Ever wondered if your photo editing is pushing legal boundaries? The world of image copyright can be a confusing one. This lack of clarity often leads to misconceptions and potential legal trouble.
Whether you’re a seasoned photographer, just starting your creative journey, or a brand building its visual identity, understanding how copyright applies to photo editing is essential.
This article expands your photography education by giving you a clear and concise breakdown of U.S. copyright as it applies to photo editing.
We’ll break down the essentials of U.S. copyright laws, and provide you with actionable tips to help you protect your creative work and avoid copyright infringements.
Understanding copyright laws
Copyright laws inform how we use intellectual property, such as photographs, films, and literary works, and are designed to protect creatives from exploitation and abuse.
Copyright laws give you legal ownership over your works and inform you of your exclusive rights to reproduce, use, and distribute them, and safeguard your work from theft or unauthorized use, an illegal practice called copyright infringement.
When you have copyright ownership over your images, and other creative works, you can decide who, how, and when your work can be used.
A violation can prompt authorities to serve the wrong party with a copyright infringement notice forcing them to remove the copyrighted image from public view or face a lawsuit.
In such cases, victims of copyright infringements are awarded compensation in statutory damages.
Key factors in copyright ownership
Although the requirements for image copyrighting vary depending on where you are, some key factors are common in most countries.
- Originality: The photograph must be an original, creative, and intellectual work of art by the author. This means the photographer must have taken the picture with their camera.
- Form: For an image to be copyrightable, it must be depicted on canvas, paper, or digital format that can be communicated, reproduced, or perceived by others.
- Independently created photos: Your photo should be the product of your own skill and expression. Simply taking a picture of something doesn’t qualify for copyright if it lacks originality. Functional or purely mechanical reproductions wouldn’t be protected either..
- Ownership: The creator of a photograph is the initial copyright owner unless the picture was created under a “work for hire” agreement, in which case ownership of the image may be given to the employer.
U.S. copyright laws
Although copyright laws vary globally, the general consensus is that an image must be an original work of art or composition to be copyrighted. These laws apply to commercial photographers, advertisers, and publishers.
The first federal copyright law, the Copyright Act, was established in 1976. Since then, it has been revised four times and amended several times.
A notable amendment is the 1998 Sonny Bono Copyright Term Extension Act, which added 20 years to the duration of copyright for protected works of art after an author’s death.
This extended copyright protection of literary and artistic works from 50 years after a creator’s death to 70 years.
In the same year, the Digital Millennium Copyright Act (DMCA) brought the U.S. into compliance with international copyright treaties, strengthening protections for creators in the digital age.
These are the WIPO Copyright Treaty, which covers copyright protection of electronic works, and the WIPO Performances and Phonograms Treaty, which covers copyright protection of performed works.
How does copyright protection work?
Copyright protection is automatically granted when an artist creates an original work, such as a photograph.
The term “copyright” literally means the right to copy.
Therefore, copyright laws grant copyright owners the right to adapt, reproduce, distribute, and publicly display or perform certain works of art. This means you control the use of your artistic works and benefit from them monetarily.
Under U.S. copyright law rules of ownership, the creator of a work of art, such as a pictorial, graphic, or audiovisual creation, is the first owner of the copyright.
Work for hire
If an artist takes a photograph under an employment contract in a “work for hire” situation, the employer becomes the owner of copyright.
A work-for-hire situation occurs when a photographer takes a picture while working for an employer for an identified purpose, such as a model photoshoot. In this case, the employer paying for the photo shoot owns copyrights to the images.
The U.S. Copyright Act limits the rights of a copyright owner to some extent, for example, regarding “fair use.” Some examples are news reporting, commentary, and scholarly reports.
Derivative work
What happens if someone creates a derivative work of your photograph, such as an illustration? A derivative work is made from an original image using applications like Photoshop.
Creating a derivative work of a copyrighted photo without the owner’s written permission is classified as copyright infringement.
What happens if someone infringes your copyright?
If your work is used without your permission, you can pursue legal action.
However, you must have registered your work for copyright protection with the U.S. Copyright Office to get help from the Copyright Claims Board (CCB).
The Digital Millennium Copyright Act (DMCA) protects photographers whose images are misused online. This act gives artists the right to contact ISPs (Internet Service Providers) and ask them to remove a copyrighted image from a website.
You can also report the use of a copyrighted image on a website to DMCA.com.
How to protect your work from copyright infringement
As mentioned above, registering a copyright provides an extra layer of protection for your creative work and gives you prosecutable rights if your work is copied or published without permission.
Although a work of art such as a photograph is protected from the moment it is depicted on canvas, paper, or digital format, the U.S. copyright office recommends you make a public record of your ownership. This will help you when pursuing compensation for copyright infringement.
If your photograph is not registered with the U.S. Copyright Office, you may only recover actual damages, which is the “fair market value” of your work.
However, if you register your work, you may get “statutory damages ” of up to $ 150,000 in compensation plus legal fees.
