Written by Jennifer Stoots

The Copyright Act of 1976 states that “All works created on or after January 1, 1978, are protected by statutory copyright from the time of creation in fixed tangible form, regardless of registration or publication with copyright notice.”[1]  In layman’s terms, this means that an artist or author has full ownership of his or her original creation from the time it is made.  This, of course, includes photographs, not only the physical object but also the image captured.

Under the Copyright Act of 1976, the creator is granted five exclusive rights:  The right to reproduce, adapt, distribute, perform and display. [2]  There are restrictions to each of these rights, additionally infringement of copyright “does not occur unless an unauthorized use of the copyrighted work falls within the scope of one of the five enumerated rights.”[3]  For example, if a newspaper or weekly press reproduces a photograph by an artist without permission, that publication has infringed the photographer’s ownership of that image and the infringer is required to make amends if caught.

Unfortunately, it is not always so clear or simple.  I recently had the opportunity to discuss copyright infringement with a contemporary photographer who found himself defending ownership of his imagery and subsequently hired legal council.  (Because the artist prefers to remain anonymous, he will be referred to as the Photographer and the infringer will be referred to as the Retailer.)  Here’s the scenario:  The Retailer regularly publishes a mail-order catalog featuring its products.  One of the lines of merchandise that the Retailer sells is picture frames. In a recent catalog, the Retailer’s picture frames were presented with the Photographer’s photographs.  What the Photographer was able to discern from the catalog images is that pages from one of his books had been cut in to quarters and the fragments reassembled (framed) in the Retailer’s multiple window picture frames.

The Photographer’s images are distinctive enough that they were recognizable as having been produced by him.  The Photographer had not registered his photographs with the Copyright Office, but there was clear mis-use of the work.  Legal council advised that the Photographer ask for monetary compensation equivalent to what he would have received for a commercial contract (e.g., a photography assignment from a magazine).  The Retailer, fortunately, was reasonable, agreeing that the Photographer’s imagery was used without permission and agreed to the compensation request.  Had the Retailer beenunreasonable, the Photographer would have had another option; he could have then registered his images with the US Copyright Office and subsequently filed suit against the Retailer for statutory damages (a provision of the Copyright Law).

Copyright attorneys generally recommend that artist’s register work of commercial value.  Registration serves as evidence that the creation is original and owned by the registrant.  Thus, in the event the author’s copyright is violated, he or she can thus pursue legal action immediately, if necessary.  Artists can register individual photographs or a portfolio of work with the US Copyright Office, is my understanding.  (Coverage extends for the creator’s life plus 75 years.)  More information about Copyright Law and registration with the US Copyright Office is available on-line at www.copyright.gov .  Also, the photographer Peter Krogh has outlined photo-specific issues on his website:www.peterkrogh.com/copyright/main.html .

[1] p. 774-775, Lerner, Ralph E. and Bresler, Judith. Art Law: The Guide for Collectors, Investors, Dealers and Artists (Second Edition). Practising Law Institute. (New York: 1998)

[2] P. 795, Ibid.

[3] P. 795, Ibid.