Frequently Asked Questions: Practical Concerns
See also Frequently Asked Questions about Copyrights and Frequently Asked Questions about Registration
My image has not been published. Can I still put a copyright notice on it?
Someone has linked to one of my photos on their web site. Is this legal?
Q: My image has not been published. Can I still put a copyright notice on it?
A: You don’t need to — as soon as your image was fixed in a tangible medium, it was automatically protected by copyright, whether published or not — but it can’t hurt to let others know. Including a copyright notice may also have some legal benefits by putting the world on notice that the material is copyrighted. The standard format applies — © followed by date, followed by copyright holder’s name — although another way of noting that it is not a published work is to write the copyright notice using the following format: “Unpublished work (c) year + copyright holder.”
Q: I’ve sent in an application to register some of my unpublished work. Do I have to wait until I receive the certificate of registration before I am allowed to publish it?
A: No. You do not have to receive your certificate of registration before you publish your work.
Q: I’m self-publishing a small run of a book with some recent images. They’re probably not very commercial, I don’t expect the book to sell well (or at all) and I don’t feel like spending the time or money to copyright them. What is the least I can do?
A: The instant you made each photograph, it received immediate copyright protection. If you wish, you could just put a copyright notice at the front of the book and call it a day, although you don’t even have to do that. You don’t have to register all or any of the images, but if you don’t, you could run into trouble in the future if someone “borrows” and uses one of your photos without your permission.
There is one thing you must do, however: As owner of the copyright of a work published in the United States, you have a legal obligation to deposit with the Copyright Office two (2) complete copies of the best edition of the published work, within three months of publication. The Library of Congress and the Copyright Office consider this mandatory, and they can fine you if this is not done. Submitting these copies does not start the copyright registration process, but it could if you also submit the necessary copyright registration forms and fees along with the deposit.
Q: I have a new client — a potentially important, lucrative addition to my earnings. I’ve just learned that, for the price I’m being paid, the client wants to own the copyright to my images. I am, of course, resisting this, and have tried to steer them towards a licensing agreement, but they’re not budging. What can I do?
A: It is very clear where ASMP stands on this issue: The photographer owns all of the rights and only licenses specifically negotiated usage rights to his/her clients. Ideally, each additional level of usage is granted to the client only upon additional compensation being paid to the photographer. Unless the amount of money the client is offering is so enormous as to be more than what you could possibly ever earn from future licensing — thus making if financially acceptable — we do not support the sale of copyright.
An alternative for widespread image use that still lets you retain the copyright is to offer the client an unlimited license and an agreement that you will not license your work for any competing uses or companies. That way, they get all the freedom they want, and you get to keep the copyright.
You need to sit down with the client and “talk the talk” — but, if you feel strongly about this issue, you also have to be prepared to “walk the walk” … away from the negotiating table. If the latter occurs you should not look back, or kick yourself knowing that somebody else will jump at the chance to have that job. To keep your professional integrity intact, you have to take the position that you can’t be in business with anyone who will so knowingly and willingly place you in such a bad position. How will you be able to trust the client in other matters that will be sure to arise with subsequent dealings? It hurts to say no to any attractive assignment — or, at times, to any assignment. But, in the long run, it often hurts more to say yes. With these points in mind, you should return to your client to discuss the matter again, with the hope that your reasoning will work this time.
Q: I’m putting together a web page to show and promote my work and business. Does putting images up on a web page constitute publication for copyright purposes?
A: What constitutes “publication” for copyright purposes is a difficult question, with very little practical guidance for those things that fall into the vast gray area. Marybeth Peters, the Register of Copyrights, has publicly stated on multiple occasions that her opinion, and the position of her office, is that images uploaded onto a web site in an area that is available to the public for access, constitutes publication of the work. Assuming that this area of your web site isn’t password-protected or otherwise restricted, it is probably safe to take the position that those photographs are published.
There is a also second question to consider: Were any of these images previously published before appearing on your web site (and if so, when) or is this the first publication for all of this work? If none of your images were ever published before, you can register the whole collection in a group registration. If some of the images have been previously published, your best bet is most likely to register the unpublished work as a group, and to deal with the others separately, perhaps individually or perhaps in another group or groups. This gets confusing, and you may want to visit a copyright attorney for guidance in this matter. Further information about registering online works can be found in the Copyright Office’s Circular 66. You will also want to read the information on our Group Registration tutorial section.
