Top 10 Misconceptions about Photography and the Law

A Conversation with Attorney Carolyn E. Wright
By Martha Blanchfield
Carolyn Wright is an avid photographer, attorney and author of www.photoattorney.com, a rich resource Web site that covers a wide range of issues and topics of interest to photographers. In her 18 years’ work as an attorney she has worked on hundreds of cases—most of which have been resolved without formal litigation. The most common matter she handles is the unauthorized use of her clients’ photographs.
“Photographers have many misconceptions about copyright laws and intellectual property rights based on conversations they have had with colleagues and/or inaccurate information obtained from the Internet. My Top 10 List came about as a way to combat the spread of this misinformation,” Wright shares, whose areas of practice deal with intellectual property, including copyright and trademark law, rights of privacy and publicity, and contracts and licensing.
“Unfortunately, the services of an attorney are sometimes required to enforce ownership rights, but a photographer should do all that is possible in advance of engaging legal counsel,” she notes. “One of the most important things is to register the copyright to all of his or her images that have been distributed to others (especially those on the Internet) with the U.S. Copyright Office. A second task for photographers seeking to make money with their photography is to really learn how to run and proactively manage a business.”
Top 10 Misconceptions

1. You don’t need permission to photograph a work of art that is in a public area.
This rule is based on copyright law. United States Copyright Law grants exclusive rights to the copyright owner of a creative work, including the rights to: reproduce the copyrighted work; prepare derivative works based on the copyrighted work; distribute copies of the copyrighted work to the public; and/or display the image. (See 17 USC §106.)
When those rights are infringed the copyright owner is entitled to recover damages suffered as a result of the infringement. (See 17 USC §504). So even when a creative work is in a public area you may photograph it only if the work is in the public domain or your photograph makes a fair use of the work.


2. A news publication may use your photograph without your permission because it is fair use.
The answer is not so easy. Wright notes that some individuals claim that use of a photograph for educational or newsworthy purposes is okay under “fair use.” The doctrine of fair use means that copying will not infringe a copyright when it is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”
Four factors are considered to determine whether the use of a photograph qualifies for fair use:

• The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit or educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the copyrighted material that is used.
• The effect of the use upon the potential market for or value of the copyrighted work.

3. You need a model release to use a photograph of a person on a book cover.
In general, the use of a person’s image on a book cover was considered to be an editorial use that would not need a model release. Recently, however, a New York court determined that a model release was needed for a cover of a fiction book. While this ruling has created an anomaly, it’s always safest to obtain a signed model release.
4. If you make money from a print, it is a commercial use.
Just selling a print or licensing a photo does not make the transaction a commercial use of a photograph. Instead, a commercial use of a photograph generally occurs when the photo is used for advertising, endorsement or trade.
5. You need a property release to use a photograph of a house for a commercial use.
No court or state has established a law—either by statute or through court rulings—creating a right to protect or prevent property from being photographed from a public area, or from that photograph being used editorially or commercially. Thus, no legal reason exists for a “property release,” except perhaps when photographing other copyrighted works or trademarks. Note that some stock agencies require a property release for fear of being sued.
6. You have no copyright protection for your photos until you register them.
Copyright exists in your photographs at the moment you click the shutter. While you do not have to register your photos with the U.S. Copyright Office for them to be protected by copyright, there are many reasons to register them. When a photo is not registered with the U.S. Copyright Office prior to an infringement (or within three months of the first publication of the photo), a copyright owner may recover only “actual damages” for the infringement (pursuant to 17 U.S.C. 504 (b)), instead of statutory damages. Courts usually calculate actual damages based on your normal license fees and/or standard licensing fees, plus profits derived from the infringement, if not too speculative.
Note also that to file a lawsuit in the U.S. for copyright infringement, the photo must be registered.
The U.S. Copyright Office now allows for registration of certain copyrighted works online using the eCO system. Currently, you may use eCO to register any number of unpublished images, a single published image and multiple images that were all first published in the same “unit of publication.” Registrations of a group of separately published photographs at this time must be submitted on Form VA only, with optional use of continuation sheet Form GR/PPh/CON. The Copyright Office expects that these group registrations will be allowed using the eCO system soon.
7. Statues and other works of art on federal or state property are in the public domain.
Works in the “public domain” are creative works that are not protected by copyright. Works are in public domain either because: (1) the author failed to satisfy statutory formalities to perfect the copyright; (2) it is a work of the U.S. Government; or (3) the term of copyright for the work has expired.
Item (1) refers to work published prior to March 1, 1989. The copyright notice had to be affixed to the work or it immediately lost protection (the copyright protection for some foreign works has been restored even if they were published without notice before that time). Works published without the copyright notice between 1/1/78 and 3/1/89, the effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years—such as by placing notice on unsold copies. The law has changed so that works published after that time do not need the copyright notice for protection, but it’s a good idea to use it anyway.
Item (2) provides that works of government employees, such as maps, charts and surveys are in the public domain from the date of creation.
Item (3) allows a certain time of copyright protection for the benefit of the creator. The time for that protection has changed several times over the years, so it’s difficult to explain when works fall into the public domain. The chart found at www.unc.edu/~unclng/public-d.htm is helpful to determine dates.
Sometimes, however, copyrighted works are created by non-government personnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The “government works exception” then allows the federal government to hold the copyrights for those works transferred to it by assignment.
Some have argued that the government is using this exception unfairly and as a workaround for copyright law. So far, it has been used to prevent the copying or creation of derivative works from items such as a film series on early Supreme Court cases to the Sacagawea coin.
The Vietnam Women’s Memorial Foundation, Inc. (VWMF) has used the exception as a basis to sue those who have sold photographs of the Vietnam Women’s Memorial. The Memorial is a bronze sculpture created by Glenna Goodacre of Santa Fe, NM. It resides on the grounds of the Vietnam Veterans Memorial in Washington, D.C., and depicts three women and a wounded soldier. Goodacre reportedly transferred the copyright for the sculpture to the VWMF, which has sued various entities that allegedly sold photographs of the sculpture.
8. Photographs of works in the public domain also are in the public domain.
Unless the photos are exact copies (often referred to as “slavish copies”) of the creative works that are in the public domain, they are entitled to protection under copyright law (see response to #1).
9. If a stock agency requires a model or property release, then it must be legally required.
In general, you may photograph people when they are in public. The use of those photographs, however, can be restricted due to certain privacy rights. Privacy rights are recognized in most states, but are different for each state. Since it’s tricky to know what you can do, the safest approach to follow is the most restrictive one.
One right of privacy—also known as the right of publicity—is the commercial appropriation of someone’s name or likeness. This happens when the name or likeness of someone is used without consent to gain commercial benefit, such as when a photograph of a person is used in an advertisement without the person’s permission. You don’t need a model release to use a photograph of a person for editorial purposes. Since it’s sometimes difficult to tell whether a use of a photograph is commercial or editorial use, it’s best to get a model release. Further, since stock agencies want to avoid lawsuits, they may require a model or property release in an abundance of caution, even when they are not needed.
10. If you take a photograph while working, the copyright to the photograph always belongs to the employer.
Section 101 of the copyright law includes one of the definitions of a “work made for hire” as: (1) a work prepared by an employee within the scope of his or her employment. Thus, while you may take a photo while on the job, if photography is not within your job description, then you, not your employer, own the copyright to the image. When the copyright belongs to your employer, it is as if you never took it and you may not use it for any purposes unless authorized by the employer or the law (such as a fair use).

For more reading, here is a selection of books on the topic of  Photography and the Law