November 21, 2008

Destroying Copyright Myths

I am frankly shocked to learn that most photographers don’t really have a clue when it comes to their rights under Copyright law.

I am NOT shocked to learn that most of the online community is equally ill-informed.

To help set the record straight, I am publishing the information that I personally rely on when making decisions about Copyright. I am not giving legal advice. I am sharing the information that I have received from my attorneys. You should contact a licensed attorney if you have any questions. To that end, I’ll close comments on this post.

The goal of this post is to clear up misconceptions about Copyright law. This is NOT a request for a debate on Copyright. Copyright offers serious legal protection to photographers, and it does so regardless of whether or not people agree with the concept.

I should also note this post covers only U.S. Copyright laws.

As photographers, we should all be aware of Copyright protection. Whether or not you sell your images, if you take the time to invest in gear, learn a craft, spend time and money pursuing that craft making images, then you should be concerned about protecting those images from those who would use them in ways you might find inappropriate or offensive.

Myth #1.

If you don’t make money for a photograph you lift off the Web, the photographer can’t sue you for Copyright infringement.

This is false.

While whether or not you profit from an image you use without the photographer’s permission impacts the damages you will pay if found guilty, this fact has absolutely nothing to do with whether or not you infringed the photographer’s Copyright.

Myth #2

The photographer didn’t provide a Copyright notice on his photo so I can use it without his/her permission.

This is false.

Since 1989, any photograph has been Copyright protected whether or not it includes a notice. Again, if no notice was provided, it MIGHT reduce the damages you pay for infringement, but it doesn’t act as a defense against the infringement.

Myth #3

The photographer put the image online so anyone is free to use it.

This is false.

Unless the photographer EXPLICITLY and EXPRESSLY places the image into the public domain, it enjoys Copyright protection.

Myth #4

I can use any photograph I find on the Web as long as I claim it’s “fair use.”

This is false.

Fair use is a complex legal doctrine meant to allow certain valuable social purposes such as education, news reporting, commentary or parody. If you’re using an image to illustrate your own point, if you’re republishing it – particularly for profit; if you use it to sell something, or use it in a way that harm’s the commercial value of the work or that changes or takes advantage of the Copyright holder’s expression of an idea, you can’t successfully claim “fair use.”

This is a simplistic response. I’d need 100 pages to document everything you need to know to fully understand “fair use.” In short, it’s an over-used defense that is misunderstood, and in cases I’ve prosecuted, 100% unsuccessful.

Myth #5

Copyright infringement is not a crime.

This is false.

Under Title 17 of the U.S. code, some Copyright violations are criminal in nature and can result in severe criminal penalties. For more information on this go to: http://www.copyright.gov/title17/92chap5.html

Myth #6

If you infringe on a photographer’s Copyrights, they should be grateful for the free publicity. It doesn’t hurt them – it helps them.

This is false.

Don’t rationalize that you are helping the Copyright holder. It’s up to the photographer to decide whether or not they want free publicity. While there may indeed be value to the exposure gained by infringement, there’s also the chance of harm. If a photographer’s work is used in ways he/she disagrees with, for instance to illustrate a political point they don’t like, or to promote pornography or hate speech, this could be very damaging to the photographer’s reputation. If the photograph is improperly labeled, captioned or displayed, it could also harm the photographer’s reputation. The photographer may also want to enjoy financial benefits that often attach to exclusive distribution or performance of Copyrighted work.

If someone really thinks that their publication of your photography is helpful, they should offer you a chance to accept or reject that help. Failure to do so, absent a legal exception for something like “fair use,” is a Copyright violation.

This is just the tip of the iceberg. I could have addressed the more common myths like “Everyone does it,” or “I didn’t know it was illegal,” but frankly, I think that is all bunk. People know right from wrong. They know when they’re stealing and when they are not.

If you are a photographer, I urge you to learn everything you can about Copyright. If you don’t care about protecting your work, that’s your call. But at least know your rights. And when you see one of the Internet trolls going on and on about these myths, set them straight. You’ll be doing all photographers a favor.

For more education on Copyright issues, visit http://www.pacaoffice.org/library.shtml.

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This post sponsored by the Digital SLR Store

Join the conversation! 10 Comments

  1. […] Bourne posted a great article over on This Week in Photography entitled Destroying Copyright Myths, and it is well worth the couple of minutes that it takes to read. It should help dispel any of the […]

  2. […] Bourne posted a great article over on This Week in Photography entitled Destroying Copyright Myths, and it is well worth the couple of minutes that it takes to read. It should help dispel any of the […]

  3. […] Here’s a link to a great article by Scott Bourne of Twipphoto.com on dispelling some copyright myths: http://twipphoto.com/archives/1554 […]

  4. […] Here’s a link to a great article by Scott Bourne of Twipphoto.com on dispelling some copyright myths: http://twipphoto.com/archives/1554 […]

  5. […] a lot of people on Digg and Slashdot that need to give this post at This Week in Photography a quick read through.  It’s just an ever so quick primer on […]

  6. […] a lot of people on Digg and Slashdot that need to give this post at This Week in Photography a quick read through.  It’s just an ever so quick primer on […]

  7. […] Dispelling Some Copyright Myths & My Thoughts Here’s a link to a great article by Scott Bourne of Twipphoto.com on dispelling some copyright myths: http://twipphoto.com/archives/1554 […]

  8. […] Dispelling Some Copyright Myths & My Thoughts Here’s a link to a great article by Scott Bourne of Twipphoto.com on dispelling some copyright myths: http://twipphoto.com/archives/1554 […]

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