Copyright Basics published in Imprints, Fall 2009

On January 8, 2009, Andrew Berger, joined by Nancy Wolff, explained to a large audience of PWP members at Pratt Institute some copyright basics. A summary of Andrew’s presentation appears below.

What are the Qualifications for Copyright?

Copyright protects “original works of authorship,” such as photographs, whether or no published. But the photograph must be fixed in a tangible medium such as on paper or on a computer’s hard drive. Originality requires independent creation, not novelty. To encourage the creation of the widest variety of creative expressions, courts will protect a photograph even though it differs slightly from others.

To qualify for copyright protection, there is no aesthetic threshold. The photograph must only reflect a minimal level of creativity.

What Does Copyright Protect

A copyright protect the expressions of ideas, not the ideas themselves. Courts have long struggled to draw the illusive boundary between idea and expression. Drawing that boundary is particularly difficult with photographs because every observer is likely to have a different interpretation of the idea depicted by the photograph. In photographs, unprotected ideas include line, color, and the subject matter depicted.

Protected elements comprise those in the photograph’s composition including: treatment and arrangement of a subject; light and shade; suggesting and evoking the desired expression; the particular lighting and resulting tone of the subjects depicted; angle; perspective; and determining the precise time of day a work is created.

Registration

Once a photograph displaying a minimum level of creativity is fixed in a tangible medium, copyright protects it. But the photographer should register the photograph with the Copyright Office, especially if the photograph has substantial market value. You register by submitting a written or online application and required fee to the Copyright Office ($35 for online registration; $50 for using fill-in Form CO and $65 for a paper application). For additional help in filling out the registration form, go to the Copyright Office’s website at http://www.copyright.gov or call their helpline: (202) 707-5959.

What is a Timely Registration?

A “timely” registration will entitle the creator of the photograph to sue for what are called statutory damages and possibly attorneys’ fees, if the photograph is infringed. The prospect of recovering statutory damages and attorneys’ fees is a useful bargaining club in persuading an infringer to settle. Your registration will be timely and qualify for statutory damages if you made it before the work was infringed. If your photograph was infringed, you can still timely register if the registration is made within 3 months of the work’s initial publication, which is defined as its distribution to the public.

What Amounts of Statutory Damages Are Available?

There are a range of statutory damages set by Congress based on the level of blameworthiness of the defendant-infringer. If the judge or jury determines that the infringement was willful, statutory damages can be set from $750 up to $150,000 for each work infringed. Courts will find a defendant willful if you show the defendant knew its use of your photograph was infringing or if the defendant acted with reckless disregard for your owner’s rights. If you fail to prove that the infringement was “willful,” you can be awarded statutory damages of “not less than $750 or more than $30,000” per work infringed. If, as is rarely the case, the infringer demonstrates that it committed the infringement innocently, the infringer can be assessed statutory damages of “not less than $200” per work infringed.

What Damages Can You Recover if the Registration is Untimely

If the registration is untimely, you will be entitled to recover what are called your actual damages and whatever lost profits resulted from the infringement. Your actual damage will be the lost license fee the infringer would have paid if the infringer had instead negotiated with you before using your photograph. A lost license fee may be small ($100-$200) depending on a number of factors, including the market value of the work infringed compared with up to $150,000 for each work willfully infringed. Further, it may be difficult to prove the infringer’s profits arising from the infringement, especially if your work is only one of many included in an infringing product.

What Rights Do You Have as a Copyright Owner?

You can copy the photograph, publicly display it, distribute it, prepare what are called derivative works from the photograph or license any or all of these rights to others to do the same.

Who Owns the Copyright?

You do as the creator of the photograph unless you transfer the copyright to another or the photograph is a work for hire. The photograph will be a work for hire if you created it as an employee within the scope of your employment or you agreed in writing with the person commissioning you to create the photograph that it is a work for hire.

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