1. Copyright/Copywrong in Image Licensing
The PowerPoint presentation is intended as an overview to teach the basics of copyright and how it applies to image licensing. It is complete with speaker notes and visual samples supplied by PACA members. A section at the end discusses the enforcement of copyright on the Internet. The presentation is available for download for teaching purposes on a royalty-free basis provided you attribute it to PACA. You may not repackage or sell the presentation. You are free to include your own examples and anecdotes The current document version is "PACA Copyright
© PACA 2008
January 8, Picture Archive Council of America

2. Popular Copyright Myths
If an image is on the internet/Google it is in the public domain.
If there is no copyright notice on the image, I don’t need permission.
If I don’t profit from the use, I don’t need permission.
If I remove the image after notice, I don’t owe any money to the copyright.
If I alter the image X% I don’t need permission.
If I only use a part of the image I don’t need permission.
THESE ARE SOME COMMON MYTHS THAT THIS PRESENTATION IS MEANT TO DISPELL
The internet has made information and images available at everyone’s fingertips, however, what exclusive rights belong to a copyright holder, and the uses that do not require permission are not well understood. Hopefully, this presentation will make these issues a bit clearer or at least better understood.

3. Copyright Basics The US Constitution gives 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.”
Source of US copyright law comes from Article 8 of the Constitution
The founding fathers recognized that the science and arts would benefit from allowing an artist to control rights and derive an economic benefit from the work created. This is contrary to many user groups who now argue that the arts and sciences would progress by allowing users unfettered access to artist’s works without permission.
The full US Copyright Act can be found at 17 United States Code.

4. When do you acquire copyright protection?
Copyright protects “original works of authorship” that are fixed in “a tangible form of expression.”
Rights begin at the moment of “fixation.”
The fixed form does not have to be directly perceptible so long as it can be communicated with the aid of a machine or other device.
“Original” is a minimal level of originality. Excludes telephone listing, order forms and other items that can only be expressed in essentially one way. It does not require “creativity”. Almost any photograph can meet the minimum level of creativity.

5. What is protected?
literary works (all text, including computer software)
musical works
dramatic works
pantomimes and choreographic works
pictorial, graphic, and sculptural works
motion pictures and other audiovisual works
sound recordings
architectural works
Photographs, illustration and computer generated graphics are protected as “pictorial, graphic and sculptural works”
17 USC Section 102(a)

6. What is not protected? ideas, concepts, or discoveries
titles, names, short phrases, and slogans
works that are not fixed in a tangible form of expression such as improvised speech or dance
works consisting entirely of information that is commonly available and contains no originality
anything written or created by the US government
Remind the audience that other laws may protect these categories, for example, short phrases could have trademark protection.
Section 102(b) excludes ideas, processes, etc.
Section 105 –copyright not available for US Government works-but government may hold a copyright
Copyright does not protect the IDEA only the EXPRESSION of the Idea.
Question always for a creative person, where to draw the line, where does the idea stop and the expression start? How much can you be influenced by an idea without taking copyrightable expression?

7. What rights does the owner control?
Rights to:
make copies of the work
distribute copies of the work
perform the work publicly (such as for plays, film, or music)
display the work publicly (such as for artwork, or any material used on the internet or television)
make “derivative works” (including making modifications, adaptations or other new uses of a work, or translating the work to another media)
Section 106 describes exclusive rights a copyright holder controls.
These rights are exclusive to the copyright owner and permission is needed, unless there is a specific exception such as fair use, or limited use for preservation by libraries or for use in education under the TEACH Act which permits certain performances and displays. These exemptions are limited so its better if uncertain to assume that permission is needed to use a work.
(For statutory limitations, see Sections 107 (fair use) 108 (libraries and archives) 110 (education). Other exemptions exists under the Copyright Act as well).
Copyright is like owning a bundle of sticks (like pick up sticks). You can give different users different rights/sticks. The same image can be used on a magazine cover, in an advertisement, in a website design or incorporated in a documentary film, for example.

8. How long does copyright protection last? (Current Act)*
for the life of the author, plus 70 years
95 years for corporations
The current act has been effective since Under the old Act of 1909, there was a 2 tier system for published and unpublished works. Published works required registration and subsequent renewal during the 28th year. As there have been many amendments extending the second renewal term, the term for pre 1978 works is very confusing. It is best to consult some very comprehensive charts available through the Copyright Office website where you can find circulars on copyright duration or some university websites such as Cornell Law School
Circular 15a-Duration of Copyright
Circular 15t -Extension of copyright term
*since 1978

