Wednesday, November 11, 2015

Copyright of Photographs

During a recent casual conversation with an attorney friend the question of copyright of photographs came up.  If two people take a picture of a building and the photographs are almost identical, how does another person know who owns the copyright?  The short answer is the photographer is considered the artist/creator and owns the copyright to his photographs.  For example the above is my picture of the Shrine of the Book, which is part of the Israel Museum.  Since the person is not recognizable, no model release is required for publication. Even if the person was recognizable, the picture is being used editorially and a model release is not 100% required.  The picture was taken following the guidelines of the Museum. I framed the picture and cropped it.  I own the copyright and the right to publish it here. If someone else, standing next to me took a similar picture, they own their picture.  It would not be plagiarism or even “copycatism.”  If I posed people or otherwise composed the shot, someone may be infringing on my creative rights if they took a picture.  I could ask them to cease and desist.

The question of ownership under law has changed over time.  Photography did not even exist at the time of the first copyright laws. Artwork was not even covered. While the copyright ownership under the law is clear, the rights to use photographs in printed or published works is not 100% clear.

(On June 22, 2012 the Canadian Parliament passed a revised copyright law. [1] One of the stated purposes as stated in the summary was to “give photographers the same rights as other creators” of artistic and literary works.  According to the previous law, photographers who were commissioned or hired were not automatically the first owners of their photographs when shooting commissioned work. The entity that hired them was the copyright holder unless the parties signed an agreement concerning ownership.  Section 13(2) of the Canadian Copyright Act specifically singled out photography as being different than other creative works. I am including information about Canadian law because Canada, the United States and other countries are part of international treaties concerning copyright.  Copyright law in Canada, US, Great Britain and other English speaking countries is very similar.  

According to U.S. Copyright Law [2]  the copyright owner has the following rights: 

  • (1) To reproduce the work in copies;
  • (2) To prepare derivative works;
  • (3) To distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • (4) To display the copyrighted work publicly

The photographer is considered an artist whether the pictures were carefully planned or taken in a moment of opportunity.  When the shutter is released, the photographer who pressed the button owns the copyright.  Like literary works, when the artist is working under contract or his usual job, creations are in the “works-for-hire” category.  A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs as part of his job or (2) a freelancer hired under contract for an event.  The contract must state the rights of the photographer and those who hire them. The free-lance photographer is considered an artist. 

The copyright law in section 120 allows photographers of buildings and other structures to own their works without the need for the building owner to give permission.  Building owners can not prevent photographers from using the likeness of the building in any way.  The owners of the “Hollywood” sign have tried to prevent people using pictures of the sign, by sending cease and desist letters that demand payment.  I saw one web site written by an attorney claiming that law suits filed by the sign owners were not successful, but I have not yet been able to verify this.

Photography of buildings, icons, or artwork is complex because copyright and registered trademarks are evolved.  People may confuse what is protected, how it is protected, and what can be published without permission.  For a tourist or for other personal purposes, there is no limitation as to what you can photograph while standing on public property. Go ahead and photograph the Brooklyn Bridge, the Statue of Liberty, the Hollywood sign, or any building that you want.  You can use the photographs in an article you write about your visit to New York or Los Angeles.  However, you may need permission to use the image to associate it with your business or cause.  For example: I saw a TV commercial for Liberty Mutual Insurance.  The spokesperson clearly had the Statue of Liberty in the background.  During the first part of the commercial the name of the company was not used.  The Statue was not initially connected to the narrative.  Had the commercial ended there, I would have considered this fair use.  In the second part of the commercial, the name of the company and their symbol were clearly identified.  Their corporate symbol in the commercial is a rendition of the Statue’s arm. From their web site the symbol is the face and arm of the Stature.  This implies a connection.  This use of the Statue is not allowed without permission because it creates a connection between the Statue and “Liberty” in their name. [3]

For editorial use pictures can be used within fair use provisions of the law.  For example this picture contains the famous Rockefeller Plaza Statue. It is a still from the 1949 musical film On the Town. The three actors are: Frank Sinatra, Jules Munshin, and Gene Kelly.   The film makers probably needed permission to make the film in Rockefeller Plaza.[4] The actors signed contracts.  If I wanted to take a picture of three sailors in the Plaza, how I use the picture would indicate the permissions needed.  The use of this picture for this article is fair use because it is for editorial illustrative purposes.  I know who the names of the actors because in the next shot their faces are clearly seen and I read the credits. Generally, people have a right to control the use of their likeness[5].  If the people were random passers-by I would need model releases before I could publish the pictures in a commercial way that would associate them with my product or service.  If I would associate a still picture or film with my product or services, I probably need permission. 

The movie’s camera operators are not the artists. For them this film is a work for hire.  If you or I passed by and took a snap shot of the filming, the producer or director may or may not try to assert the rights to the image; however, under current law the photographer owns the copyright as soon as the shutter is opened.  The use of the images may to limited by a contract or trademark law.

