice

Why register?

· Required before filing a claim (US authors)· Remedies limited to actual damages and no ability to

recover attorneys’ fees if work registered after infringement.

· With registration before infringement, you can seek statutory damages ($750-$30,000) and attorneys’ fees and statutory damages can be enhanced up to $150,000 if the infringement was willful.

Registration options

· Photographers - group registration regulations for published works (www.copyright.org)

· All artists can register large groups of unpublished works.

· Published artwork must registered separately from unpublished (display not a publication).

Requirements

· Currently Form VA (www.copyright.gov/forms)

· Deposit of work· Currently $45 per application registration fee· Additional special handling fee if needed on

expedited basis · Do not use regular mail

Digital Millennium Copyright Act (DMCA)

Section 1202 Damages for Removal of Copyright

Management Information (CMI)

· Elements-Remove or alter CMI (watermark/copyright information)

· intent to induce, facilitate or conceal infringement

Statutory damages $2,500 to $25,000

ISP Safe Harbor

· No monetary liability for content of user stored on its

system if infringing content is removed from website

expeditiously· ISP must receive proper notice

· Can still proceed against direct website infringer

· Send to ISP’s registered agent· Must identify infringed works and location· Must be in made in good faith belief· Must swear you have authority to represent copyright

owner under penalty of perjury· Physical or electronic signature

Notice and Take Down Letter

Links

www.copyright.gov

www.stockindustry.org