As soon as you create your work, a copyright is created. When a photographer clicks the shutter, they have a copyright in the image. A copyright exists as soon as the creator’s (non-copyrightable) idea is expressed in a medium that can be viewed.
A copyright is intangible intellectual property. It’s something that a person or corporation can have ownership of and can transfer ownership of to another person or corporation, but has no physical substance.
Generally speaking, no one has the right to copy your creation in any way in any medium without your permission. It is illegal for any unauthorized person or company to scan, copy, duplicate, manipulate, alter, etc. your work without your permission. And, the law specifically gives creators the right to copy, reproduce, distribute, display and create derivative uses of their work.
Registration is Protection: Although all work is copyrighted at the moment of creation, not all work is protected equally. If a registered work is later infringed, the creator/owner can recover actual damages (the fee that would normally have been paid for the use), as well as Statutory (Punitive) Damages (up to $150,000 for each infringement) and legal fees. A work that is infringed and has not been registered, can only generate the Actual Damages. This means that, in most cases, the cost of the suit far exceeds the recoverable moneys. If you expect to file a suit most attorneys won’t speak to you unless they know you’ve registered your images.
The one exception to the above is work that has been infringed within 90 days of first publication. In this case, it is still possible to register and have access to Statutory Damages and Legal Fees. If you are in this position, you need to register immediately.
The Copyright Act grants five rights to a copyright owner:
the right to reproduce the copyrighted work;
the right to prepare derivative works based upon the work;
the right to distribute copies of the work to the public;
the right to perform the copyrighted work publicly; and
the right to display the copyrighted work publicly.
Workflow: Since registration of unpublished work affords the most protection, it is the most desirable. You can wait to submit/register until a specific work is about to be published. If you work on projects that have long lead times, this may mean infrequent submissions. If your work gets published more often, you may want to work the registration procedure into your normal image creation or digital darkroom workflow. Additionally, the image deposited to the US Copyright Office should be made in such a medium that it will still be viewable during the term of the copyright, which, for independent creators, extends to 70 years after the creator’s death.
The files in a registration are required to be uniquely named. Choose something that identifies the files, in case you had to dig up a single file for litigation - it’s a lot harder looking through lists of files named DCS_1045.jpg. It also makes it easier to prove that the image in question was actually part of the registration collection. Duplicate names in the owner’s other files or copyright registrations may cause problems.
Is it better to register the original capture or the post processed file? What if you increase the color saturation, contrast, crop the file, make it black and white, and so on? You can register files as basically captured, with minimal work, like exposure correction in Lightroom’s Quick Develop. The variations of the original are protected with what is known as the ‘right of derivatives’. You own the copyright to derivatives of your image. But, if you really work a file a lot - it couldn’t hurt to register it also.
And, just because a registered work is accepted by the Library of Congress, it does not mean that the copyright registration cannot be challenged in court. In fact, if a significant amount of money is on the line, a challenge is not uncommon. Any falsification or factual error in the registration could potentially invalidate the registration. You must expect that participants in a copyright case will look hard at all information on the form, including the publication dates. Make sure that you are registering the earliest possible publication of the photo.
Another tip - imbed copyright and owners information in metadata for electronically transferred files.
Myths and Questions:
“If it doesn’t have a copyright notice, it’s not copyrighted.” This was true in the past, but today almost all major nations follow the Berne Copyright Convention. For example, in the USA, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not. By default, you should assume that other people’s works are copyrighted and may not be copied unless you know otherwise. There are some old works that lost protection without notice, but you should not risk using them unless you know for sure.
It is true that a notice strengthens the protection, by warning people, and by allowing one to get more and different damages, but it is not necessary. If it looks copyrighted, you should assume it is. You may not scan pictures from magazines and post them to the net, and if you come upon something unknown, you shouldn’t post that either.
The correct form for a notice is: “Copyright [dates] by [creator /owner]”
You can use C in a circle © instead of “Copyright” but “(C)” has never been given legal force. The phrase “All Rights Reserved” used to be required in some nations but is now not legally needed most places.
“If I don’t charge for it, it’s not a violation.”