9. Duration (pre 1978 and post 1978)
DATE OF WORK
PROTECTED FROM
TERM
Created
January 1, 1978
or after
When work is fixed in a tangible medium of expression
For works of individual authorship:
Life + 70 years
For works of corporate authorship: the shorter of
95 years from publication, or 120 years from creation
Created before January 1, 1978 but not published
January 1, 1978, the effective date of the 1976 Act which eliminated common law copyright
Life + 70 years or December 31, 2002, whichever is greater
Created before January 1, 1978 and published by December 31, 2002
January 1, 1978, the effective date of the 1976 Act which eliminated common law copyright
Life + 70 years or December 31, 2047, whichever is greater
Example of a chart
Published from
When published with notice
28 years for first term; now automatic extension of 67 years for second term
Published from
When published with notice
28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published
before 1923
In public domain
None

10. What is Public Domain? works out of copyright
US - All published works before 1923
works that fell out of copyright for failure to register or renew under 1909 Act or for lack of notice before 1989

11. Is copyright notice needed?
since March 1989: copyright notice is no longer required for published works
notice is voluntary but recommended
proper notice: © year, name
Recommend where possible to include notice or at minimum a credit. It prevents someone from claiming innocent infringement and a reduction of damages. It helps identify the copyright owner or representative. You cannot lose copyright by no notice or improper notice. If an orphan works amendment to our copyright law is enacted, it will assist in locating the copyright holder and avoid having a protected work be considered an orphan that can be used without permission. With digital artwork, you can include the copyright owner name in the meta data.
As credit or attribution is not required in most instances under the US Copyright Act, it is not an infringement if a work is used without credit. Credit can only be required by contract. Credit should be requested and required with any non-advertising use and included in the license agreement. If a work is licensed through a representative, the representative may share the credit line with the copyright owner as a source credit (i.e. Photographer name/photo library). Most advertising uses do not include a credit notice. This is result of industry practice. An advertisement is made up of various components, including the artwork, so credit is not given to any one party.

12. Who owns copyright?
a freelance artist who created the copyrighted work
an employer who hires employees who creates
copyrighted works as part of their job
Just because a company pays a freelance artist to create an image, does not transfer copyright ownership. A transfer requires a writing signed by the author unless you are a true employee.

13. Can copyright be transferred?
Non-exclusive rights can be transferred without a writing.
Exclusive rights require a writing signed by copyright holder or authorized representative.
Section 104 of the Copyright Act requires a writing for a transfer to be valid (except by operation of law)

14. Limitations on owner’s rights
"Fair Use" doctrine allows limited copying of copyrighted works for educational and research purposes.
The copyright law provides that reproduction "for purposes such as criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" is not an infringement of copyright.
This is a defense to infringement and is limited in scope. If a use qualifies as fair use is decided by the courts, which balance various factors, and is decided on a case by case basis: Think GUIDELINES, not RULES.
the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work; factual or more artistic
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
Factor 4 is given the most weight. Courts talk about whether a work is “transformative”.

15. What is Fair Use?
class handouts of very short excerpts from a book, magazine, newspaper, etc.
quoting for purposes of reporting the news or criticizing or commenting on a particular work of art, writing, speech or scholarship
The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific percent of a work of visual art that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. Fair use is determined by the courts on a case by case basis and there are no precise rules to determine when the exemption applies.

16. What is not Fair Use?
using a photograph or other image to illustrate a newsworthy story (because the subject of the story is newsworthy it does not make the image newsworthy)
creating a similar photograph that incorporates elements of the first photograph
Examples:
When a celebrity dies, the death is newsworthy, but any photograph of them is only descriptive and must be licensed.
However, if a famous artist’s dies, the news media could show a few samples of his or her most recognized artworks without permission.

17. Parody?
Example of what is not “parody”. Photographer went to a trade show and found that the portrait of Bob Dole that was published on the cover of Time magazine was on a promotional bag for Infotrac. No permission had been granted.
The name DOLE is being parodied, not the photograph. Because it is amusing, does not mean that it is a parody. For parody to apply, the comment should be on the photograph itself, not the name. Any portrait of Dole would have sufficed. There was nothing about this particular photograph that lent itself to this treatment. Access to images on the web and desktop publishing makes these types of infringing uses hard to resist by some designers.
Why was the photographer upset? When a photograph is misused, the subject often blames the photographer, whether there is any connection or not. He was concerned that he would lose access to politicians as a result.

18. Change of medium is still an infringement
Koons v. Art Rogers 506 U.S. 934 (1992)
Sculpture artist Jeff Koons lost this copyright infringement case. The artist asserted it was fair use to change a photograph into a 3 dimensional work without obtaining a license. The court disagreed finding that substantial copyrightable elements were borrowed despite the change in medium. In this situation Koons was a famous sculptor and Rogers was a commercial photographer. Koons specifically requested that his artisans copy the photograph exactly. He was seeking to copy the “expression” of the couple holding the string of puppies.