Top 5 Questions from Photographers at Imaging USA 2018 by Franklin Graves
Copyright reform is in full focus at this year’s Imaging USA, the longest-running U.S. photographic convention and expo run by the Professional Photographers of America (“PPA”). Posters, flyers, and even wall-sized vinyl stickers hang everywhere to highlight the recent introduction of the Copyright Alternative in Small-Claims Enforcement Act of 2017 (or the CASE Act of 2017). As a result, the Copyright Alliance booth in the expo hall became a well-traveled destination!
In addition to educating attendees and expanding membership, Copyright Alliance provided “office hours” during two days of the conference. CEO Keith Kupferschmid and local Nashville attorney Franklin Graves were available for the photography community to stop by and ask any and all questions about copyright and related intellectual property and business laws. Many attendees came with similar questions, so we’ve compiled the top 5 with corresponding answers below.
“How do I get a copyright for my photographs?”
This is an excellent question and the one we heard most often during the convention. A copyright is obtained automatically upon the creation of an artistic work that is fixed in a tangible medium of expression. What does that mean? As soon as a photographer snaps a photograph with their DSLR and it is saved to the memory card—there’s a copyright. If a photographer edits the photograph in Adobe® Photoshop or Lightroom software—there’s a copyright. Photographers obtain additional benefits through registration of a copyright with the U.S. Copyright Office; but, registration is not a requirement to have a valid copyright in a work.
For photographers, there are a couple of options when it comes to registration of photographs with the U.S. Copyright Office. Two important considerations for registration include: i) whether a photographer is registering an individual photograph or a collection published photographs; and whether the photographs being registered have been previously published, or if they are unpublished. Other common issues are which version of a photograph should be submitted and how to actually upload and register a collection online.
“What are some ways I can protect my digital photographs that are distributed on the internet?”
Many photographers have a portfolio website showcasing their works, or clients that license and upload photographs to corporate websites. As a result, photographs can end up in public databases, like Google Images, where they are later taken and reused without permission. Many photographers utilize services that, for a fee, crawl the internet looking for matching images. One popular example is ImageRights International.
Images may also be used without permission if a client misunderstands the terms of a license or the license has expired. In these cases, it’s best to maintain accurate records of all licenses that you grant. Equally important is maintaining a calendar so you can be notified and keep track of expiration dates. This allows you to follow up with a client to negotiate an extension, or manually check to enforce your copyright is being respected.
Again, registration with the U.S. Copyright Office is an important way to protect digital photographs. If you are issuing licenses or otherwise generating revenue on photographs in your portfolio, it may be worth implementing a business strategy for obtaining the additional benefits that federal registration provides.
“What is a small claims court for copyright?”
Attendees of Imaging USA 2018 cannot escape the communications relating to the CASE Act of 2017, a recent bill introduced that aims to help creators and small businesses enforce their copyrights without undertaking the costly litigation expenses that come with current copyright enforcement options. The bill, introduced by Rep. Hakeem Jeffries (D-NY) and Rep. Tom Marino (R-PA), and Reps. Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA), would establish a copyright small claims court within the U.S. Copyright Office and offer an option for photographers to protect their copyright interest in a photograph somewhere in the range of a couple hundred dollars, as opposed to the average cost of $350,000.
You can read more about the proposed bipartisan legislation in Keith’s recent op ed published by The Hill.
“I found someone infringing my photographs and they’re based outside of the United States. What can I do?”
As mentioned above, photographers often distribute their digital collections on the internet. Many attendees stopping by the booth mentioned instances in which they found their photographs being used, without permission, on websites with operators located outside of the United States. Unfortunately, there is not just one “global copyright law” that provides protection to creative works. Language barriers aside, lack of uniform copyright laws and court systems make it difficult to pursue someone that may be infringing your copyright in another country.
It’s best to work with an experienced attorney that can evaluate any potential claims of infringement if you find someone infringing upon your copyright ownership in another country. Some independent research can be done by checking out “International Copyright Relations of the United States – Circular 38a” published by the U.S. Copyright Office. Circular 38a provides information regarding international treaties and conventions which may provide a means of expanding copyright protection you have in the U.S.
“Can I copyright my photography company’s logo?”
There were many variations on this question, but, ultimately, all were based on a common misunderstanding of the difference between copyright and trademark. At a basic level, copyright is a collection of rights that are automatically available to the creator of an original work and trademark is a right available to help distinguish the source of goods or services in the marketplace. Check out this article for a more in-depth overview of the difference between a copyright, trademark, and patent.
Didn’t get a chance to stop by the Copyright Alliance booth at Imaging USA 2018 and have questions of your own? Fear not! You can join the Copyright Alliance (for free!) and gain access to all the resources and tools, plus become part of a community of creators just like you. Click here to join.
Franklin Graves is an in-house entertainment, media & technology attorney based in Nashville, TN, and a Young Lawyer Fellow with the American Bar Association’s Section of Intellectual Property Law. He is the founder of Frankly Legal – legal education for internet creators, and a member of the Copyright Alliance. He can be reached at firstname.lastname@example.org.