Copyright Protection Basics

Miss California's troubles are all over the news today. Like most aspiring models and beauty pageant contestants, she is unaware of Copyright laws concerning ownership and distribution of photo's. If she had signed the right kind of Model Release she could have prevented the release of her simi-nude photos.

So I'm republishing a story I did back in 2006 on my MySpace Blog. I see so many bulletin posts, complaining about this person stealing their pictures, and/or that person impersonating them online. In reference to the photographic images, both case are protected by Copyright law. As models, actress, and actors your photographic image is your lively hood. In music art, literature, and software, copyrights are just as important. It insures your recognition in the industry, income for your labor, and the legal right to sue for damages.

------------------------

So what is a Copyright?

According to the US Copyright office (http://www.copyright.gov/circs/circ1.html#wci) A Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

** To reproduce the work in copies or phono records;
** To prepare derivative works based upon the work;
** To distribute copies or phono records of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
** To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
** To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
** In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

All that binging said; a Copyright is nothing, without the "Owner" actively protecting his/her rights by declaring their ownership and/or registering it with the US Copyright Office. That is why, you always see the big boys stamp their publications, websites, pictures, and films with the copyright symbol and a public notice that "all rights are reserved"! (for example Copyright © 2006 by InterServe Networks/City Lights Software, Inc. All rights reserved.)

For purposes of this discussion, all your pictures, should be stamped with the name of the copyright owner (if not the full copyright notice) It is up to YOU to protect and ensure your legal rights. If you don't...then it can be assumed in court, that you gave a public release to use the pictures.

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

Registration establishes a public record of the copyright claim. Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin. If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

So Who Is The Legal Owner Of A Photograph?

Copyright protection subsists from the time the work is created in a fixed form. The copyright in the case of pictures immediately becomes the property of the person who created the work (normally the photographer). Only the creator or those deriving their rights through the person who created the image can rightfully claim copyright (think release form).

Now for the model to own the copyright, she must hire the photographer. In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as:

(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as:
a contribution to a collective work (think calendar)
a part of a motion picture or other audiovisual work

A part of a magazine or advertisement
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire....again, think release form.

So When Does The Above Copyright Rules "Not" Apply?

It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of a copyright. These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of "Fair Use," which is given a statutory basis in section 107 of the 1976 Copyright Act. In other
instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties, and/or compliance with statutory conditions. For further information about the limitations of any of these rights, consult an copyright attorney or write to the Copyright Office.

What Is Fair Use?
(http://www.law.cornell.edu/uscode/17/107.shtml)

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a Fair Use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.