Presentation on copyright and licensing issues for photographers and other other artists.

1. ©©Copyright andCopyright and
Licensing IssuesLicensing Issues
Donald R. Simon,Donald R. Simon, J.D./LL.M.J.D./LL.M.

2. Copyright Law
• Part of an area of law called “intellectualPart of an area of law called “intellectual
property:” original works created as aproperty:” original works created as a
result of intellectual activities.result of intellectual activities.

3. Copyright Law
• Copyright (“CR”): exclusive right ofCopyright (“CR”): exclusive right of
control over literary or artistic creations.control over literary or artistic creations.
• Primary purpose of CR is to give creatorsPrimary purpose of CR is to give creators
economic incentive so that society willeconomic incentive so that society will
benefit from creative production.benefit from creative production.

4. Copyright Law
• Elements of a CRElements of a CR::
““Original work of authorship that is fixed in aOriginal work of authorship that is fixed in a
tangible medium of expression.”tangible medium of expression.”
1.1. OriginalityOriginality
2.2. Work of AuthorshipWork of Authorship
3.3. FixationFixation

5. Copyright Law
• Elements of a CRElements of a CR::
““Original work of authorship that is fixed in aOriginal work of authorship that is fixed in a
tangible medium of expression.”tangible medium of expression.”
• CR protection beginsCR protection begins at the moment ofat the moment of
creationcreation..
• No registration or notice requirements to haveNo registration or notice requirements to have
a valid CR, but are significant for othera valid CR, but are significant for other
reasons.reasons.

6. Copyright Law
• Once the elements are met, CR ownersOnce the elements are met, CR owners
getget virtual monopoliesvirtual monopolies over their works:over their works:
1.1. ToTo reproducereproduce the work in copies;the work in copies;
2.2. To prepareTo prepare derivative worksderivative works;;
3.3. ToTo distributedistribute copies;copies;

7. Copyright Law
• Once the elements are met, CR ownersOnce the elements are met, CR owners
getget virtual monopoliesvirtual monopolies over their works:over their works:
4.4. ToTo performperform the work publicly; andthe work publicly; and
5.5. ToTo displaydisplay the work publicly.the work publicly.

8. Copyright Law
• Unless you are an employee or haveUnless you are an employee or have
contractually transferred ownership, youcontractually transferred ownership, you
become the owner of rights when youbecome the owner of rights when you
create the photo or image.create the photo or image.
• Infringement occurs when one or more ofInfringement occurs when one or more of
these exclusive rights area violated.these exclusive rights area violated.

9. Copyright Licenses

10. Copyright Licenses
• One of the primary values of owning CROne of the primary values of owning CR
rights is the ability to transfer some or allrights is the ability to transfer some or all
of those rights to 3rd parties.of those rights to 3rd parties.
• Transfers can be for all of the CR rights inTransfers can be for all of the CR rights in
a work (an “assignment”), or can be for aa work (an “assignment”), or can be for a
limited portion of the rights (a “license”).limited portion of the rights (a “license”).

11. Copyright Licenses
• Licenses are one of the primary ways inLicenses are one of the primary ways in
which photogs make money from theirwhich photogs make money from their
images.images.
• Also referred to as “usage rights.”Also referred to as “usage rights.”

12. Copyright Licenses
• CR licenses can take several forms:CR licenses can take several forms:
1.1. ExclusiveExclusive
2.2. Non-exclusive; orNon-exclusive; or
3.3. A combination of the two.A combination of the two.

13. Copyright Licenses
• License agreements:License agreements:
– Should be in writing.Should be in writing.
– Include names of the parties.Include names of the parties.
– Description of the property under license.Description of the property under license.
– Fee or royalty amount (or buyout structure).Fee or royalty amount (or buyout structure).

14. Copyright Licenses
• License agreements:License agreements:
– Mention that rights only transfer with fullMention that rights only transfer with full
payment.payment.
– Provide for the recovery of attorney’s fees.Provide for the recovery of attorney’s fees.
– Rights not expressly granted are reserved toRights not expressly granted are reserved to
the artist.the artist.

15. Infringement “Excuses”

16. Infringement “Excuses”
• When someone infringes your CR, theyWhen someone infringes your CR, they
usually offer some excuse to try to avoidusually offer some excuse to try to avoid
liability.liability.
• Many excuses appear compelling on theMany excuses appear compelling on the
surface, but don’t stand up to the law.surface, but don’t stand up to the law.
• Here are a few…Here are a few…

17. Infringement “Excuses”
• ““I didn’t post the photo my website˗I didn’t post the photo my website˗
designer did.”designer did.”
– ResponseResponse: Ignorance isn’t an excuse to: Ignorance isn’t an excuse to
infringement, particularly when it’s your jobinfringement, particularly when it’s your job
to hire or otherwise supervise the infringer.to hire or otherwise supervise the infringer.

