What is Copyright, and How Does it Work?

March 11, 2011 · 1 comment

in Business,News,Resources

Recently I was having lunch with a friend at well-known Thai restaurant, when he picked up the cocktail menu to order himself a refreshing drink. While he was deciding what to order, something caught my eye… My photograph used on the cocktail menu!

I shot the image in 2006 for another client, and I have an Agreement that the copyright on the images I shot belongs to me. Since the image was used without my permission (and therefore illegally) I decided to put on my investigative hat and get to the bottom of this.

First I called a prominent image library, and explained how, where and what size the image was used. The lady gave me the price the image would have cost if they had purchased it legally, and then said to multiply by 300% as the image had been used without permission.

After several phone calls I managed to track down the designer who designed the menu, and when he answered the phone, I asked him if he designed the cocktail menu. When he said he did, I told him that it was a beautiful design, however it is just unfortunate that he used my copyright protected image.

To cut a long story short, the director’s of the company said they would like to do the honorable thing and pay me for the image, and they did.

This got me thinking about how often people illegally use copyright protected images, and that inspired me to write an informative post about copyright, because it pays to be informed. Literally. Ready to get your ducks in a row?

Firstly let me explain the different types of licensing. Please note that I am a photographer, not a lawyer, these descriptions are merely to give you an introduction into Copyright.

Whoever your client may be, it’s always a good idea to define the proper usage and ownership rights of your images in your Contract.

Commercial Rights

Generally speaking, commercial means any attempt designed to create an income, or if used by a commercial entity. Examples of commercial use of a photograph, include brochures, magazines and adverts.

Non-Commercial Rights

This means using photographs for items that are not produced to create an income, or use by individuals or non-corporates. This could include school newsletters, or someone using the photo to make a birthday card for their boyfriend.

Exclusive Photo Rights

The buyer of the photograph has sole privileges to the photo, and no one else can benefit from it. This exclusivity can be defined to a specific market, product sector, or geographical location, which grants you more flexibility. For example, you can sell an image of a sunset with exclusive rights to a travel magazine, but also sell the same image to an agency wishing to use it on a box of chocolates. So you can still re-sell an exclusive rights photograph, but to a different, non-related target market.

Non-Exclusive Rights

This means that one client has a specific set of rights for the use of the photograph, at the same time as another client. The issue with this type of clause is that many companies use this clause to allow them to reprint, distribute, and resell your work on their own.

All Rights

This means that you either permanently, or for a specified amount of time, surrender all rights to the photo.

One Time Use

One Time Use is easy to manage, because the client buying the license can only use the photograph once, for a specific project.

Lease Rights

With Lease Rights, your photograph may only be used for a certain time (or a predefined number of uses), for an agreed amount of exposure.

First Rights

Similar to One Time Rights, the buyer of the photograph pays extra to have the first use of the image.

Transfer Rights

In special circumstances, you can transfer the copyright of your photograph to someone else. Be wary of the small print in client contracts, some of them may have hidden clauses that you are not initially aware of. Also be wary of copyright renewals that transfer the copyright to the client after a period of time.

Electronic / Online Media Rights

Your photos may be included in electronic formats such as CD or DVD, or displayed on an online media website. Consider embedding metadata in your photos.

Print Rights

This means that your photo may only be published with conventional print media.

Serial Rights

This applies to magazines, and means that the magazine is licensing the right to use the photograph in magazine format. So if you sell serial rights to one magazine, you can’t sell licensing rights to another magazine at the same time.

Work For Hire

Your photos belong to your employer, either automatically or as specified in your Employment Contract. If you are employed by a Work For Hire clause, negotiate compensation for surrendering your photography ownership rights.

What is Copyright and how does it work?

Copyright is a form of protection that gives photographers (and other artists) the exclusive right to use and reproduce their works. Generally, the person who creates the work is the owner of the copyright, meaning that independent artists such as photographers own copyright on their work. Copyright gives the creator of the work the power to control if, when, how, and how often the work can be used or copied. Copyright owners can also give others various levels of permission to use their works.

Copyright is not a single right, but more accurately a collection of rights. Any part of the collection can be retained, sold, leased or even given away, at the exclusive discretion of the Copyright Owner.

What is Copyright Violation?

Using or making copies of any work without permission from the Copyright Owner is a violation of the Copyright Act.

For example, if you sell a photo to a company to be used in their brochure, and then they print it in a magazine advert without your permission, that is also a violation of your rights as the Copyright Owner.

What is Infringement?

Using a copyright photo without permission is called Infringement, and can result in stiff fines.

Examples of infringement include:

Use of the whole, or part of the image without permission | Using the image beyond the scope of the license | Adapting or changing the image without permission | Asking another photographer to create an identical image

How can I legally use a copyright photo?

Permission to use a copyright photo is called a License, and must be obtained from the Copyright Owner before using the work. The Licensing Agreement does not need to be a detailed letter, even just adding the License terms onto you Invoice is sufficient, for example “One Time Usage Rights for photo in brochure with print run of 4000 copies, and magazine advert for 12 months – R10 000”

What if my client commissions me to execute their idea, and pays for all expenses including models and specialized equipment, does copyright belong to the client?

No, usually the person who creates the work (presses the shutter button) owns the copyright. However the parties can make agreements transferring the copyright, or creating the photograph in a Work For Hire basis, or Joint Ownership, but it is important to define this from the beginning.

If a photo does not have the word “copyright” on it, it is free to be used?

No, it is far safer to assume that the photo is copyright protected, and can not be copied or reproduced.

If I change a copyright image in image editing software, would this be copyright infringement?

Yes, only the copyright owner may make derivative copies, or give permission to make derivative copies.

What are the damages or penalties for Infringement?

The copyright owner can claim for damages sustained as a result of the infringement, as well as whatever profits the Infringer earned as a result of using the photograph.

Who is responsible when Infringement occurs?

The responsible parties may include:

The person that infringed, even if accidentally | Employees or others who participated in the original infringement | Anyone who published the infringing image, whether they knew or not | Anyone who authorized or encouraged the infringement

Are there circumstances I can use a copyright image without risking infringement?

Yes, copyright images can be used for certain purposes with the concept of Fair Use. This means that teachers making copies for teaching purposes, or newspapers for reporting purposes can use copyright photos.

I found the photo through a Google search. If it’s on the Internet, doesn’t it mean that it is free?

No, and this is what happened in my case above. Just because the photo is on the Internet, that doesn’t mean it’s free. There is a difference between an image being online, and “in the public domain” (the term given to content that is not owned or controlled by anyone). If you save ANY image from Google, there is a warning message, which states, “This image may be subject to copyright”. You still need the correct license to use the image.

So, I hope this has helped you to understand what copyright is, how and why you should respect copyright, and what to do when someone uses one of your images without your permission.

If you would like to learn how to License your photographs easily, and for free, read more here.

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