When To Update Photography Copyright
Full Question: Photographers are regularly modifying old photographs, so at what point would a photograph need to be re-registered?
- A photographer adjusts the image’s color to sepia tone?
- A photographer removes a reflection of light, and then sends the new final image to a client for publication?
- A photographer retouches an image to beautify it (correct skin, darken or lighten areas, etc.), but does not remove any element from the image?
- A photographer removes an item from a photograph, like a bicycle from the foreground of the image?
- A photographer arranges multiple original images into a new, final composited image?
To qualify as a derivative work, an author must add sufficient creativity to a preexisting work in a manner that recasts, transforms, or adapts the preexisting work to create a new work of authorship. Where minimal changes are made to a preexisting work, the changes may not constitute sufficient creative authorship. Moreover, the rights in the derivative work extend only to the new material contributed by the author. Thus, as a practical matter, it may be more helpful to rephrase these questions as follows:
- Do I need to protect the changes alone?
- Do the changes I’ve made have sufficient creativity, and perhaps enough independent value, that someone would be likely to infringe only those additions?
If the photographer of the preexisting photograph is the same person that is modifying the color, removing blemishes, retouching for reflection or skin tone, or making other changes described above, the benefit of registering the modified image may be marginal. The author or copyright owner of the underlying photograph may bring an infringement action against any person who infringes the adapted image if portions of the preexisting photograph were also infringed, e.g., reproduced, adapted, distributed, or publicly displayed. The most important point is to register the photograph itself as early as possible. Seeking a registration while the work is unpublished and before it has been distributed to anyone, including publishers, places the photographer in the best position legally. It also helps prevent anyone else from recreating, transforming, or adapting your work unlawfully.
In the case of minor cosmetic alterations, the Office likely will question the sufficiency of the new authorship. In contrast, manipulating an image in a sufficiently creative manner, such as digitally re-arranging or re-sizing objects in the photograph, would be more likely to be found registerable by the Office. Similarly, selecting, coordinating, or arranging a number of photographs in such a way that the resulting work as a whole constitutes an original photo-collage would also be registrable.
Rob Kasunic, Director of Registration Policy and Practices at the U.S. Copyright Office