False. Whether you charge can affect the damages awarded in court, but that’s main difference under the law. It’s still a violation if you give it away - and there can still be serious damages if you hurt the commercial value of the property. If the work has no commercial value, the violation is mostly technical and is unlikely to result in legal action. Fair use determinations do sometimes depend on the involvement of money.
“If it’s posted to the Internet or Usenet, it’s in the public domain.”
False. Nothing modern and creative is in the public domain anymore unless the owner explicitly puts it in the public domain. Explicitly, as in you have a note from the creator/owner saying, “I grant this to the public domain”, or words very much like them. Some argue that posting to Usenet implicitly grants permission to everybody to copy the posting within fairly wide bounds, and others feel that Usenet is an automatic store and forward network where all the thousands of copies made are done at the command (rather than the consent) of the poster. This is a matter of some debate, but even if the former is true (and in this writer’s opinion we should all pray it isn’t true) it simply would suggest posters are implicitly granting permissions “for the sort of copying one might expect when one posts to Usenet” and in no case is this a placement of material into the public domain. It is important to remember that when it comes to the law, computers never make copies, only human beings make copies. Computers are given commands, not permission. Only people can be given permission. Furthermore it is very difficult for an implicit license to supersede an explicitly stated license that the copier was aware of. Note that all this assumes the poster had the right to post the item in the first place. If the poster didn’t, then all the copies are pirated, and no implied license or theoretical reduction of the copyright can take place.
Note that granting something to the public domain (PD) is a complete abandonment of all rights. You can’t make something “PD for non-commercial use.” If your work is granted PD, other people can even modify one byte and put their name on it. You might want to look into Creative Commons style licenses if you want to grant wide rights.
“My posting was just fair use!” The “fair use” exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the creator. This is vital so that copyright law doesn’t block your freedom to express your own works - only the ability to appropriate other people’s. Intent and damage to the commercial value of the work are important considerations.
“If you don’t defend your copyright you lose it.” False. Copyright is effectively never lost these days, unless explicitly given away. While copyright law makes it technically illegal to reproduce almost any new creative work (other than under fair use) without permission, if the work is unregistered and has no real commercial value, it gets very little protection. The creator/owner in this case can sue for an injunction against the publication or infringing user and may win actual damages from a violation, and possibly court costs. Actual damages means actual money potentially lost by the creator/owner due to publication or use, plus any money gained by the defendant. But if a work has no commercial value, the actual damages will likely be zero.
These days, almost all images are copyrighted the moment they are created in a material form, and no copyright notice is required.
Copyright is still violated whether you charged money or not, only damages are affected by that.
Postings to the net are not granted to the public domain, and don’t grant you any permission to do further copying except perhaps the sort of copying the poster might have expected in the ordinary flow of the net.
Fair use is a complex doctrine meant to allow certain valuable social purposes.
Copyright is not lost because you don’t defend it; that’s a concept from trademark law.
Work derived from copyrighted works is a copyright violation.
Copyright law is mostly civil law where the special rights of criminal defendants you hear so much about don’t apply. Watch out, however, as new laws are moving copyright violation into the criminal realm.
Don’t rationalize that you are helping the copyright holder; often it’s not that hard to ask permission.
Posting E-mail is technically a violation, but revealing facts from E-mail you got isn’t, and for almost all typical E-mail, nobody could wring any damages from you for posting it. The law doesn’t do much to protect works with no commercial value.
The eCO (Electronic Copyright Office) system
As far as the paper VA form (Visual Arts form), it is being phased out. If you have any VA short forms you can still use them or you can still request them to be mailed to you from the copyright office.
There is a problem with the number of files you can register - if you are registering a very large number of images. There is an upload time limit of 30 minutes, not a size limit. So after 30 minutes, the upload will time-out. But what you can do is fill out all the info on the electronic form, make the payment of $35, and then printout a mailing sheet and mail in your images on a CD, along with a printout of the filenames.
The effective date of your registration will be the date they receive your CD, which the Copyright Office calls the “deposit.” If you do mail in a CD, get a delivery confirmation or return receipt to confirm the date they received your image deposit.
