Transcript COPYRIGHT AND COPYWRONG

Copyright/Copywrong
in Image Licensing
The PowerPoint presentation is intended as an overview to teach the
basics of copyright and how it applies to image licensing. It is
complete with speaker notes and visual samples supplied by PACA
members. A section at the end discusses the enforcement of copyright
on the Internet. The presentation is available for download for
teaching purposes on a royalty-free basis provided you attribute it to
PACA. You may not repackage or sell the presentation. You are free to
include your own examples and anecdotes The current document
version is "PACA Copyright 080108.
http://www.pacaoffice.org/copyrightPresentation.shtml
© PACA 2008
January 8, 2008 Picture Archive Council of America
Popular Copyright Myths
· If an image is on the internet/Google it is in the
public domain.
· If there is no copyright notice on the image, I don’t
need permission.
· If I don’t profit from the use, I don’t need permission.
· If I remove the image after notice, I don’t owe any
money to the copyright.
· If I alter the image X% I don’t need permission.
· If I only use a part of the image I don’t need
permission.
Copyright Basics
The US Constitution gives Congress the power to
enact laws “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.”
When do you acquire copyright protection?
· Copyright protects “original works of authorship”
that are fixed in “a tangible form of expression.”
· Rights begin at the moment of “fixation.”
What is protected?
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literary works (all text, including computer software)
musical works
dramatic works
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works
What is not protected?
· ideas, concepts, or discoveries
· titles, names, short phrases, and slogans
· works that are not fixed in a tangible form of
expression such as improvised speech or dance
· works consisting entirely of information that is
commonly available and contains no originality
· anything written or created by the US government
What rights does the owner control?
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Rights to:
make copies of the work
distribute copies of the work
perform the work publicly (such as for plays, film,
or music)
display the work publicly (such as for artwork, or
any material used on the internet or television)
make “derivative works” (including making
modifications, adaptations or other new uses of a
work, or translating the work to another media)
How long does copyright protection last? (Current Act)*
· for the life of the author, plus 70 years
· 95 years for corporations
*since 1978
Duration (pre 1978 and post 1978)
DATE OF WORK
PROTECTED FROM
TERM
Created
January 1, 1978
or after
When work is fixed
in a tangible medium
of expression
For works of individual authorship:
Life + 70 years
For works of corporate authorship: the shorter of
95 years from publication, or 120 years from creation
Created before
January 1, 1978
but not published
January 1, 1978, the
effective date of the 1976
Act which eliminated
common law copyright
Life + 70 years or December 31, 2002,
whichever is greater
Created before
January 1, 1978
and published by
December 31, 2002
January 1, 1978, the
effective date of the 1976
Act which eliminated
common law copyright
Life + 70 years or December 31, 2047,
whichever is greater
Published from
1963-1977
When published with notice
28 years for first term; now automatic
extension of 67 years for second term
Published from
1923-1963
When published with notice
28 years + could be renewed for 47 years, now
extended by 20 years for a total renewal of 67 years.
If not so renewed, now in public domain
Published
before 1923
In public domain
None
What is Public Domain?
· works out of copyright
· US - All published works before 1923
· works that fell out of copyright for failure to
register or renew under 1909 Act or for lack
of notice before 1989
Is copyright notice needed?
· since March 1989: copyright notice is no longer
required for published works
· notice is voluntary but recommended
· proper notice: © year, name
Who owns copyright?
· a freelance artist who created the copyrighted work
· an employer who hires employees who creates
copyrighted works as part of their job
Can copyright be transferred?
· Non-exclusive rights can be transferred without
a writing.
· Exclusive rights require a writing signed by
copyright holder or authorized representative.
Limitations on owner’s rights
· "Fair Use" doctrine allows limited copying of
copyrighted works for educational and research
purposes.
· The copyright law provides that reproduction "for
purposes such as criticism, news reporting, teaching
(including multiple copies for classroom use),
scholarship, or research" is not an infringement of
copyright.
What is Fair Use?
· class handouts of very short excerpts from a book,
magazine, newspaper, etc.