18. Infringement “Excuses”
• ““The infringement was a mistake.”The infringement was a mistake.”
– ResponseResponse: You didn’t have to intentionally or: You didn’t have to intentionally or
willfully infringe to be liable for infringement.willfully infringe to be liable for infringement.
• A mistake will not only not preclude liability, it mayA mistake will not only not preclude liability, it may
not be reasonable and willfulness could still benot be reasonable and willfulness could still be
found by the court.found by the court.

19. • ““I gave credit to the photog.”I gave credit to the photog.”
– ResponseResponse: Many mistakenly assume that: Many mistakenly assume that
they may use a photo so long as theythey may use a photo so long as they
acknowledge the photog or otherwiseacknowledge the photog or otherwise
provide the source of the photo.provide the source of the photo.
• While this might work for plagiarism purposes, itWhile this might work for plagiarism purposes, it
doesn’t excuse potential CR liability.doesn’t excuse potential CR liability.
Infringement “Excuses”

20. Infringement “Excuses”
• ““If it’s on the web, then it’s public domainIf it’s on the web, then it’s public domain
unless clearly marked otherwise.”unless clearly marked otherwise.”
– ResponseResponse: The urban myth that if it’s on the: The urban myth that if it’s on the
web, it’s free, it not true.web, it’s free, it not true.
• CR vests in a work when it is created.CR vests in a work when it is created.
• A CR notice is not required to preserve a work’sA CR notice is not required to preserve a work’s
CR protection.CR protection.

21. Infringement “Excuses”
• ““I got the image from Google.”I got the image from Google.”
– ResponseResponse: Many infringers claim that they: Many infringers claim that they
didn’t know that the photo was protected bydidn’t know that the photo was protected by
CR because they copied it from a GoogleCR because they copied it from a Google
Images search.Images search.
• Even Google explains this in their disclaimers thatEven Google explains this in their disclaimers that
images may be protected by CR.images may be protected by CR.

22. Infringement “Excuses”
• ““I only used part of it, so it’s fair use.”I only used part of it, so it’s fair use.”
– ResponseResponse: Using a small part of a CRed: Using a small part of a CRed
work is only one factor considered by awork is only one factor considered by a
court under the fair use doctrine, but thecourt under the fair use doctrine, but the
amount of use alone is not enough toamount of use alone is not enough to
excuse infringement.excuse infringement.
• The safest thing is to get a license to use a photo.The safest thing is to get a license to use a photo.

23. Infringement “Excuses”
• ““I didn’t make any money from theI didn’t make any money from the
infringement.”infringement.”
– ResponseResponse: Making money is irrelevant when: Making money is irrelevant when
determining an infringement.determining an infringement.
• If you reproduce, display, distribute and/or create aIf you reproduce, display, distribute and/or create a
derivative work of the photo without authority ofderivative work of the photo without authority of
the CR owner or the law, then you have committedthe CR owner or the law, then you have committed
infringement.infringement.

24. Protecting Your Works

25. Protecting Your Works
• Besides registering the CRs with the CRBesides registering the CRs with the CR
Office, there are numerous commonOffice, there are numerous common
sense ways to protect your work.sense ways to protect your work.
• Some methods work better than others.Some methods work better than others.

26. Protecting Your Works
• Short of avoiding posting material on theShort of avoiding posting material on the
Internet all together, nothing is 100%Internet all together, nothing is 100%
foolproof.foolproof.
• You’ll need to find the right techniqueYou’ll need to find the right technique
that thwarts Internet thievery but doesn'tthat thwarts Internet thievery but doesn't
inconvenience potential clients.inconvenience potential clients.

27. Protecting Your Works
• If someone is bound and determined toIf someone is bound and determined to
steal your work, they will stop at nothing.steal your work, they will stop at nothing.
• You don’t have to make it easy for them!You don’t have to make it easy for them!

28. Protecting Your Works
1.1. Watermark or emboss your photos orWatermark or emboss your photos or
images.images.
– Use some kind of easily identifiable mark,Use some kind of easily identifiable mark,
such as your name along with the © symbol.such as your name along with the © symbol.

29. Protecting Your Works
2.2. Post small, low-res photos or images.Post small, low-res photos or images.
– These are much harder to copy.These are much harder to copy.

30. Protecting Your Works
3.3. ““Shrinkwrap” your photos and images.Shrinkwrap” your photos and images.
– Adding a clear filter layer over the work.Adding a clear filter layer over the work.
– Visitors can still see the image but it cannotVisitors can still see the image but it cannot
be so easily copied.be so easily copied.

31. Questions?

32. Contact Me:
• PhonePhone: 816.728.6948: 816.728.6948
• EmailEmail:: don@simonbizconsulting.comdon@simonbizconsulting.com
• TwitterTwitter:: @simonbizconsult@simonbizconsult
• WebWeb:: simonbizconsulting.comsimonbizconsulting.com
THANK YOU!THANK YOU! 

33. Attention:
This presentation is provided as aThis presentation is provided as a
source of information and is not to besource of information and is not to be
construed as legal advice or opinion, orconstrued as legal advice or opinion, or
to form an attorney-client relationship.to form an attorney-client relationship.
For legal advice, please consult anFor legal advice, please consult an
attorney.attorney.