Carbon Transfer II
In Susan Cain’s TED Talk, she spoke of introverts and extroverts and the power of both. I think our world of creativity has become extroverted. We are being condition and taught that our image in the eyes of others is more important than our own image of ourselves. So in photography, it’s all about ‘putting’ oneself out there, about competitions, about having the appearance of a professional, about having a following, about having ‘likes’.
The unfortunate consequence is that we can truly not admit we know nothing, or are a rank beginner and feel good about it. Contentment with one’s level knowing that growth lies ahead with work and time is an enlightenment reserved for the few. More common is the purchase of a digital camera, followed by an online photo-site account, then maybe a personal website. As instantly as the images appear one becomes an instant Artist. A Photographic Artist. It’s as easy as the Auto Mode you use in your camera.
The result is banality. Millions of mediocre photos of sometimes pretty things - way too many birds, flowers, and sunsets. But, it does get you the most ‘like’s’ - the extrovert’s reward. Photography today is like a super obese sugar addict sitting in front of a table filled with cakes and pastries. They can’t stop eating and the instant gratification of the taste buds trumps any thoughts of the consequences. The sugar addict gets a quick fix but is never happy.
For some, photography is a hobby or social endeavor - it is fun, light, and easy. Others who are driven to create may find that they don’t know why they have to take photos. Trying to understand the inexplicable, they often turn outwards and very unfortunately get sucked into the artstyle of the mediocre masses.
Growth comes from introspection and from education. Education can be as simple as a critique, or a pile of books and classes. There are millions of classes and books on Photoshop, a few thousand on learning the “rules” of composition (or how to put yourself in a little box), and maybe a handful that teach you how to discover your reasons, motivations, and direction of your creativity.
After 35 years of taking black & white photos with film, I went digital in 2006. Joined a photo club, one with an appropriate number of moronically stifling rules. Used an online photo-site. Even got a webpage and wrote an “Artists” bio. But nobody could every answer the one question I kept asking: Why?
Why? I think that was the first word out of my mouth, just before mama. Why? People don’t like that word; it puts them on the defensive. But how can you do anything if you don’t know Why?
So, I turned back to myself. I’m an introvert so it wasn’t too difficult. I may not absolutely know why I am driven to take pictures, or be creative, for that matter. But, I know it gives me great satisfaction to make things. I like to use my hands as well as my mind. I built an airplane - 12,000 rivets into 12,000 holes. I’ve written stories. I bake french bread.
Thinking, I now understand why I like to show people my photos, or taste my bread. It is about sharing the positive experience that I get from the things I make. More people like my french bread than my photos, but that has to be expected. My bread is crusty, warm, with flavor that piques ones warm & fuzzy buttons. My best photos, that is, the photos I like the most are a bit odd, often with mentally dark overtones, or simplistic geometric concepts.
Getting to that introspective place where you show creations to share what’s in your mind is a first step towards education. When you only care what you think or feel about a photo, but enjoy others’ enjoyment, then you now own your creativity. Not everyone can relate. Often not those with closed minds or the masses caught in the wave of instant photographic mediocrity. Conversely, it doesn’t matter how many people like your image if you don’t like it.
Enter Carbon Gelatin Printing.
I said I like the idea of crafting with both my mind and body. I’d be a painter if I could but I don’t have the mental skill. It’s much harder to take a photo than it is to paint a picture. Painters get to start with a blank canvas and add the elements. A photographer has to see all of the elements and minimize those detrimental while emphasizing those significant. A photo succeeds less often. It’s why I love photographing at night.
In my Carbon work, the capture is digital, and that’s ok - a camera’s a camera. The initial darkroom is the computer with the first print being a large negative on transparency film. Making carbon tissue is a bit like cooking, and then it becomes an industrial coating process. Combining and UV exposing the negative and carbon tissue is hands-on, as is the developing in a tub of hot water. The image appears slowly as the hot water melts away the unexposed and unhardened black or brownish gelatin.
Every now and then a carbon print comes out quite fantastic. It’s a real achievement. It makes one feel good. I’m talking happiness. The kind of happiness you feel when you do your first solo flight in a small airplane; not to be confused with what people experience when they buy a new car or iphone, or get 5 likes on fb. Printing one good carbon print beats printing five hundred inkjet prints - just ask the fat man eating cake over there.
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