How Do You Copyright a Photograph or Image

Online digital theft is rampant in today's digital world. I have had my images stolen many times. The thieves even try to sell the photos to other stock agencies online. So, every photographer should have a basic understanding of copyright laws and how to register a copyright for an image. A lack of knowledge or education about copyright continues to cause significant problems in the industry. Taking pictures automatically grants the photographer copyright protection, but additional steps can help enforce those rights. Copyright holders have exclusive rights to their images and can control how their work is used.

For example, when you are shooting for a client, the photographer owns the copyright, and the client merely has the right to use it. If the client wishes to retain the copyright, they must obtain a transfer agreement from the photographer. However, 'Work-for-Hire' is an exception to this rule. If a photographer is an employee hired to take photographs, then the employer retains the copyright.

Another common misconception is that owning the physical image translates to owning the copyright. That is not correct! The mere fact of owning a physical copy of the photograph does not make you the copyright owner. Including a copyright notice and using the copyright symbol (©) on your images is essential to assert ownership and deter unauthorized use.

What exactly is copyright law?

As a photographer, you have the exclusive right to make and (sell or license) copies of your photo, distribute copies, create other art based on the image (derivative works), and display the photograph in public.

Copyright is a legal right that gives the creator of an original work exclusive control over how that work is used and distributed. In the case of photography, copyright provides the photographer with the exclusive right to make copies of their photos, distribute copies, create derivative works based on the images, and display the photographs in public. It also gives the photographer the right to sell or license others' use of their photos. Essentially, copyright serves as a way for photographers to protect and control their work and to be recognized and compensated for their creations.

There are some exceptions to these exclusive rights, such as fair use, which allows limited use of copyrighted material without permission under certain conditions.

What types of photographs can be copyrighted?

All photographs, prints, and slides can be copyrighted, including digital pictures and derivative works to which the original pieces have been added; the new elements added can also be copyrighted.

In general, there are a couple of criteria that make a photograph copyrightable. First, they must be an original work of your creation that you created, and the subject material must not taken by someone else who owns it. A simple example is that you cannot take a photograph of someone else's photograph or trademark and assume you now have the copyright. Although artistic merit or quality of the picture is not required, the US Supreme Court has indicated that it must display a tiny amount of creativity and be the 'fruits of intellectual labor.'

Second, the photograph must be fixed in a tangible medium. This means it cannot be just a thought or abstract idea; copyright protection begins as soon as your original work is fixed in a tangible medium, such as film or a digital file. Whether your images are on your hard drive, in an online portfolio, or even in a social media post, you still retain the copyright to the photos. Just because an image is found online does not mean it is free to use—copyright still applies. Don't worry; you don't need to print out every photograph you own.

Although there is no requirement to register them with the copyright office, there are benefits to doing so that you should carefully consider. Registering your photographs with the copyright office will offer legal protection to your original work, whether you post it on your website, publish it in print media, or provide it as a digital file. Registration also creates a public record of your copyright ownership, which can be valuable in legal disputes.

How Do You Apply for a Copyright with the US Copyright Office?

Although registering your images with the US Copyright Office is not required (the creator is still the copyright holder), it is advisable because when you register, your images prove you are, in fact, the copyright holder if any legal questions should arise. As the copyright holder, you can also grant copyright permissions to others, such as through licensing agreements or Creative Commons licenses, allowing others to use your work under specified conditions. Should an infringement occur, having an impartial party in possession of hard evidence is a powerful position to hold in a court of law.

The first step to registering your images with the US Copyright Office is to visit the official registration portal. You need to follow the instructions carefully. Photography falls under the category 'works of the visual arts.' To complete the registration, you must apply for a copy of your photo and pay a filing fee to the US Copyright Office.

The registration portal provides video instructions on completing the registration, available here.

Responding to Infringement

Discovering that your photographs or images have been used without your permission can be frustrating and even financially damaging. Fortunately, copyright law provides a clear path for photographers to respond to copyright infringement and protect their intellectual property.

The first step when you notice unauthorized use of your work is to document the infringement. Take screenshots, note the URLs, record the dates, and gather any other evidence showing how and where your image is being used. This documentation is crucial if you need to file a copyright claim or pursue legal action later.

Once you have collected evidence, send a cease and desist letter to the infringer. This letter should clearly state that you are the copyright owner, describe the unauthorized use, and demand that the infringing party stop using your image immediately. It's also wise to request the removal of the image from their website or platform, and to confirm once it has been removed. A well-drafted cease-and-desist letter often resolves the issue without further escalation.

If the infringer ignores your request or refuses to comply, you may need to take the next step: pursuing legal action. To file an infringement lawsuit in federal court, your image must be registered with the US Copyright Office. Copyright registration is not only a prerequisite for legal action but also provides additional legal benefits. If you register your work before or within three months of first publication, you may be eligible for statutory damages (which can be substantial) and reimbursement of attorney's fees if you win your case. This is a significant advantage over only being able to claim actual damages.

Photographers should also be aware of the different types of infringement. Commercial infringement—such as using your photo for advertising or profit—can carry greater financial consequences and may warrant more aggressive action. However, even non-commercial use, such as posting your image on someone's website or social media without permission, is a violation of your copyright and should be addressed.

Monitoring your images online is an essential part of protecting your creative work. Tools like reverse image search engines can help you track down unauthorized uses of your digital photos. You can also report copyright violations directly to many online platforms, which often have procedures for removing infringing content.

Understanding copyright ownership is essential when responding to infringement. The photographer who created the image typically owns the copyright, unless the work was created as a “work for hire” (in which case the employer owns the copyright) or the copyright has been transferred in writing. Images created by US government employees in the performance of their official duties are in the public domain and not protected by copyright law.

Internationally, the Berne Convention ensures that your original photographs are protected by copyright in most other countries from the moment they are created. However, to enforce your rights in a US federal court, you must register your work with the US Copyright Office.

For general guidance, the US Copyright Office website offers detailed instructions, downloadable forms, and answers to frequently asked questions about copyright registration and protection. The Fair Licensing Copyright Guide is another helpful resource for photographers seeking to understand their rights and responsibilities.

In summary, responding to copyright infringement requires vigilance, documentation, and a willingness to take action when necessary. Registering your images, monitoring their use, and understanding your rights under the Copyright Act are all essential steps in protecting your creative work. If you find yourself facing a complex copyright dispute, consulting a qualified intellectual property attorney is always recommended to ensure your interests are fully protected.

Note: I am not a legal expert; this is not legal advice and should not be considered as such. The information in this article comes from personal experience running a stock photo agency and internet research. This is not a substitute for professional legal advice on copyright issues, but should be regarded as a basic overview to enhance your understanding of copyright.

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