Copyright In Focus: The Leverage & Origin s of Copyright on Photofocus
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Copyright In Focus: The leverage & origins of copyright

(Editor’s note: Copyright and all things related are as important to creators of images both moving and still. This guest post by intellectual property attorney, Barry Kaplan gives us all some insights into what copyright law is, where it came from and why it’s important to all of us.)

You’re a photographer; a creator. If you’re anything like the other talented, invested, proud creators I know, I’ll bet that you want a few important concessions from others who view and want to use your work.

Credit for and control of your work

You probably want recognition that you are the photographer who made the picture. You probably want to have control over who can use your work; over how they use it; over where they use it; and, over how long they use it. You probably want to be paid a reasonable fee for all appropriate uses of your work that you are willing to allow.  And, if things jump off the rails and you don’t get these important concessions, you probably want the ability to seek appropriate redress.

I’ll bet, too, you’ll agree with me that you won’t get any of these things by pitching a temper tantrum or by throwing a pity party after someone else has abused your trust and good-will, and has taken your valuable work with no remorse or paying for your photos for that matter.

Rather, what you need in order to ensure that you are treated fairly and respectfully and that you get those important things above — is leverage. The kind of leverage that people and companies around the world understand. Leverage in the form of rules that are well and universally understood. Rules that, when broken, have well understood and significant consequences. Consequences that can include a variety of penalties. Penalties of the kinds that sting, that can be enforced, that can put money in your pocket, and that can serve to deter future bad acts.

Leverage like this can help you get the desirable professional outcomes you want. Leverage like this can help put your business in a far better economic position. Leverage like this can help you negotiate better, more appropriate agreements (contracts) with customers, clients, and users. Leverage like this can help capture the interest of a lawyer who can assist you when you need it. Leverage like this can help put a judge and jury in a position to make a decision in your favor if it ever comes to that.

So, now you are thinking to yourself, “Where do I find this kind of leverage? Isn’t it only available for big, sophisticated companies? Isn’t it out of reach for a sole photographer like me or a small photography business like mine? Isn’t it so complicated and expensive that I can never hope to achieve the benefits I want and need?

Waiting for the MTA in NYC. Photo by Kevin Ames
©2017 Kevin Ames

Leverage courtesy of our Founding Fathers

Enter, now, our wise Founding Fathers; enter, now, the Constitution of the United States of America…

This is a good time to put a name to those important things you want and need for your creative works, those important concessions you need from others, which we’ve been talking about so far. From the moment you take any photo, still or motion, those important things you want and need become vested legal rights — “Copyrights” — that belong to you. In fact, these specific rights are individual components of a larger bundle of legal rights, all of which find their genesis in the Constitution.

Turns out that our Founding Fathers had your creative back even before you were born.

That’s right, Article I, Section 8, Clause 8 of the Constitution says that Congress shall have power

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.

So, how did Congress assert this power? It legislated. Congress created the Copyright Act of the United States. In the Copyright Act (which has changed significantly through the years), Congress established a sophisticated legal and administrative structure, process, and procedure. From that was born the Copyright Act’s enabling Rules and Regulations. (And, of course, the “progress of science and useful arts” language similarly led to the creation of the Patent Act of the United States. And that’s another story completely.)

What does this mean to me?

You now have and can claim a vested, bundle of legal rights covering your photographs and other creative works.

The Constitution anticipates the invention of photography

And, lest we get too far ahead of ourselves, let’s put to bed the inevitable question, “Where does Article I, Section 8, Clause 8 of the Constitution talk about photographs (or music, or movies, or statues, or works of art, or … whatever)? Well, that’s where Congress, the Courts, and the Copyright Office, in their wisdom, have seen fit to interpret the word, “writings,” so broadly as to encompass all forms of creative works; including, of course, photographs, videos, movies, multimedia — all of the things that you create.

Penn Station NYC
©2017 Kevin Ames

Monopolies can be a good thing

So what’s so special about a copyright? Well, you know that we have antitrust laws in this country that are intended to protect and to promote free competition over monopolies.  But, did you know that copyrights (and patents) are actually limited monopolies, and the only such monopolies, granted by the U. S. Constitution?

You might have noticed the “exclusive right” language in Article I, Section 8, Clause 8. This Constitutionally granted, “exclusive right” is the limited monopoly right we’re discussing. So, by extrapolation, this bundle of legal rights you own in your creative works are, in fact, limited monopoly rights that, by virtue of their Constitutional origins, are (mostly) jealously and zealously protected and enforced by the U. S. federal Courts.

Summing up

I want to be very clear in saying that the basics of the copyright system are easy enough for a layperson to understand and use; the costs are (relatively) reasonable and manageable for a large segment of individual creators and small businesses; and the associated, extended bundle of statutory rights provided by registration of copyright can be exceedingly valuable.

And for all the difficult questions, that’s why copyright attorneys exist: you do have a good copyright attorney, right?

The fine print:

The information contained in this article does not constitute legal advice, nor does it create an attorney-client relationship between you and the author. You should always seek the informed advice of an attorney before entering into any legal transaction, when ascertaining your own or another’s legal rights and/or responsibilities, and/or when contemplating litigation. Please note that the author may not be licensed to practice law in your jurisdiction; accordingly, nothing contained in this article is intended to be, nor shall be, construed as an offer to provide professional legal services, and especially not to anyone outside of the jurisdiction(s) in which the author is duly licensed to practice.

Featured photo: ©2017 Kevin Ames

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