Since copyright of a photo is protected for 70 years after the death of the photographer it is important to note that copyright is considered property. “A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of interstate succession” (Library of Congress Copyright Office, 2003, p. 34). It is important to note that since copyrighted material can be considered personal property, that some state laws and regulations will need to be considered. Each state has different laws concerning this.
Copyright does expire. Normally a copyright is effective during the creator’s life plus 70 years after their death. Hired work is “95 years from publication or 120 years from creation, whichever is shorter” (Library of Congress Copyright Office, 2003, p. 30). Once a copyright expires the work will then be considered public domain and can be used by anyone. As always, proper credit should be given.
Many early photographs are now considered public domain. For example, the photographs of the Civil War are public domain. Considering that the work is copyrighted on the day of the photograph was taken and the expiration of 70 years after the creator’s death, it is safe to say these are public domain. Of course, it is always best to verify the assumption before commercial use.
Copyright is effective at the time the content is created. When a picture is taken, the copyright holder then owns the copyright to that picture at the time it is taken. For every camera click or beep a new copyright is created. The Copyright Office states: “A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation” (Library of Congress Copyright Office, 2003, p. 30). This is true only if the work was not for hire, the person(s) who hired the photographer would be considered the copyright holder of the work at the time of creation.
For example, vacation photos could be considered copyrighted by the lucky vacationer. Those beautiful beach sunset photos that neighbors love to show off can be considered copyrighted on the evening it was taken.
There are some limitations to copyright. One limitation is “fair use”. Under the “fair use” clause someone is allowed to use copyright material if it is not used commercially, amount used, what type of copyright material is being used and the “effect of the use upon the potential market for or value of the copyrighted work” (Library of Congress Copyright Office, 2008, p. 21).
For an average photographer this fair use clause allows them to snap tourist pictures without worry of being sued by the copyright holder. With the example of the Eiffel Tower, a tourist can photograph the tower at night to show friends and family, but cannot publish that photography without prior approval. This is also true when publishing to a website such as Flickr. When publishing to photo sharing website, they will not allow a photographer to publish pictures that will violate copyright. Always be aware what pictures you are and are not allowed to publish on websites.
Copyright information can be searched on the Unites States Copyright Office’s website. Items can be searched by title, name, keyword and several other criteria. This is a good starting point to determine if something photographed is copyrighted. Because the United States does not require works to be registered with the copyright office to be copyrighted, a work not shown does not constitute that it is public domain.
For an average photographer, this is not as important as it is for a professional photographer wishing to sell their works. Commercial use of copyrighted material is prohibited by law, but for personal use there are some limitations.
Many things can be copyrighted. Most things that can be created physically can be copyrighted. These include books, photography, art, and music. There doesn’t need to be a physical copy of the item to be copyrighted. Digital books and software, among other things, can also be copyrighted.
When doing street photography, it is important to pay close attention to buildings and decorations. Some structures can be considered copyrighted, but also the decorations of the buildings or structures. For example: The Eiffel Tower is considered to be public domain, yet the light display shown at night is copyrighted by the company that created it. A photographer can photograph the Eiffel Tower during the day and sell the photograph, but they cannot photograph it at night for commercial use.
Other things to consider when doing street photography are the number of copyrighted or trademarked symbols and logos that may be present. Many delivery vehicles, buildings, signs and other displays can be copyrighted or trademarked and cannot be part of a commercial photograph. One exception is for art or editorial use.
This is part one of multiple posts on copyright and photographers. As a photographer you need to know your rights and the rights of others.
Copyright is legal protection to copyright holders, for example photographers, by the United States government. According to the U.S. Copyright Office (2003), “Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of ‘original works of authorship’, including literary, dramatic, musical, artistic, and certain other intellectual works” (p. 5).
In the case of photography, the photographer is the copyright holder and the photography created by them is protected from illegal distribution and use. One exception is when a photographer is hired to do a photo shoot. The person(s) who hired the photographer is now considered the copyright holder. For example, wedding photos are not owned by the photographer, but by the person(s) who hired the photographer. This may not necessarily be the bride and groom. In this case, if a photographer wishes to sell the wedding photos to other people or use the photos as part of the photographer’s portfolio, they will need written permission from the copyright holder(s).
U.S. copyright protection is only legal within the United States and countries that have treaties with the United States at the time of the creation of the work. Other country’s laws may not give the same protection as those within the United States. This means that even though photography is copyrighted within the United States, it does not mean that other countries will uphold that copyright. “There is no such things as an ‘international copyright’” (U.S. Copyright Office, 2003, p. 36).
The reverse is also true. When the content is created, in this case a photograph, within another country depending on certain criteria there may not be a copyright within the United States. On the date the photo is taken if there isn’t an existing treaty on or within 30 days and the photographer is not a U.S. citizen, and then there is a possibility of there not being a legal copyright within the United States. There is always the possibility of the material (photography, book, etc.) being retroactively given copyright. The best rule of thumb when dealing with these kinds of work is to always get permission and always give credit.