STILL IMAGES
COPYRIGHT BASICS

1. Introduction

Almost everyone in today's world creates copyrighted works of visual art, whether they do so for a living or just as a hobby, whether they earn income from their copyrights or are totally oblivious to their existence. Almost every time someone picks up a camera and exposes a piece of film, or draws a sketch, or puts oil on canvas, original works are created, and the creation of those works usually gives the person who created them an automatic copyright in them. Like all assets, those copyrights have value. In some cases, the value is very high, like a piece of real estate in mid-town Manhattan; in some cases, it is very low, like swamp land in Florida. No matter what the value, though, it is important for every copyright owner to know exactly what it is that he or she owns.

What follows is a very brief and general discussion of some of the basic principles relating to the copyrights to visual images, and answers to some frequently asked questions ("FAQs"). The subject of copyright law has several legal encyclopedias and countless books and articles dedicated to it, and it is impossible to cover a subject as important as copyright in an short piece like this in anything but the most general and cursory manner. If you want or need more information, there is a list of links to other sites posted here, as well as some names and contact information for other organizations that may be able to provide you with some useful information.

2. What a Copyright is
A copyright is a legal monopoly, entitling its owner (i.e. painter, illustrator, sculptor, photographer) to prevent other people from doing certain things with the copyright owner's artwork that only the copyright owner is allowed to do. Copyright law exists in almost every country, and most countries are subject to international treaties and conventions aimed at making copyright law internationally enforceable.

Like patents, copyrights in the United States are rooted in Article I, Section 8, Clause 8 of the U.S. Constitution, which gave 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." Congress exercised that power by creating what is currently the U.S. Copyright Act of 1976 (Title 17 of the United States Code). The predecessor to the current copyright law was the Copyright Act of 1909, and there are still many photographs, drawings and paintings in existence that were created under the old law. The discussion in this piece will be limited to the 1976 Act.

The 1976 Act preempted the rights of the various states to have laws on the subject of copyrights, so anything relating to the law of copyrights is governed completely and exclusively by the federal law.

A copyright is really a bundle of exclusive rights that belong to the artists and photographers as copyright owner. These rights are infinitely severable and transferable, so that the owner of them can allow or license many other people or entities to use the copyrighted works in an infinite variety of ways.

There are six exclusive rights that belong to artists and photographers as copyright owners, four of which usually apply directly to works of visual art:

A. To reproduce the copyrighted work;
B. To prepare derivative works based on the copyrighted work;
C. To distribute copies or phonorecords of the copyrighted work to the public.;
D. To display the copyrighted work publicly.

The most important thing to remember is that these rights are exclusive. That means that nobody but the artist or photographer as copyright owner can make any of the above uses of a drawing, painting or photograph. Unless an exception to copyright applies, such as fair use, using an artist's or photographer's copyrighted work without permission is an infringement, and the Copyright Act provides for both criminal and substantial civil penalties for infringements.

3. When a Work Becomes Entitled to Copyright Protection.
The creation of an artist, whether fixed in a photographic print, drawing, etching or painting is referred to under the Copyright Act as a "copyrighted work" or simply "a work". In order to be entitled to a copyright, a work must be one that is:

A. Of original authorship (meaning that it has some at least minimal level of originality),
B. That is fixed in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device (meaning that it has been recorded in some way that it will last for more than a brief moment and that someone could see, copy, transmit or otherwise use the work, either directly or by applying some kind of process or using some kind of machine).

The copyright arises at the moment of fixation; that is, as soon as the film is exposed in the camera, or the pencil moves across the paper, or the hard drive records the code that makes the cursor draws the line on the computer screen. It is not necessary to record the copyright at the Register of Copyrights' Office, nor is it necessary to place a © sign or other copyright notice next to the work, in order to create a copyright. There are good reasons to do those things, but they are not necessary for the simple purpose of creating a copyright.

The copyright protects only the tangible expression of the work, not the ideas that the work embodies. The difference between the idea and the expression of that idea in a work is important. Remember that a copyright is a monopoly. Obviously, Congress will not give anyone a monopoly on an idea. There are some ideas that can be expressed in so few ways that your copyright cannot be used to prevent another person from making images that are similar to yours, even though you may own a valid copyright. For example, if you took the first photograph of the summit of Mt. Everest, I could not copy your photograph of Mt. Everest but I can make my own photograph, though it might look similar to yours. You could, however, prevent other people from scanning your photograph into a computer, manipulating it in the computer, and/or printing it out. Similarly, if you set up a still life arrangement and made an oil painting of it, you could not prevent another person from making a painting or photograph of a substantially similar still life arrangement.

Because it is relatively easy and automatic to get copyright protection for visual images at the instant of creation, you should generally assume that, if you can see an image, somebody probably owns the copyright to that image, and that unless an exception exists to permit unauthorized copying, you cannot use it in any way without getting permission or risking a lawsuit for infringement.

4. Who the Copyright Owner is
Under the current Copyright Act, the general presumption is that the person who created the copyrighted work (the "author") is the owner of the copyright. There are some exceptions, such as for employees who create copyrighted works as part of their job (in which case the copyrights are generally owned by the employer and the employer is also the author), but in most cases the creator of the work, such as a freelance photographer or graphic artist, starts out as the copyright owner. That can be changed by agreement, and as mentioned earlier, other people or entities can be given rights to exercise any or all of the various rights that start out belong exclusively to the copyright owner.

A work-for-hire is a work which is either:
- prepared by an employee as part of his or her job; or
- a work which has been specially ordered or commissioned and that is part of a larger project (such as a motion picture, a compilation, or atlas) if the parties have agreed to treat the work as a work-for-hire.

Works-for-hire are typically owned by the employer or the company that ordered or commissioned the work.

5. How Long Copyrights Last
The Copyright Act was recently amended to extend the life of a copyright by 20 years. Generally, copyrights to works created after January 1, 1978 now last for the life of the author of the work plus 70 years after his or her death. The same is true for works created before 1/1/1978 but never published as of then or published for the first time after then. There are variations for other works created under the 1909 Act, copyrights owned by corporations (95 years), etc., but the general duration for recently created works is life + 70.

The length of copyright protection varies, depending on whether the owner is an individual, joint authors or a corporation. You also need to take into account the year the work was created. For works created on or after January 1, 1978, copyright protection lasts for the life of the author plus 70 years after the author's death. However:
If the work was created by more than one author, copyright protection lasts for the life of the authors plus 70 years after the death of the last remaining author.
In a work that is made anonymously, under a pseudonym or if the work consists of a "work-for-hire" (previously defined), copyright protection lasts for 95 years from the year of the first publication, or 120 years from the year of creation, whichever expires first.

For works created prior to but not published until after January 1, 1978, the rules become more complicated. Generally speaking, any copyright that was created and published prior to January 1, 1978 will last for 28 years from the date it was originally secured. However, a number of works are entitled to renewal periods of 67 years. if you have questions concerning whether a particular work is still entitled to copyright protection, you can check the status of a copyrighted work through the Copyright Office. For more information, see http://lcweb.loc.gov/copyright/circs/circ23.