History of the Copyright of Photography

Copyright legislation is reserved by the US Constitution to the federal government.  Before the Constitution each state had its own copyright law.  This created a maze of laws that made literary creation and publishing difficult.  The creator’s of the Constitution saw copyright as one area of law that required national legislation. The first United States copyright law was enacted on May 31, 1790.[6]  The law protected literary works, charts, and maps and the creations of inventors.  It was a combination copyright and patent law, but there was no protection of artistic works. Oren Bracha (see note 6) says that while this copyright law was similar to the British Statue of Anne[7], there is no evidence of a direct connection.  The connection may be through the state copyright laws that were based on the Statute of Anne.  A key philosophical difference was the British law protected the bookseller/publisher while the American law protected the author/creator.   The term of copyright was 14 years.  This term was either a vestige of the 1624 Statute of Monopolies, where it functioned as the maximum duration allowed for new inventions or 14 was considered a fair period to recoup the investment.  The protection of intellectual property rights was secondary to the protection of commercial rights.  While some people lived to be in their 80’s the average 18th century adult could expect to live to be about 60. 14 years was connected to the life expectancy for the author.     According to Edward Coke,[8]   a 14 year term was probably chosen because it was twice the standard apprenticeship term.  I disagree because many places in Coke’s book mention seven year periods and none have any connection to the protection of intellectual property.

State laws varied in their protection of creative works.  All the acts protected rights in books or printed works. [9]  New Hampshire[10] had a broader definition of printed works, “all Books, Treatises, and other literary Works.” New Hampshire stated that creators have the right to the “fruits of their study and industry.” This indicates that intellectual property is protected as a common good.  New Hampshire’s protection lasted 25 years.  Only Connecticut,[11] Georgia[12] and North Carolina[13] explicitly extended protection to maps and charts.  That is works based on graphics rather than texts.

 All of these early statues had weak provisions for enforcement.  The penalties were withdrawal of offending copies or restitution of two times the cost of the copies printed.  The first recorded Federal case dealing with copyright was Morse v. Reid was decided on April 4, 1798.  The court ordered the plaintiff to pay the amount of the net profits from the sale of infringing copies and did not follow the statutory remedy.[14]

The revision to the copyright law enacted in 1802[15] added etchings and engravings to the types of work protected.  The law was changed in February 1831 to include musical compositions whether or not printed and published.  The period of protection was increased to 28 years.[16] In August 1856 copyright protection was extended to plays and performances. [17]  Photographs and negatives were not protected until March 3, 1865.[18]

Since 1839 people have been debating whether photography is art or a technical process.   Is a photograph documenting the world or is the camera an artist’s tool.  For the established artists in the early 1800’s photography was a viewed as a threat to their livelihood. In response to the claim that photography was mechanical recording, many artists made paintings that were more works of imagination, than reality.  While snap shots may just be a document of the moment, any time a photographer frames the picture, looks for the best shot, or processes the photo after the shot it is art.  The photographer has used creative energy and skill to create art.

Artist Mark Chamberlain says that the debate as to whether photography is an art or not is over.

“When photography was introduced in 1839, many artists viewed the camera as a soulless, mechanical device, rather than as a legitimate artist's tool. But the camera has always been a very powerful tool in the right hands. In fact, it forced the rest of the art world to move over and move on; to their benefit in the long run … It is the eye, hand, heart, and timing of the artist that give the photographic artwork meaning."[19]

In 1884 photographer Napoleon Sarony filed a copyright infringement suit against the Burrow-Giles Lithographic Company.[20]  The case worked it way to the Supreme Court on the issue: Is the 1865 copyright law extending protection to photographs constitutional?  The suit was file as a writ of error to the circuit court for the southern district of New York. Plaintiff is a lithographer, and defendant a photographer, with large business in those lines in the city of New York. In the suit before the New York circuit court  Sarony was plaintiff and the lithographic company was defendant, the plaintiff charging the defendant with violating his copyright in regard to a photograph, entitled 'Oscar Wilde, No. 18.' The court made a judgment in favor of the plaintiff who was awarded the sum of $600 for the plates and 85,000 copies sold and exposed to sale, and $10 for copies found in his possession.  Sarony did all the correct steps to secure copyright.  The Supreme Court affirmed the ruling of the Circuit Court stating that the nature of authorship and of originality, intellectual creation, and right to protection, are valid copyright protection of photographs.  The Court said that the Constitution is broad enough to authorize “photographs, so far as they are representatives of original intellectual conceptions of the author[21].”  The Court recognized that photographs are intellectual property on the same level as literary creations.

