My friend, Anthony Lavorgna, and I had to delve into the intricacies of copyrightable material when we made the decision to sell our images as stock photography. I have had to contact several webmasters about the illegal use of a few of images that I created. I normally don’t care if my creations are displayed elsewhere, but give credit where credit is due. Publishers, web designers and even blog owners frequently discover photographs they like and the question then occurs whether or not those photos may be used for self-published book cover, on a website or for other purposes. Photographs are protected by copyrights that may actually provide slightly more difficult challenges than graphic art. (All assumptions of copyright are for photographs taken in the United States).
1. the exclusive right to make copies, license, and otherwise exploit a literary, musical, or artistic work, whether printed, audio, video, etc.: works granted such right by law on or after January 1, 1978, are protected for the lifetime of the author or creator and for a period of 50 years after his or her death.
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The Rights Issues
There are usually several people whom can claim rights on a photograph. Unlike graphic art that is commonly produced by a single artist, a photograph often involves the rights of the photographer as well as the subject. The subject, in this case, can be a person or in some limited instances, a building. It is the photographer that commonly has copyright control of the photograph. Under the copyright law, copyright subsists in original works bearing some form of originality. The photographers expertise in posing the subject, positioning the lights, setting the camera etc. are generally sufficient enough to pass the threshold for originality.
And even photographs of now public domain works of art, perhaps called “classic art” such as the Mona Lisa or the like, may also be protected by copyright. While the underlying art may be in the public domain and thus free to use, a particular photographic depiction of that free artwork may be separately copyrighted and so a clearance must be obtained for using that photographic reproduction of the artwork. I use the word “may” here because under the originality concept discussed above, if the photograph is an exact duplication of the public domain work (which it clearly is intended to be), then perhaps an argument can be made that the photographic version may not be separately copyrightable since there is not sufficient originality shown.
Needless to say, if the primary artwork is still protected by its own copyright, then consent to use it must also be acquired. These rights usually stay with the artist or the artist’s estate.
Hence, if you wish to make use of a photograph for any need, you must gain permission from the photographer. Any time you come across a photograph in a magazine or book, it is unlikely that that magazine or book owns the copyright in the photo. Moreover, the magazine may simply be a licensee for limited use and that all other legal rights continue to be with the photographer. Therefore, you shouldn’t be dealing with the magazine in which the photo appeared because oftentimes they will not have the legal rights to grant permission. You may obtain these permissions, if at all, by negotiating with the photographer.
However, it may be difficult to get direct access to the photographer. There is usually an agent or perhaps the photographer has granted licensing rights to a clearance house. When you approach either the photographer, the agent or the house, you must know what rights you need because the fee is going to be based upon those rights.
- Do you need book cover rights?
- Merchandising rights?
- Foreign rights?
- Internet rights?
We will continue this discussion with the rights of publicity in Part II.
Author: LA Pride
LA Pride is a native Floridian who is interested in many things including temporal physics, critical thinking, board games, kite boarding and photography to name a few. His primary areas of interest include web CMS, vector and 3D art. He is also the Founder and Sr. Web Developer of NQN Media Group. You can visit his website, or friend him on Facebook.