Photographs and other images are protected under the laws of copyright, and the creators as copyright owners have absolute rights to control the use of their photographs. Infringers are those that violate the owners’ rights and can be subject to fines, destruction of the infringing work and in some cases criminal penalties and imprisonment
Copyright Myths ?
Anything on the Internet or the World Wide Web is in the public domain.
If there is no © notice, you do not need permission.
Alter any image 20-25%, you don’t need permission.
If you use only part of an image, you don’t need permission.
These are all untrue.
Who is the Owner?
Since 1978, the creator of a work owns the copyright, unless the owner transfers the rights to another. If you hire a photographer to take your portrait, the photographer owns the copyright. You may only own a copy of the print. These rights of ownership are exclusive, only the author can give them away. Generally, if a work is created by an employee within the scope of employment, the employer is considered the author/owner. In most situations, an independent contractor, such as a freelance photographer will not be considered an employee, and the work will be owned by the photographer. To be classified as a work made for hire, with the hiring party owning the copyright, the work must fall into nine enumerated categories under the Copyright Act. Otherwise a work for hire agreement must be in writing and signed by the author. You can not cheat, and write a work for hire on the check endorsement after the work is created.
Exclusive Rights of Ownership
The copyright owner controls the rights to his or her work to the exclusion of others. The ones that apply to the visual arts include the following:
Reproduction
The reproduction, or the making of a copy, of the whole or part of a work without permission, constitutes infringement. A copy can be made by making an exact copy, or by imitating the original. Even a small portion may be considered an infringement.
To Modify or Edit the Original
The right to modify the original work belongs exclusively with the owner. This includes the right to make a painting from a photograph, or a collage from several different photographs or images. This right covers any form in which the original can be recast, transformed or adapted. Even if derivative work is extremely creative,
Permission must be obtained from the owner of the original work. Manipulating and combining images in Photoshop or similar computer programs without permission creates an unauthorized derivative use.
To Distribute Copies
The copyright owner is the only one permitted to distribute copies of the work to the public by sale or other transfer of ownership, such as a license agreement. If a photograph is needed for publishing, in a book, advertisement or web site, as an example, a written license must be obtained, and in most cases a negotiated fee or royalty.
How to Legally Obtain Rights to a Work
Only the owner can grant the right to use his or her work. A release form must be obtained by the owner. You only have permission to use the rights granted, all other rights are retained by the owner.
What Can Happen to an Infringer?
The owner of a copyright has various remedies against an infringer under the Copyright Act. One remedy is an injunction, a court order that stops the use completely. The fact that this may cost the infringer a lot of money is not necessarily a relevant factor. Monetary damages are available. The copyright owner, under certain circumstances, may elect statutory damages which permit a court to award up to $100,000 if willful infringement is found. Profits or damages may be elected as a measure of damages as well as attorneys fees and costs. The destruction of the infringing material may be ordered. The Act provides for personal liability, even if you work for a corporation, in circumstances where the individual was instrumental in permitting the infringement.