Q: How much money can I sue for in a civil copyright lawsuit?
A: If the lawsuit is for a work that has been registered at the Copyright Office, the damages can be quite stiff. A copyright owner may elect to recover statutory damages under Section 504 even if actual damages (such as lost profits) can’t be proved. Statutory damages are amounts set by law. A copyright owner whose work was registered with the U.S. Copyright Office before the infringement (or within three months of publication) can elect to choose statutory damages or actual damages.
Actual damages (also known as compensatory damages) are the dollar amount of any demonstrable loss suffered because of the infringement.
Most copyright owners will choose statutory over actual damages because there is less to prove in order to obtain payment. Statutory damages are set by law at a minimum of $750 and a maximum of $30,000 per infringement, “as the court considers just.” If, for example, the court finds that a defendant infringed on ten photographs with registered copyrights, he may be facing a $300,000 judgment. If the you can prove the infringement was committed willfully, the court has the discretion to increase the damages up to $150,000 per work. Further, the court may determine that the losing party must pay the winner’s costs and attorneys’ fees, under Section 505. On the other hand, if the infringer can prove he was not aware and had no reason to believe the act was an infringement, the court may reduce the award down to $200.
Q: Can two or more people own the copyright to a single work?
A: Yes. It creates joint ownership of the copyright, which can produce problems down the road. Each owner is an equal partner and might be able to make independent negotiations for licensing and might be able to sell or assign their rights independently of the other owner.
Q: Someone has linked to one of my photos on their web site. Is this legal?
A: There are basically two ways in which your photos may appear on someone else’s web site. The first is by someone else actually copying your image file and putting it on their server for display on another site. In most cases, this is blatant copyright infringement, with or without a credit line. In some cases, the alleged infringer might claim this to be fair use, and it may very well be. But it will be up to you to contact them and to inform them that they are violating your copyright.
In the second case, the image file is actually not being copied to another server; someone else’s browser is just being pointed to your server so that the image appears to come from their page. This situation is a little more problematic. Most copyright laws were written before the Internet. Until legislation catches up to the technology, we have to rely on case law for direction, and there isn’t much that exists in this area.
Sample terms that can be used on a web site generally specify the following: “… the images, text and coding on these pages may not be copied to another computer, transmitted, published, reproduced, stored, manipulated, projected, or altered in any way, including and without limitation to any digitization or synthesizing of the images, alone or with any other material, by use of a computer or other electronic means, or any other method or means now or hereafter known, without permission of the creator.”
If you use these terms, infringers may be held liable for “contributory infringement.” A contributory infringer isn’t controlling any copying, but has taken actions solely to cause other people to make allegedly illicit copies for themselves. (This was part of the Napster suit, for example).
If the link showing your photo on someone else’s site is hidden, they are probably violating your copyright. If there is only a link to your photo on another site and a user has to click on this link to view your image, then your copyright has probably not been infringed.
Your next step would be to contact the owner of the page and the Internet host of the page to alert them to the situation and to request that your image, or the link, be removed. Go to our Enforcing Your Rights page for more information.
Q: What if an American photographer gets ripped off by an overseas publisher? What about foreign photographers operating in the U.S. market? Which country’s laws apply?
A: Lawsuits for copyright infringement are always filed in the nation where the infringement occurs. Each nation that has signed the Berne Convention promises to protect the rights of others as well as it protects its own citizens. However, each nation has its own procedures for filing suit and its own rules that govern the damages that might be awarded. (If you are infringed in another country, you will certainly need a local lawyer.) One of the major differences between procedures in the U.S. and other nations has to do with registration.
Very few nations require registration as a condition of suing for infringement; if they have a registration system, it’s designed mainly to support the national licensing agency. For U.S. citizens, this means that satisfying American law is usually all that’s needed to be eligible to file a claim in another country.
Non-U.S. citizens are allowed to register their copyrights in the U.S., and, if they regularly market their photos to U.S. publishers, they probably should make the effort to do so. Whether their copyrights are registered or not, foreign nationals are able (under the Berne Convention) to file infringement suits in U.S. courts. But if they have not registered, they can seek only actual damages. If they have registered, they can seek statutory damages, which reduces their burden of proof.
See also Frequently Asked Questions about Copyrights and Frequently Asked Questions about Registration
More Resources are at The Copyright Office FAQ.