Copyright Issues - Click To Expand
Why am I reading this?
The client's concern regarding copyright is an important one. In this Q and A copy, we'll try to address some of the more important issues regarding copyright. As it pertains to Marc Sillman Productions, the copyright from the original images we create will always remain with us. Listed below are some of the more common questions you may have regarding copyright. Please call us for further information...
What is copyright?
Copyright is a right, granted to the photographer by law, to control the copying, reproduction, distribution, derivative use, and public display of the photographs, and to sue for infringement of the ownership of the work. This right begins at the moment a latent image is created, whether on film or digital media. Copyright ownership is automatic when an image is made. The one exception to this is when the images are considered work for hire.
Are all images copyrightable?
Although most images are copyrightable, some are not. To be copyrightable, images must be original. Originality is essential to copyright. If you exactly copy a photograph, the copy cannot be copyrighted, since it has no originality. (In fact, if the first photograph is copyrighted, you would need the original photographer’s permission to copy it.)
Is copyright automatically transferred in the sale of a print, negative or transparency?
No, it is not. Copyright is separate and distinct from the physical material in which the image is captured or stored. The photograph can be owned without owning the right to use it. Generally, unless otherwise restricted at the time of sale, the ownership of the photograph entitles its owner to display it, or reproduce it to advertise, publicize or otherwise illustrate the work in question so long as it falls within the confines of copyright law and our contract.
What is publication?
The copyright law states: “Publication is the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” That language can be simplified for photographers as follows: “Publication” is the distribution of copies of images to the public by any means, such as a brochure, magazine, advertisement, website, etc. It is also the distribution of images to others to make a further distribution, or a public display, so sending images to agents and agencies can constitute publication. A public performance or display of an image does not of itself constitute publication, but offering it to a group of galleries so they can display it does.
What is infringement?
A copyright infringement occurs when someone uses your image in an unauthorized manner that violates one of your copyright rights (control the copying, reproduction, distribution, derivative use, and public display.) Copyright infringement is a violation of federal law. An infringer may be subject to paying damages to the copyright owner.
Can a client obtain the copyright to The photographs?
Clients can obtain ownership of the copyright by either "Work For Hire" or a transfer of copyright.
What is a transfer of copyright?
A transfer of copyright occurs when the photographer decides to relinquish all rights, except creation, to the original image. This may be done for several reasons: First, monetary - it may be of substantial savings to the client to purchase the image outright. Second, the convenience factor - instead of returning to the photographer for reprints and extra charges, this process keeps control of the original film or media with the client. Third, it no longer necessitates the client having to return to the photographer repeatedly for a copyright release for reproduction.
What is Work For Hire?
"Work for Hire" is another way the client can be the copyright owner. The difference between "Work for Hire" and a copyright transfer is rather simple. In the case of a copyright transfer, the photographer owns the copyright until it is transferred. In a "Work for Hire" situation, the photographer never owns the copyright. The client owns it from the moment the work is created and the client is, by law, the author of the photograph. Work For Hire can only be obtained under certain circumstances.