META Insights

Copyright Fundamentals

Title 17 of the U.S. Code is a long, involved body of law that has grown through legislation, international treaties and conventions, and numerous court interpretations. As such, specific concerns must be addressed by an attorney with copyright or intellectual property credentials.However, the basics are easily understood.

Essentially, U.S. Copyright Law gives a copyright owner the exclusive right to copy (or authorize others to copy), distribute, sell, display, perform, rent, lease or lend the copyrighted work. It also gives the owner the right to transfer ownership of the copyright, but stipulates that  such transfers must be in writing.

Copyrights do not cover ideas, only the tangible expressions of those ideas.  One may have been the  first person to create a photo of a clock appearing flying away on wings, but that does not prevent someone else from executing another soaring clock  However, if the second photographer had seen the first picture and made no attempt at expressing the idea in his or her unique way, the copyright of the original might have been infringed.

The sale of a copyrighted work such as a framed photograph does not transfer the copyright.  Thus, the purchaser of a fine art print has the right to do as he or she pleases with the purchased print, including destroy it or display it.  However, copying the image, or allowing someone else to copy it, would be a violation of the copyright owners rights.

A photographer owns the copyright to an image the moment the image is "fixed in a tangible form of expression."  This means ownership starts the moment the camera's shutter closes since the image now exists on digital media or undeveloped film.

However, the photographer or author may not own an image's copyright if it is created as a "work for hire."  Under the law, a work is deemed "for hire" if it executed by a paid employee or, in the case of a collective work, if there is a written and signed work for hire agreement between an independent contractor and the person or entity that commissioned the work.

Two levels of copyright protection exist under U.S. law.  As noted, copyrights are owned from the moment of creation.  But, the legal consequences of infringing the copyright become more serious when the owner registers the work with the United States Copyright Office at the Library of Congress.

If an unregistered work is infringed, the owner can recover actual damages and profits in court. If registration occurs before the infringement, statutory damages and attorney's fees may be awarded.  Statutory damages can be as high as $30,000 per infringement or higher if the court finds the infringement "willful." Due to the high cost of Federal litigation, copyright owners rarely take infringers to court when the infringed work was not registered before infringement.

But, not every use of a copyrighted work is an infringement.  Title 17 enumerates several exclusions, collectively called "fair use."  Specifically, paragraph 107 says using a copyrighted work for purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

For still visuals, the Copyright office prefers electronic registration. Online registration through the electronic Copyright Office (eCO) costs $35.  In addition to the low fee,  electronic filing offers shorter processing times, online tracking and secure credit card payment.

Photographers may register images electronically, then ship a computer disk or printed version with a printable label provided by during the registration process.  For published works, two copies of the image in its published form must be submitted.  Only one copy of the image is required if the image has not been published.

For $45, copyright owners may register by mail, using Form CO,  downloaded  form from the Copyright Office Web site at  Both mail and electronic registration is effective when the Copyright Office receives all necessary materials.

Photos and some other works can be registered as an unpublished collection. The elements must be submitted in orderly form with a single title.  They must have the same "copyright claimant and the same author (or at least one common author for each element). Published and unpublished works may not be copyrighted together.

Photographers can submit a collection of images on CDs or DVDs, contact sheets, videotape and prints that including a number of images. Duplicate 35 mm slides with cardboard mounts in plastic sleeves can also be submitted as a collection.

The use of a copyright notice has not been required since the the United States adhered to the Berne Convention on March 1, 1989. Attaching a notice is recommended to make certain the public knows the image is protected.

The notice should start with the symbol ©, the word "Copyright," or the abbreviation "Copr."  This should be followed by the date of first publication and the name of the owner.  For example, © 2009 Mary Smith,  is a valid copyright notice. If there is no publication, an author may use a similar notice, including the date when the work left the author's control.

In a publication entitled "Copyright Basics", the copyright Office asserts that, except in certain tightly defined cases, a defendant in a copyright infringement suit cannot claim "innocent infringement"  when the notice appears with a copyrighted work.

Since Jan, 1, 1978, copyright protection has extended from the moment an eligible work is created until 70 years after the author's death.  If there is more than one author, the protection extends until 70 years after the death of the longest surviving author.

If the work is filed under a pseudonym  and the author's real name is not revealed to the Copyright Office, then protection extends 95 years from first publication or 120 years from creation. The shorter period applies.

A number of factors can affect the duration of copyrights established before 1978. The Copyright Office web site should be consulted for guidance about these older copyrights.

Finally, it should be noted that copyrights are considered personal property.  Though Federal law governs infringement, state laws govern matters like inheritance and ownership. The  Copyright Office also notes that states have a say in the transfer of copyrights, terms of contracts involving copyrights and other matters of business.