This article is written by Nishant Gulyani who is pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from lawSikho.com.

Introduction

Every one of you must have copied someone else’s work from the internet once in your life without knowing that it can amount to copyright infringement depending on your purpose for using the original work. A copyright is a kind of intellectual property that protects the original artistic and literary works, including songs, books, movies, and even photographs. In the context of photographs, any person who clicks a particular photo is the owner of its copyright at the moment that photograph is captured by him.

This article will focus on the provisions under the DMCA recognizing and granting copyright protection to photographs. You will learn about the exclusive rights you have as a photographer to protect your photograph from being copied without your authorization, along with exceptions to those rights.

You will also learn about the process of registering your photograph with the US Copyright Office and the benefits of such registration under the Copyright Laws of the United States.

Photography and copyright law

As per 17 U.S.C. § 102(a), copyright protection is given to the creators of artistic, literary, musical, dramatic, pictorial, graphic, and sculptural works to protect their creativity. Pictorial, graphic, and sculptural works include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints, and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans (17 U.S.C. § 101). So, photographs are considered as pictorial works by an artist and are protected under 17 U.S.C. § 102 (a).

What can be protected?

A copyright protects only the expression of an idea and not the idea itself. For example, you can’t protect your idea of a boy and girl getting married while facing objections from their family, but you can protect your movie on the same subject. The point here is that the way you express your idea can be granted protection under copyright laws, but the idea itself can’t be protected. 

In the context of photography, anyone can think of clicking a photograph of a sunset or sunrise on a beach, and this idea of clicking such a photograph can’t be protected under copyright laws. But the moment you click such a photograph, you own the copyright over such a photograph and no one else can use that photograph of yours without your authorization. 

The main reason behind this is that a monopoly over such a general idea, i.e., clicking a sunset photograph, can’t be given to a single individual. The copyright protection laws aim to protect the creativity of individuals and not their ideas. 

A photographer should use different poses, models, objects, camera angles, and lightning in his photographs to make them unique and more creative, because the more creative and original a photograph is, the more protection it is given from duplicate copies.

Rights of a photographer 

A photographer clicks the photograph and is the owner of its copyright. (except in work-made-for-hire) Here are the exclusive rights are given to the photographer to protect his/her photograph under the Copyright laws of the United States of America:

• The right to reproduce the photograph, 
• The right to distribute copies of the photograph,
• The right to display a photograph in public,
• The right to create derivative works out of the photograph.

Limitations on these rights

Fair Use

As per 17 U.S.C. § 107, fair use allows any third person to use the copyrighted work without any authorization from the owner of the work. The most common examples of fair use are:

• For research purposes.
• For news reporting.
• For teaching purposes.
• To review or criticize the work.
• For making a Parody of the original work.

Some factors should be taken into consideration to check whether an act falls under the purview of fair use or not:

Purpose – The purpose for which the work is used, i.e. for non-profit or educational purposes, or commercial purposes.

Effect – The effect of the use on the original work, i.e. whether a significant loss has been caused to the market for the original work or whether it has confused the consumers.

Nature – The nature of the copyrighted work-Whether the original work is creative or is just based on facts.

Amount – Whether all the work has been copied or just a part of it that has been used by a third person. 

Official Works 

Official works (17 U.S.C. § 102 (a) ) ,it implies the work created by the employees of the United States Government in the course of their employment. For example, Government circulars or maps of the Government. These works are assumed to be in the public domain and can be obtained or used by any individual without infringing someone’s copyright. 

License 

The owner of the copyright can grant licenses to third parties to use their copyrighted work for specific purposes. For example, the photographer can grant a license to a publisher or a producer allowing the use of his photograph as a book cover or as a movie poster. 

Creative Commons

It is a kind of license given by the photographer to use the image under certain conditions, such as giving him credit when using the image. Permission can be sought from the photographer by email, and if he grants permission to use the photo, it will be termed as creative commons. 

Do you need to register your work to enjoy these rights?

No, registering your work is not mandatory but is a voluntary practice that is helpful if you have to file a copyright infringement suit. It means that you don’t need to register your work with the US Copyright Office to enjoy these exclusive rights. These rights are granted to the owner of the copyright at the moment his work is fixed in a tangible medium, i.e., the moment he clicks the photograph.

Benefits of registration

However, it’s not a compulsion to get your work registered, but it provides you with certain benefits that are enough to encourage you to go for the registration of your work with the US Copyright office:

• Registering your work creates a written record of your work in the books of the Copyright office. A written record helps you establish the prior owner of the work in case of any dispute.
• Registration is necessary before the filing of any copyright infringement suit. Although it is necessary to register your work before filing a suit against an infringer, it is not necessary to register your work before the infringement. However, registering your copyright before it is infringed gives you extra protection. 
• If you register your work with the US Copyright Office before the infringement, you are eligible to claim statutory damages. But if you register after the infringement, you can only claim actual damages.

Registration process

Photographs can be registered through the US Copyright office website’s photograph section:

• First, you need to file the application form available on the website. You can also mail the application form, but the forms filed through the Copyright office website are processed faster in comparison to the mailed applications. (17 U.S.C. § 409) 
• After submitting the application form, separate filing fees have to be paid. (17 U.S.C. § 708)
• With the application form, you are required to submit a non-refundable copy or copies of your work that needs to be registered. (17 U.S.C. § 408)

You can access all the details regarding registration here.

