A photograph or image must meet two criteria to be copyrightable:
• It must be your original work: it must originate with you and show some minimal amount of creativity.
• It must be fixed for at least some period of time in a tangible object, such as film or digital media. It cannot merely be an idea or concept for a photograph.
Artistic merit is not required for copyright protection. If a photograph is attached to a “useful article” such as a plate or t-shirt, the artistic elements receive copyright protection, but the utilitarian aspects of the item may not.
When Does Copyright Protection Begin?
You own the copyright to a photograph as soon as you have taken it. The photograph does not need to be printed or registered with the U.S. Copyright Office to obtain copyright protection.
What Rights Does a Copyright Owner Have?
Copyright is actually a group of rights: the right to display an image or photo, the right to make, sell or distribute copies of it, and the right to create adaptations or “derivative works” based upon the image or photo.
Who Owns the Copyright to a Photograph?
In general, the person who took a photograph owns its copyright. There are instances where someone else may own the copyright to a photograph you took.
• Works Made for Hire. If you took the photograph for your employer as part of your regular job, your employer owns the copyright. If you were hired on a freelance basis to take the photograph – for example, if you were hired to take photographs for a wedding or a website – you own the copyright to the photographs unless you signed a work for hire agreement or an agreement transferring the copyright.
• Transfers of Copyright. Any or all of the rights that make up a copyright can be transferred from one person to another. If you are transferring exclusive rights, this must be done in writing. Nonexclusive rights can be transferred orally.
Types of Photographs and Images that Can Be Copyrighted
• Photographs, prints, and slides
• Digital photographs
• Derivative works – if images are based on other works, you can copyright the new elements that have been added.
Why Should You Register a Copyright?
You don’t have to register your copyright with the U.S. Copyright Office to receive copyright protection, but registration has several important advantages:
• Registration creates a record of your copyright ownership.
• You must register your copyright before you can file a lawsuit for copyright infringement.
• If you register your copyright within three months of publication of your photo or before a copyright infringement occurs, you can recover additional monetary damages and attorneys fees in a copyright infringement lawsuit. These damages, called statutory damages, allow you to recover money without having to prove the amount of your financial loss or the amount of profit an infringer earned.
Registration Procedures and Deposit Requirements
Photographs can be registered individually or as a collection of published or unpublished photographs. To register a copyright, you must deposit three things with the U.S. Copyright Office:
• A completed application form. This may be done electronically or by mailing a paper application. Electronic applications are processed more quickly than paper applications.
• A separate filing fee for online applications and paper applications.
• A nonrefundable copy or copies of your work. The copyright office website has details about the number and type of copies you must submit.