We’ve all taken a photo at least once before. It’s literally as easy as pushing a button. Once you have taken the photo, the next question to ask is who owns the copyright to the photo? It may be surprising to some of us, but the person who owns the copyright is generally the person who took the photo! That means if you ask your friend to take a photo of you, that friend is considered the “author” and owns the copyright to the photo. That applies even if its your photo!
Yes, there is copyright in photos
Photos are expressly stated to be one of the categories of work that qualify for copyright protection under federal law. 17 U.S.C. § 102 states that “[c]opyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.”
Photos would generally qualify as a pictorial work.
Click here to read more about 17 U.S.C. 102.
This idea raised some interesting issues
In the past few years, an interesting case arose due to this idea. That case was Naruto, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., v. John v. David John Slater, Inc., or (Naruto & Peta v. Slater for Short). The whole dispute revolved around who owned the copyright to the photos of a Macaque.
In short, Slater is a photographer who set up his photography equipment in a wildlife reserve so the macaques could take pictures of themselves. Although it seemed like it took awhile, macaques, including Naruto, eventually proceeded to take pictures of themselves using Slater’s equipment. Since it’s Slater’s equipment and he took the time and effort to set everything up, you’d probably think that Slater would own the photo’s copyright. That’s where things got bananas and People for the Ethical Treatment of Animals (“Peta”) brought the suit claiming that the actual owner of the photos is the macaque (Naruto) that took a photo of itself. Moreover, what’s even more fascinating is that the case went all the way up to the Federal Court of Appeals for the Ninth Circuit! The case ended up being dismissed on the claims and the Court stated that “animals other than humans—lack statutory standing to sue under the Copyright Act.”
Click here to read the Court of Appeals for the Ninth Circuit’s full opinion.
So how would you get ownership of the copyright if you didn’t take the photo?
One way to obtain ownership of the copyright embedded in the photo is to get a signed agreement transferring all rights, including the copyright. Or simply, have the photographer sign an agreement stating that he/she/macaque will transfer all rights over to you. Sometimes, paying for the photos may not be sufficient and some sort of written agreement is needed.
So I have copyright protection for my photos. What protection do I get exactly?
17 U.S.C. § 106 explicitly states that “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) 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, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”
Generally, anyone who engages in any of the above acts without authorization will be committing copyright infringement.
Click here to read more about 17 U.S.C. § 106.
Lets use a real life example!
So let’s pretend Photographer A takes a picture of you. It’s a great photo and you love it and you post it on social media. But it’s such a great photo that people copy it and then print it out without your permission. You want them to stop, but you remember copyright law and realize that unless Photographer A signs the copyright of that photo over to you, you may not own the copyright. So you go back to photographer A and have him/her sign an agreement saying that he/she hereby gives or assigns all the rights in that photo. Now you can enforce the copyright in that photo! Generally, this would allow you to stop others from reproducing an exact copy of the photo or making some sort of variant of the photo.
What are your thoughts on who owns the copyright to a photo? Leave a comment below to let us know what you think!
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Disclaimer: This article is not legal advice. It is only for educational or entertainment purposes only. Please do not use the article or contents of the article without permission. For legal advice and questions, please contact registered Patent Attorney Vincent LoTempio.