Guidelines for use of Photographs

While the law makes it clear that copyright is owned by the creator of a literary, graphic, electronic, or any other work in a fixed form from the moment of creation, one does not have complete freedom to use the creation in publications. Publications are not limited to print.  A web site, blog, video screen, or broadsides are examples of publications.  Contractual agreements may limit your use.  For example a photographer may be hired for a job.  The contract will state what rights s/he has to the photographs.  In a building the owner or management may limit photography for many reasons such as privacy, secrecy, or contractual agreements that supersede the copyright protections of the law.  In a public area, you may take pictures, but still not have the right to sell or publish them.  How the pictures are used governs what kind of permissions you need. 

If you hire a photographer for an event, sign a contract that explicitly states who owns the copyright, the rights to use the pictures, and the length of the term.  Don’t sign a standard contract without reading it carefully.  If you don’t like the photographer’s terms, negotiate, emend, or get another photographer.

Go ahead and take your family pictures, tourist pictures or document your travels as long as they are taken within the guidelines of the place. For example buying a ticket to a museum may indicate your photography is limited.  Take a picture of a landscape or outside of a building to your heart’s content as long as you are not endangering yourself or others.  Taking a picture of people at a public outdoor event may or may not require a model release depending on the use.  For editorial use, don’t worry.  For commercial uses, get a release.

Even if you are right under the law, sometimes litigation is too expensive and not worth the trouble.  If someone threatens to sue, try to fight back but avoid court.  Figure out if the possible gain is worth the effort.

For historical photographs, the copyright law protects them for the owner’s lifetime plus 70 years.  This is quite unfair.  Imagine you have a baby picture of your grandparent taken 100 years ago.  The photographer is not known.  You want to publish the picture on your web site or in your book.  Who is going to care about the copyright of a 100 year old picture?  If the picture were still protected under copyright, would the owner be able to prove ownership?  What is the worse thing that can happen?  If you get a notice of copyright “violation” and you delete the picture. The claimant has spent time and money to find your picture and now the picture is gone.  There is no claim or possible law suit.

If you are publishing a photograph, not only should you make sure that you have the rights, but also give proper attribution.


Thanks to the web site: Primary Sources on Copyright (1450-1900)  General editors: Lionel Bently of the University of Cambridge and  Martin Kretschmer of the University of Glasgow for having many sources for the study of the history of copyright.  The site has many historical documents and citations for further study.

[1] Bill C-11 amended section 20 of Statues of Canada.  The text can be found here:

[3] The Statue of Liberty-Ellis Island Foundation, Inc. owns the rights to Statue’s image. The Foundation makes significant money from the licensing rights for everything from miniature replicas to corporate associations such Liberty Mutual.  They do not approve every licensing request.  They turned down pictures of Statue of Liberty that are not in concert with their mission such as coffins.  See the New York Times July 30, 1984  article, “Statue Of Liberty Is a License Problem”   

[4] In today’s movies some companies may pay for product placement.  For example in the movie ET, The Mars Company refused to allow the use of M&M’s.  The producers used Reese’s Pieces.  There was an immediate increase in sales attributed to the movie. It is not clear if the producers of On the Town would pay Rockefeller Center or the other way around. 

[5] A full discussion of this is beyond the scope of this article because that is not a copyright issue.

[6] Here’s the text of the law:   For commentary on the law see : Bracha, Oren. ‘Commentary on the U.S. Copyright Act 1790', in Primary Sources on Copyright (1450-1900), editors: L. Bently & M.Kretschmer, Cambridge, UK : Faculty of Law, University of Cambridge, 2008.   

[7] The Statute of Anne, (official title: An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies) the first British copyright law was enacted in 1710. Before this statute copyrights were based on local laws and case law.  Some only protected works for five years.

[8] Coke, Edward. Institutes of the Laws of England. London: M. Flesher, 1644.

[9]  Solberg, Thorvald. Copyright Enactments of the United States 1783 -1906. 2nd ed.  Washington : Library of Congress, 1906.  

[10] Ibid. page 18.
[11] Ibid. page 11.
[12] Ibid.  page 27
[13] Ibid.  page 26

[14]  Bracha, Oren. Owning Ideas: A History of Anglo-American Intellectual Property. Cambridge, Massachusetts : Harvard Law School, 2005.  Doctoral dissertation.
[15] Solberg, Thorvald. Copyright...  page 34
[16] Ibid.  page 37
[17] Ibid.  page 43
[18] Ibid.  page 44

[19] Quote is from : Goldner, Liz.  “Photography as Art: The Debate is Over”  Laguna Beach, California :, 2015. .  Mark Chamberlain is a fine art photographer who owns BC Space Gallery in Laguna Beach, California.  Retrieved on Nov. 10, 2015.

[20] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).  Full text of the decision:

[21]  Find Law for legal professionals.   Legal citation for the New York case: S.Ct. 17 Fed. Rep. 591.

1 comment:

TzirelM said...

Very interesting article.