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Disclaimer: I am not a lawyer, I am a photographer.

All photographs (or for that matter, any work of art - though this is focusing upon photography) are granted copyright protection as soon as the shutter is clicked. The formal wording is when an "original work of authorship" is "fixed in a tangible medium of expression" (in this case film).

An "original work of authorship" means that the creation of the work of art owes its origin to the artist. A photograph is original in that I (or you) took the picture. The work is still original if there were dozens of people lining up to take the same photograph from the same spot. Creativity is a minimal part in the originality requirement (taking a photograph of the moon rising over Half Dome in black and white is still original even though Ansel Adams took the same photograph). Artistic merit plays no role in the definition original work.

Fixed in a tangible medium corresponds to film or in today's day in age it has been extended to encompass digital representations (even though you can't touch a Photoshop file, it is still protected by copyright). The intent behind this is that ideas, facts, and general knowledge are not copyrightable - these are things that are not fixed in a tangible medium.

Much ado has been made about the Digital Millennium Copyright Act. This works for the photographer publishing images on the web. Under the DMCA, it is illegal to remove Copyright Management Information from a work. The DMCA further provides copyright holders with the right to sue for damages when copyright management information is removed from protected works. Copyright Management Information is made up of:

  • Copyright notice (word or symbol) and date
  • Creator's name
  • Copyright holder's name
  • Terms and conditions for use of the work
  • Identifying information about the work
Putting this information in an on-line photograph is key to protecting it. Within a law suit, one avenue of defense is that of the "innocent infringement" or "I didn't know". Placing the copyright information on the photograph removes this defense.

The key part to protecting the images is that of registration. The copyright exists - there is no question of that. However, to sue an infringer it is necessary to register the images. Infringement that takes place prior to registration of the images can only be sued to collect damages - money lost as a result of the sales plus any profit the infringer has earned. With registration of the copyright prior to infringement, attorney fees, court costs, and statutory damages (as high as $100,000) can be collected.

Within the United States, registering a copyrighted piece of work can be done with Form VA (Visual Art) from the Library of Congress. Processing of this form costs $30, however large quantities of photographs can be done for that fee.

Photographers Market 2003

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