A lot of the questions involved
the process of copyrighting pictures and what needs to be done to make sure
that the copyright is valid so that if someone infringes on it, you can
successfully sue them in court.
(for purposes of this document,
book refers to Patent, Copyright & Trademark, 12th edition,
Richard Stim, Nolo. Berkeley 2010)
(Items in gray are quotes from the book)
"Photographic
images are protectable under copyright law whether in print or in digital
format." (book p 312)
"Under
the Copyright Act of 1976, an original work of authorship gains copyright
protection the instant it becomes fixed in a tangible form. This means that
such protection is available for both published and unpublished works." (book p
234)
"A work
is ‘created’ when it is fixed in a copy for the first time; where a work is
prepared over a period of time, the portion of it that has been fixed at any
particular time constitutes the work as of that time, and where the work has
been prepared in different versions, each version constitutes a separate work".
(book p 243)
If the
subject is a person, you may need you may need a release from them:
"…a
person who is the subject of a photograph may be able to prevent its
reproduction under legal theories such as the right of publicity, defamation,
or invasion of privacy." (book p 312)
If the
subject is a public building "that is that is ordinarily visible to the public,
photos or pictures of the building can be taken." (book p 213)
However
buildings on private property generally require releases:
"Photographs
of an architectural work created after 1990 cannot be
reproduced without the consent of the owner of the copyright in the
architectural work – usually the architect or the developer." (book p 213)
Pictures
of trademarked items are usually allowed because
"Free speech laws permit the use of
another company’s trademark for purposes of commentary or criticism.’ (book p
438)
If you
chose to incorporate a part of someone else’s work into your image, then you
must obtain their permission, unless your use is considered fair use:
"fair
use—that is the work may infringe, but the infringement is excused because the
work is being used for a transformative purpose such as research, scholarship,
criticism, or journalism." (book p 201).
"Providing
the author’s name will not, by itself, excuse someone from a charge of
infringement, or qualify the use as fair use." (book p 215)
Once you
have created your image and you have the proper permissions for it, if necessary,
then you may chose to register it.
"Registration
occurs when the Copyright Office receives all of the required application
materials associated with an author’s clam and approves the application." (book
p 322)
"Registration
is recommended because it provides several advantages in case of infringement:
Copyright owners must register their work prior to suing for infringement. For
a published work, timely registration must occur within three months of first publication
or before the infringement begins. For unpublished works, registration is
timely as long as it occurs before the infringement begins." (book p 322).
"An
original work of authorship is only considered published under the Copyright
Act when it is first made available to the public on an unrestricted basis." (book p 320)
"Although
the Copyright Office does not take an official position on the issue, it is
generally considered that unrestricted Internet displays amount to publication.
In 2002, a federal court ruled that the posting of a website to the internet
amounted to publication."(book p 320)
"It is more difficult for an infringer
to claim fair use when the infringed work is unpublished because the infringing
publication deprives its copyright owner of the right to determine its
publication date." (book p 321)
"A valid
copyright notice on a published work can prevent the claim of innocent
infringement from being raised." (book p 321)
"Innocent
infringement – when an author honestly believes, based on the circumstances,
that a work is not protected by copyright – does not excuse infringement. It is
however, a mitigating factor when determining the remedies for infringement".
(book p 284)
Once registered, an image is
protected by copyright laws in the US and in other countries as "Copyright protection rules are fairly similar worldwide,
due to several international copyright treaties, the most important of which is
the Berne Convention. Under this treaty, all member countries must afford
copyright protection to authors who are nationals of any member country." (book
p 202)
Also any
variations of that picture are also protected unless they are different enough
to be considered derivative work, even then they have some protections:
"A derivative
work is a work that is based on one or more preexisting works. A work
consisting of editorial revisions, annotations or other types of modifications
which as a whole represent an original work of authorship is a derivative work." (book p 250)
So if
you have your image and someone violates your copyright, then
"In the event someone infringes the
exclusive rights of a copyright owner, the owner is entitled to sue in federal
court and ask the court to issue orders to prevent further violations, award
money damages if appropriate, and in some circumstances, award attorney fees." (book p 200)
If it is
used without your permission on a website then it falls under the DMCA:
"The DMCA is often used by copyright
claimants seeking to have an ISP remove infringing works under its ‘notice and
takedown’ procedures." (book p 252)
"Violations of the DMCA can result
in civil remedies consisting of injunctive relief, actual damages, and statutory
damages." (book p 253)
