I had an interesting conversation this week with a photographer that has been working in the industry for nearly 30 years. He had been accused by another photographer of copyright infringement and had asked for feedback from his peers. I sent a quick reply which he then followed up with a call. I knew that my students always have a lot of misconceptions about copyright but it struck me that if a seasoned professional had questions too, that it might be a good topic to share here. So here it goes – part one of two.
Back when I discussed the ethics of photography, I mentioned that our Founding Fathers laid the groundwork for our existing (US) copyright laws. Here’s what they wrote:
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;
-Article 1, Section 8, Clause 8 of the United States Constitution (1)
They knew that giving innovators a way to earn money from their work would be good for the economy and for society. After all, if someone else could profit from our work without our permission, what incentive would we have for doing our jobs – It would be so much easier just to take what others have made. Of course the laws have changed over time but those changes, by and large, have been to help define how that original principle pertains to our modern society. The bottom line is that if a person creates something, they probably own the copyright to that creation.
Before going forward, it is important to say that an idea cannot be copyrighted – just the execution of that idea. You might have the Next Big Thing in literature all mapped out in your head but until you put those words to paper (okay, or type it into a Word file), you do not own a copyright. Similarly, you might have a fantastic idea for a beautiful photograph, but until you press the shutter on your camera, you do not own the copyright. The important take away here is that nobody can own a copyright for an idea or concept. If you want to protect those things, you’ll need to look into patent law.
So then, how many copyrights do you hold? Zero? 1,000,000? The answer is probably higher than you think. See, every time you write something, make a sculpture, make a painting, take a photograph, et cetera, you are creating a new copyright. Except for when you are not. That’s clear as a bell, right? Let’s work to clarify things a bit.
The basic premise is that when you create something then you own the copyright. This is true for all original work unless you meet one of three conditions. First, if you create something under a ‘Work for Hire” agreement, then the copyright belongs to the person that hired you to create. It can be a little confusing because this doesn’t automatically mean that an employer owns the copyright to all work created by their employees but depending on their work contract, they might. Same goes for independent contractors but in that case, the contractor holds the copyright without question unless the work contract specifically says otherwise. The second way that the copyright you’ve created might belong to someone else is that you give it to them. This can only be done with a legal contract transferring ownership (like a will for example) so you’d definitely know if that pertained to you. The third way is if the work is a derivative work. This is one point where things get confusing.
Derivative work is, as you might have guessed, work that is based on something else. A great example here is fan fiction. There are many, many beloved characters in books, television, movies, etc. that so inspire the imagination, that fans are compelled to write their own stories based on those characters. I already said that newly written stories are protected as soon as they are written BUT those characters and places need to be of your own creation. Love Harry Potter and you wrote about the time Harry found himself in somebody else’s vault at Gringotts? Well, J.K. Rowling now owns the copyright to that story. See, you can write a story about a person getting locked in a bank vault and own the rights, but if you write about characters and places based on someone else’s copyright, then you do not own the copyright.
Confused yet? It only gets worse from here.
Fan fiction is a great example because it is relatively clear. In the above example, J.K. Rowling created an elaborate world in her Harry Potter series. That world is pretty much off limits to everyone unless they have permission from Ms. Rowling. Clear is good. So how does copyright law pertain to derivative works in the visual arts? In a murky way.
In visual arts, a derivative work needs to be substantially different from the original piece to become a newly copyrighted piece belonging to the new creator. The problem is, ‘substantially different’ is a VERY subjective thing to define and of course we all have our own opinions on what that might mean. You probably see where this is going then.
We have had updates to the original copyright law over the years (there have also been treaties so by and large, copyrights are respected across international boundaries). This helps us further define the scope of the original copyright law but there is always room for interpretation. The bottom line is that in order to know with 100% certainty whether or not something runs afoul of the copyright law, it needs to be challenged in a Federal court (copyright law is a Federal law so State courts have no say). Intellectual property attorneys and even adjunct professors (yes, that’s me) can have a pretty good idea about how a case might go, but until a judge decides a case (and perhaps the case goes through appeals), we can’t know for certain if a copyright infringement claim has any validity.
I’m going to leave it here for the week. Next week, I will talk a little about Fair Use – an oft cited example that people use when they try to get around using someone else’s work. I’ll also share some examples including the recent Ellen DeGeneres Academy Awards group selfie and the monkey selfie.
Oh, and I know you are wondering about the photographer mentioned above so I’ll give you one example today. In my opinion, there is VERY little chance that the accusing photographer’s claim had any validity. Click here and scroll down to the second photo entitled Pachliopta Kotzebuea to see the photograph created by the long time pro. He took a photograph of the butterfly and wildflower then used a stock image as an overlay to give a terrarium vibe to the image. Now click here to see the work by the photographer making the copyright infringement claim. You can see she has an entirely different photograph of butterflies given the same treatment with the stock photograph. While she could have made her own overlay image that no one else could use as an overlay, she instead used a readily available image that everyone is welcome to license (and the original creator owns the copyright to that image anyway). She’s mad because she has a photo of butterflies that she used with the stock photograph and she is asserting (essentially) that she now has control over all images of butterfly images made to look like they are in a terrarium. She’s dead wrong because as I’ve already said, it’s not possible to copyright an idea.
(1) You can learn all about the United States Constitution at http://press-pubs.uchicago.edu/founders/tocs/toc.html