Landmark Cases

Harney vs. Sony Pictures Television, Inc. 

Citation– Harney vs. Sony Pictures Television, Inc. 

Facts– Plaintiff was a freelance photographer who clicked a photograph of a man with his daughter sitting on his shoulders. That image was published in a newspaper by the FBI in an abduction case, and Sony Pictures (Respondent) in one of their movie posters used a photograph with a similar pose and composition as in the plaintiff’s photograph.

Issue – Whether Sony Pictures has committed copyright infringement or not?

Rules/Provisions – 17 U.S.C. § 107 states whether an unauthorized use of a copyrighted work is a fair use or not depends on various factors including the amount and substantiality of the portion used in relation to the copyrighted work as a whole.

Judgment – Sony Pictures Television has not infringed upon the plaintiff’s copyright as there were no substantial similarities between both the photographs. 

Analysis – In the given case, the parts of the photograph that were protected by copyright were the framing, tone, and composition, and not the idea of a daughter sitting on her father’s shoulders. This idea of the photograph is a factual matter, just like a photograph of a sunrise on a beach. What can be protected is the creative aspects of the photograph that make it unique and hence more protectable under copyright laws. 

Rogers Vs. Koons

Citation-Rogers Vs. Koons

Facts – Art Rogers ( plaintiff)  took a picture of a couple carrying a row of puppies and sold it for use on invitations and other merchandise. Jeff Koons (Respondent) was a globally renowned artist who utilized the plaintiff’s photograph to build a group of statues. 

Issue – Whether these statutes made by the respondent fall under the category of fair use (parody) or derivative work (exclusive right of the copyright owner)?

Rules/Provisions – 17 U.S.C. § 107 states that the fair use of a copyrighted work for purposes such as criticism, comment, or parody is not an infringement of copyright.

Judgment – The work of the respondent didn’t fall under the scope of fair use and was considered to be deceptively similar to the original photograph of the plaintiff.

Analysis – Here, statutes made by the respondent were so similar to the original photograph that a “normal person” would be able to detect the duplicate. Hence, it can be termed as a  derivative use of the original photograph, which is one of the exclusive rights available to the owner of the copyright. 

Suggestions

• Filling a lawsuit for copyright infringement is a lengthy and expensive process. Moreover, the alternatives to a copyright infringement suit are cease & desist letters and DMCA Takedown notices that, in the end, lead to a lawsuit only.
  The rights and powers granted under a DMCA takedown notice should be strengthened and a procedure should be made to solve copyright disputes in an online mode by adding evidence stages in the form of an evidence affidavit after the filing of the takedown notice and a counter-notice.
• The doctrine of fair use is very vague and blurred and allows various big companies to make unauthorized use of an individual artist’s work with the help of highly skilled lawyers. So, it should be simplified and made clear to protect and stimulate the creativity of individual artists who tend to let go of such infringements due to the inability to prove the copying of their content.

Conclusion

Copyright laws aim to protect the creativity of individuals by granting protection to artistic, literary, pictorial, graphical, and even architectural works. Photographs are protected under graphical work, but as the aim of copyright protection is to protect creativity, the copyright in the photograph doesn’t protect the general elements in the photograph. 

The copyright in a photograph safeguards the photographer’s artistic decisions, such as subject matter selection, subject (s) positioning, camera lens selection, camera location, image angle, lighting, and timing. 

The above article describes the relationship between photography and US Copyright laws, the rights provided to the photographer along with the limitations on these rights. We conclude that registering a copyright is not mandatory to enjoy exclusive rights, but only a legal formality having several other benefits, like the ability to recover statutory damages and attorney fees. 

FAQ’s

What is a work-made-for-hire?

It is work done by an employee in the course of his/her employment. For example, a news channel appoints a photographer to click photos for the channel. Here, the owner of the photographs clicked by the photographer will be the news channel and not the photographer.

What are Statutory and Actual damages?

Actual damages are basically the market value of the infringed work that will be awarded if you succeed in the copyright infringement suit. (17 U.S.C. § 504(b))

Statutory damages, on the other hand, are termed as the damages calculated by the law in addition to the actual damages. It includes extra monetary damages such as attorney fees and the profits earned by the infringer by using the original work. (17 U.S.C. § 504(c))

References 

1. https://www.ffpp.org/copyright-law-basics-photography-united-states-perspective/
2. What is Copyright?, Copyright.gov, https://www.copyright.gov/what-is-copyright/
3. Format Team, The Essential guide to Photography and Copyright Law, Format, (8 January 2016), https://www.format.com/magazine/resources/photography/photography-copyright-law-guide
4. Copyright law: Understanding your Rights as a Photographer, Professional Photographers of America, (2 June 2021), https://www.ppa.com/articles/copyright-law-your-rights-as-a-photographer
5. Rachel Brenke, Photography Copyright Laws, TheLawTog, https://thelawtog.com/copyright-laws-for-photographers/
6. Significance: Rogers V. Koons, Artist Rights, http://www.artistrights.info/rogers-v-koons
7. Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. 2013), Justia, https://law.justia.com/cases/federal/appellate-courts/ca1/11-1760/11-1760-2013-01-07.html
8. Circular 42, Copyright Registration of Photographs, Copyright.gov, https://www.copyright.gov/circs/circ42.pdf

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