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August 19, 2024

Photographers’ Rights: Navigating Copyright Realities (Webinar Recap)

by Rachel Kim

To mark World Photography Day in August, the Copyright Alliance hosted a webinar titled Photographers’ Rights: Navigating Copyright Realities. Panelists included Alicia Calzada, Deputy General Counsel for the National Press Photographers Association (NPPA); Tom Maddrey, Chief Legal Officer & Head of National Content and Education, American Society of Media Photographers (ASMP); and David Trust, CEO, Professional Photographers of America (PPA).

During our World Photography Day event, our panel of experts explored the landscape of copyright law as it applies to photographers. Here are some key takeaways from the webinar:

Panelist Alicia Calzada walked photographers through some foundational copyright concepts, including copyright ownership. After explaining that copyright protections are automatic once a work is created and “fixed in a tangible medium,” Calzada then explained various ownership situations for photographers. She stressed that because copyright ownership transfers are worked out through a contract, it is important for photographers to read their contracts carefully to manage client relationships and expectations and to provide clarity on ownership issues. Lastly, Calzada highlighted that owning the copyright did not mean a photographer had to register the copyright, but that there are many benefits to registering with the U.S. Copyright Office, as doing so assists a photographer with enforcing their copyrights.

Next, panelist, Tom Maddrey talked about some key legal concepts that photographers should understand. He pointed out that photographers should understand that they already have rights even before registering a copyright, as copyright protections are automatic upon creation of the image. But, in order to enforce the copyright, a copyright registration is needed. 

He highlighted that while filling out a registration application, there may be legal concepts that photographers are encountering for the first time, or even when a photographer is determining which registration form to fill out. On copyright ownership issues, Maddrey noted that if a photograph is considered a work-made-for-hire, the registration form should not list the photographer as the owner of the copyright—further highlighting the need for photographers to read their contracts carefully and really understand copyright ownership issues. Maddrey also stated that the trickiest legal concept that photographers have to consider is whether their images are published or unpublished, as defined by U.S. copyright law. He explained that, in a nutshell, the difference between unpublished and published works largely depends on whether the photographs are being distributed into the world for purposes of further distribution or display.

However, he assured everyone that, despite the fact some of these legal considerations may be tough to determine for photographers (and even for lawyers), a Supreme Court case held that a copyright registration will not be invalidated based on an applicant’s good faith mistake made on the application. This gives photographers some latitude as they make their best effort in filling out a copyright registration application.

Photography Licensing Models

Following the discussion of copyright ownership and registration, panelist David Trust provided an overview of various licensing models. Trust noted that a royalty free model allows consumers to pay a one-time fee to use the photograph in a variety of ways under certain guidelines and terms. He explained that many PPA members use this model, as it allows them to customize the license according to their clients’ needs. He also noted the differences between non-exclusive and exclusive licenses. Some licensing models build in a grant of exclusive rights to the buyer, which means that the rights to the photograph cannot be licensed to anyone else. On the flip side, a license for non-exclusive rights allows the photographer to license the same image to multiple clients simultaneously. Trust lastly noted that one-time use licenses are also an option, particularly for editorial and commercial use. He highlighted that the variety of licensing models reflect the diversity of types of photographers and their unique needs, and that the U.S. needs a registration system that is flexible and adaptive to these needs. Calzada agreed, noting that a high-volume creator, like most photographers who create thousands of images a day, find registration more challenging than a low-volume creator, such as a novelist who writes a book after two years. Ultimately, the panelists’ discussion highlighted that the flexibility for adaptive and diverse licensing models is possible because of copyright law, but that our systems like the copyright registration system could be more responsive to the unique needs of photographers.

The panelists then discussed different ways photographers could enforce their copyrights when their works are infringed. Maddrey raised the fact that the new small claims copyright tribunal, the Copyright Claims Board (CCB), was a big win and necessary enforcement mechanism for creators. He noted that while the CCB is relatively new and can be improved, the small claims system has been beneficial for creators’ enforcement efforts as it is a less complex and expensive process than suing in federal court.

