The Basics of Copyright ©
© 2008 Syl Arena.
UNDERSTANDING WHY OWNING A PHOTOGRAPH IS DIFFERENT THAN OWNING THE RIGHT TO REPRODUCE IT
Copyright is a fundamental American right contained in the original version of our Consitution. Copyright predates other rights that were established by amendments to the Constitution — such as: separation of church and state, protection against unreasonable search and seizure and the right of women to vote. The original language in our Constitution that pertains to copyright is listed in Secion 8 and gives Congress the right “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
Photographs, like music and literature, are intellectual property. They are intangible, yet they can be reproduced in a tangible form — as in the case of a photographic print, a compact disk or a book. Unlike real property (your home for instance) and personal property (the items in your home), you cannot touch intellectual property. Intellectual property is also different than real and personal property in that it can be reproduced easily (many copies can be made). If you hire a carpenter to build a table, he is creating a tangible object that you will own as personal property. The table cannot be easily reproduced – the carpenter must build another one.
A photographic print is a physical object and a type of personal property. However, owning a photographic print, a CD or a book does not mean that you own the right to reproduce it. The creator – the photographer, the songwriter or the author – owns the copyright and controls the right to reproduce the piece.
Copyrights can be sold outright or licensed. Most photographers license specific usage rights to their clients rather than sell the copyright. Rights may be licensed on an exclusive or non-exclusive basis. Rights not specifically licensed to one party on an exclusive basis may be licensed to others.
Many people think that when they hire a photographer that they will own the images or the copyright. Under most circumstances, federal law gives the copyright to the photographer at the moment of creation. The only exceptions are photographs made by employees and photographs made by independent-contractors working under a “work-for-hire” contract. If your contract does not speficially state the words “work-for-hire” then a photographer working as an independent-contractor will own the copyrights to the photographs he creates. It is typical for a contract to specify that certain specific rights will be licensed to the client as part of the deal.
Useful sources of information on copyrights can be found on ASMP’s copyright tutorial and from the US Copyright Office.