· quoting for purposes of reporting the news or
criticizing or commenting on a particular work of art,
writing, speech or scholarship
What is not Fair Use?
· using a photograph or other image to illustrate a
newsworthy story (because the subject of the story is
newsworthy it does not make the image newsworthy)
· creating a similar photograph that incorporates
elements of the first photograph
Parody?
Change of medium is still an infringement
Blanche v Koons: “transformative = fair use”
Why should you worry about copyright?
· substantial monetary damages can be awarded (actual
damages, profits)
· statutory damages ($750-$30,000 and up to $150,000
if the infringement was willful)
· the infringing use can be enjoined
· attorney’s fees
· criminal offense under some circumstances
Who is responsible?
· the company that directly infringed
· employees or individuals who participated in the
infringement or should have supervised
· anyone who publishes the infringing image whether
they had knowledge or not
Actual copying
· Must show the alleged infringer had access to the original
· Must show the alleged infringer actually copied protected
elements of the original in creating the second image
Derivative Work
This image was created by
a computer graphics artist
who “borrowed” images
from several sources.
Original art
These are the two images that were infringed
upon to create the Newsday cover.
Substantial similarity
· There is no hard and fast rule for what is
substantially similar
· The two photos are compared to one another in court
Sahuc v Tucker
Lou Sahuc: Decatur Street Gate
Lee Tucker: Breaking Mist
Elements that are compared
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Posing
Lighting
Angle
Background
Perspective
Shading
Color
Viewpoint
Total Feel and Concept Elements
Elements in the particular photo that tend to
make it original and unique
Idea-Expression Dichotomy
· The idea is not protected.
· Only the expression of the idea is protected.
· Where the way the idea is expressed tends to merge
with the idea itself, there is no protection.
Idea vs. Expression
Fournier v Erickson
Leigh v Warner Bros.
Scenes a Faire
· Things that tend to look a certain way in any two
photos of the same or similar subject
· For example, a photo of a building will naturally look
similar to another photo of the same building.
Kaplan v. Stock Market Photo Agency, Inc.
Highly orchestrated images enjoy greater protection
What’s copyrightable?
Protected
· Particular expression
· Total look and feel
Not Protected
· Ideas
· Expression merged
with an idea
· Commonplace subjects
and compositions
Inspiration or infringement?
You Decide…
How to license
Broad Rights/Subscription
Rights Managed
· May use same image for
· License limited to particular
many uses without
use and time period
additional license · May request and pay for
restrictions still apply
some exclusive use
· No exclusive use available
· Availability to use a
collection of images for a
yearly/monthly fee
(subscription)
Copyright protection online and offline
· Register the work with the Copyright Office
· Include copyright information with work - particularly
online (CMI)-this includes copyright notice
Why register?
· Required before filing a claim (US authors)
· Remedies limited to actual damages and no ability to
recover attorneys’ fees if work registered after
infringement.
· With registration before infringement, you can seek
statutory damages ($750-$30,000) and attorneys’ fees
and statutory damages can be enhanced up to
$150,000 if the infringement was willful.
Registration options
· Photographers - group registration regulations for
published works (www.copyright.org)
· All artists can register large groups of unpublished works.
· Published artwork must registered separately from
unpublished (display not a publication).
Requirements
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Currently Form VA (www.copyright.gov/forms)
Deposit of work
Currently $45 per application registration fee
Additional special handling fee if needed on
expedited basis
· Do not use regular mail
Digital Millennium Copyright Act (DMCA)
Section 1202 Damages for Removal of Copyright
Management Information (CMI)
· Elements-Remove or alter CMI (watermark/copyright
information)
· intent to induce, facilitate or conceal infringement
Statutory damages $2,500 to $25,000
ISP Safe Harbor
· No monetary liability for content of user stored on its
system if infringing content is removed from website
expeditiously
· ISP must receive proper notice
· Can still proceed against direct website infringer
Notice and Take Down Letter
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Send to ISP’s registered agent
Must identify infringed works and location
Must be in made in good faith belief
Must swear you have authority to represent copyright
owner under penalty of perjury
· Physical or electronic signature
Links
www.copyright.gov
www.stockindustry.org