Calzada agreed that the CCB was a great new enforcement method for photographers looking for a more streamlined process and results in possibly quicker resolutions of infringement claims. She also pointed out that the notice-and-takedown system under the Digital Millennium Copyright Act (DMCA), while not a perfect solution, is another important enforcement tool for photographers. Calzada noted that filing a lawsuit in federal court was another enforcement option but that this process could be time-consuming and expensive. She also reiterated that copyright registration is key when considering whether to file a lawsuit because it is a prerequisite for filing but also because the photographer can collect statutory damages. Lastly, Calzada noted that there are various enforcement services and companies that will find infringements and help with monitoring photographers’ works on the internet.

The panelists then discussed current, big copyright challenges facing photographers. Trust first pointed out that the creation of the CCB was a tremendously helpful new tool for creators and photographers who dealt with the challenge of bringing their claims to federal court. He then stated that the biggest copyright challenges facing photographers stem from an outdated copyright registration system. Trust explained that because photographers are often high-volume creators, they find that the copyright registration system’s requirements (like distinguishing between published and unpublished works or deposit copy requirements) are impractical and unworkable for their creative workflow and businesses. He emphasized that if registration continues to be a prerequisite for photographers to fully enjoy the benefits of their Constitutional right, the system must be updated and work for photographers.

Maddrey agreed that modernization of the copyright registration system was necessary to break down barriers hampering photographers’ abilities to register their works. He noted that specific changes including subscription-based options or allowing for APIs for more streamlined registration are some aspects that photographer groups are advocating for. 

Calzada agreed with Trust on the importance of viewing copyright as an engine of free expression that enables people to create for a living, contribute to the cultural fabric, tell stories, and beautify our world. In terms of copyright challenges, she stressed that photographers need to closely work on and examine their contracts to ensure copyright is adequately addressed. Calzada also noted that photographers should also pay close attention to discussions happening in various states and federal labor departments on redefining the scope of employment, which could have effects on copyright ownership and contract issues.

Focusing more specifically on copyright challenges posed by generative AI technologies, the panelists addressed a host of issues photographers face in the proliferation of generative AI technologies.

Trust first clarified that while creators are not opposed to AI technologies, the fact is that generative AI companies have stolen from photographers to create products that can generate synthetic images that displace those stolen, creative works. He highlighted that with a deluge of synthetic AI-generated works, “color goes out of our world.” Trust emphasized that just because harms to the creative community have occurred, it does not mean those harms won’t be addressed, and that AI companies must be held accountable.

Calzada noted that while photojournalists generally do not use generative AI for their work, the biggest overall challenge posed by generative AI concerns informational, ethical, and reputational harms arising from deepfakes and other images with AI generated elements.

Maddrey stressed that photographers need to ensure that their clients are on the same page about the use of generative AI tools in the creative process and that clients are being educated on AI copyright issues. He also noted that it is important to address AI issues within contracts with clients. For example, he noted that the U.S. Copyright Office’s registration guidance states that AI-generated works cannot be registered and that for works with AI-generated elements, an applicant must disclose certain AI elements. Additionally, under the guidance, certain registration forms, like the group registration forms for photographs, cannot be used to register works with AI elements that need to be disclosed.

The panel concluded with all panelists sharing ways photographers can stay up to date on copyright law issues and news so they can adapt their businesses accordingly. Photographers can stay up to date on photography advocacy issues, workshops, and other resources shared by the American Society of Media Photographers, National Press Photographers Association, or Professional Photographers of America.

For additional resources on copyright law for photographers, check out the Copyright Alliance’s Photography Industry page. And, sign up for free to be a Copyright Alliance Creator Member to gain access to our monthly creator newsletter and other resources to help you stay informed on copyright law news.

Watch the Full Photography Webinar Recording Today

Photographers’ Rights: Navigating Copyright Realities

Thank you to our cohosts for supporting this event:

If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!

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