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The Basics of U.S. Copyright for Photographers

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When I was in college, I lived for a while in a crappy little rental house next to a cemetery. Neither I nor my roommate, Brad, knew how to cook anything, and we ate bologna sandwiches pretty much all the time. Eventually, someone gave us a cookbook so simple that even a half-starved English major could learn a few basic dishes–the first page actually had step-by-step instructions, with pictures, for making toast in a toaster.

It sounds silly, but it was exactly the cookbook I needed at the time, and I eventually became a pretty good cook.

Now I’m a lawyer, and in this column, I hope to do something similar to that cookbook. Instead of making toast, I want to share, in the clearest possible layman’s terms, some of the basics of copyright law. As with so many areas of the law, there’s an extraordinary amount of misinformation floating around about copyright, and I hope to demystify it a bit, with an emphasis on what’s useful for photographers.

Some of this may be redundant information for some of you; please bear with me. Future columns may cover topics such as licensing, public domain, contracts, derivative works, fair use, street photography, the First Amendment, international copyright, Creative Commons, and so on. If you have a request for a column topic, feel free to drop a line.

Let me stick a disclaimer in here: I’m a lawyer, licensed in Tennessee, and while copyright is part of federal law and applies in all 50 states, I nonetheless want to make it clear that nothing I say here is to be taken as legal advice. Your specific situation should be discussed one-on-one with an attorney licensed in your jurisdiction. In other words, I’m a lawyer, but I’m not your lawyer.

OK, let’s make some toast:

First of all, the word is copyright. Not “copywrite,” not “copywright.” As a noun, it means the right to make copies of something, and to control who else has the right to copy it. (We’ll get to what “copy” means shortly.) When used as a verb, “to copyright something” means to attach or exert one’s right to copy it, as in, “This photo is copyrighted, so no one else can use it without my permission.” Note that the past tense is copyrighted, not copywritten or copywrote or some such.

U.S. copyright law has been federal law since 1978, and applies in all 50 states. In the U.S., copyright is automatically created in a work when the work is created. You don’t have to register your copyright with the U.S. Copyright Office, don’t have to fill out any type of paperwork at all. If you draw a little squiggle with a pen on a piece of paper, you own the copyright in that squiggle. If you accidentally press the shutter on your camera and get one of those blurry throwaway shots, you instantly, automatically own the copyright in that image. No one can legally reproduce that photo without your permission. (There are exceptions, such as works for hire, which I intend to cover in a future column.)

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In case there’s any confusion, the little copyright symbol, ©, doesn’t actually add any copyright protection to your work. It’s a good idea to use it, but in reality its main function is to let people know that you’re paying attention to your copyright. Your work is copyrighted just as thoroughly before you add it as after, but it’s still a good idea.

So let’s say you’ve created your photo, and now you own the copyright in it. What rights do you have, exactly?

As you’ve probably figured out, the main component of copyright is the right to copy. You have the right to make copies of your photo, and to sell them. You also have the right to choose who else may make copies of the photo. You can charge people for the right to make copies of your photo, which is called “licensing” the work. You can also sue someone for copyright infringement if they make copies of your photo without a license.

Under the law, a right is a possession, having its own value. What that means in practice is that you not only own the copyright in your works, but you can sell that right if you want. Selling a copyright is different from licensing: When you license your work to someone else, you still own the right. But when you sell the copyright, you’re giving up your right to copy the work in exchange for something (usually money).

Remember: Owning a physical photo, whether an original or a reproduction, is a totally separate legal fact from owning the copyright in that photo. If I buy a photo print to hang on my wall, that doesn’t mean I’ve bought the right to make copies of it. Most of the time when we purchase a work of art, from photos to novels to music CDs (I know, no one buys CDs anymore), we are purchasing the thing itself, but not a license to copy it.

Let’s take a moment to clarify what “copy” means in this context. In everyday speech, we may say someone “copies” a William Eggleston photo if they take a picture of a red ceiling, but under the law, that’s not a copy. To copy a photo, in legal terms, is to make a reproduction of the actual photo, usually by mechanical or electronic means, such as a copier or a computer. Taking inspiration from a photo is not the same as copying it, and as long as no one is going to mistake your version for the real thing, such imitation is usually legal. There may be similarities between two works, but that doesn’t constitute copying, or copyright infringement. For someone to be “copying” your photo in the legal sense of the word, they must be reproducing at least part of your actual photo.

It’s important to understand that an idea cannot be copyrighted; only a specific expression of the idea can be copyrighted. For example, a photo you take of your feet is copyrighted, but the idea of “a photo of the photographer’s feet” cannot be copyrighted. (Which is good, because let’s admit it, we have ALL taken that photo.)

Finally, once your copyright is established and you’re ready to start licensing it out and raking in some of that sweet, sweet royalty cash, how long does copyright last?

As with so many legal questions, the answer is “it depends.” For a photo created in 1978 or later, the copyright lasts for the life of the photographer plus 70 years. For photos created before 1923, copyright has expired and these photos are in the public domain. For photos created between 1923 and 1977, it’s even more complicated. Most of them have a copyright term of 95 years from the date of publication. But for any photos you create today (which is what most people really want to know), the copyright will last for 70 years after you die.

So there are some basics of copyright. I know I’ve only barely touched on most of this, and I hope to produce deep-dives on a bunch of these issues in future columns, but for now I hope I’ve provided a decent flyover view of this vast area of the law.

Copyright is a more complex issue than one might think at first glance. But then again, there’s some pretty esoteric chemistry going on in making toast as well, and we can all use a refresher on the basics now and then.


You can find the archives of Adam Remsen’s column here.


About the author: Adam Remsen is an attorney in Memphis, Tennessee. You can learn about his practice, request his services, or tell him how wonderful he is via his web site, or find him on Twitter.

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