How to register with the copyright office
Register a photograph with the Copyright Office within three months of publishing it. You apply for copyright protection by registering your work with the U.S. copyright office for a fee and leaving a copy of your work, called a “deposit,” there.
Marking your work of art
Marking a work of art, such as a photograph, is also beneficial because it serves as proof of copyright ownership in case of copyright infringement.
The Copyright Act prohibits an infringer from saying they didn’t know a work of art was copyrighted if a notice is placed on it.
- Using the copyright symbol: This notice should include the universal copyright symbol ©, the word “Copyright,” or the abbreviation “Copr.” It must also include the name of the copyright owner and the year the work was created, for example, © Bill Ellen 2022. You can also add an “All rights reserved” statement to the notice.
- Metadata: Some artists embed their contact and copyright information in the image metadata, a practice known as “poor man’s copyright.” This allows anyone interested in using the work of art to contact you and ask for permission to use it.
- Watermark: Another common way of protecting pictures from copyright infringements is overlaying a digital watermark over them. A watermark is a translucent text or image superimposed at the center or corner of a photograph to prevent people from copying the image without the creator’s consent. Watermarks contain identifying elements, such as the creator’s name or brand logo, that make it easy to identify the photographer as the image creator.
Removing these identifying marks without an author’s permission acts as proof of malicious intent. Creatives can use such evidence in copyright lawsuits when seeking compensation.
Advanced methods of protecting original works exist, such as using sophisticated software to add unique markers invisible to the naked eye to the pixels of a photograph.
In cases where artists have yet to protect their works in the ways outlined above, it is generally considered good professional conduct to acknowledge the owner of a work, such as a photograph, when using it in a publication or exhibition. For example, by placing a caption saying “image by (artist’s name)” under the picture.
What do copyright laws say about photo editing?
Photo editing is the art of modifying photographs using computer software such as Photoshop on Mac.
This type of editing is commonly used to retouch photographs predominantly to make them look better.
This is often done in commercial photography on posters, magazines, newspapers, and billboards.
Under copyright law, anyone wishing to republish, print, publicly display, or edit a work of art, such as a photograph, needs written permission from the owner.
Photo editing copyright case
You may face a lawsuit for editing an artist’s photo using a photo-editing application and publishing it as your work of art.
This was illustrated in the 2005 Jonathon Mannion v. Coors copyright case in the U.S. when Coors recreated a photo by Jonathon Mannon for use on an L.A. billboard ad.
Coors claimed to have changed the “look and feel of the photo,” but the courts ruled in favor of Mannion.
So, if you find someone publishing an edited version of your photograph as their own, you can ask them to take it down. If they refuse, you have the right to sue them for copyright infringement.
Alternatively, send them a written communication via email or an official letter with an invoice attached asking them to pay for using your artwork.
If the infringer continues to use your photos without permission, seek legal advice from a legal attorney on how to prosecute the perpetrator for copyright infringement.
Unrealistic beauty standards in photo editing
Another significant issue associated with photo editing is distorting body images to project unattainable ideas of beauty in items such as magazines and billboards using applications like Photoshop.
This common practice has been proven to contribute to eating and mental disorders among consumers. Seeing heavily edited photos online can distort perceptions of beauty and create unrealistic expectations. This is especially true for teenagers who are more susceptible to social comparison. As a result, they may experience lower body image and dissatisfaction with their own appearance.
As a result, legislators in countries like France and Israel have published laws that require all Photoshop retouching on model photography to be acknowledged.
These regulations mainly apply to model photography for commercial use in ads for magazines, billboards, newspapers, and posters.
Health professionals in Canada pushed lawmakers to include a similar disclaimer on photography in Canadian laws.
This disclaimer states that photographers should inform the public when they edit a photo in an easy-to-read, accessible, and well-displayed notice on a promotional message or advert.
However, in the U.S., such disclaimers don’t always work. In 2011, the U.S. National Advertising Division, a regulator in the advertising industry, banned a Proctor & Gamble CoverGirl mascara ad for enhancing the model’s eyelashes in the ad, even though this was disclosed to consumers.
How to protect yourself from copyright infringements
What happens if your photograph is used in mobile applications such as Facebook, Instagram, Face app, or Snapchat?
These applications have broad rights, which they access through terms and conditions, to use personal information such as a user’s photograph.
Some examples are perpetual, nonexclusive, irrevocable, royalty-free rights to reproduce, use, and modify user content, allowing them to publicly display these photos.
Such rights remain even after users delete their images from these photo editing applications.
This is just the tip of the iceberg.
In addition to photo editing applications, people copy or misuse original photographs on the Internet.
Although this is discouraging for creators of original works of art, there are ways to protect yourself as an artist and stop people from earning illegally from your photography.
- Store evidence of your copyright ownership over a photograph. These are time-stamped records of the image creation process, such as photoshoot plans, communications with models and technical staff during the shoots, copies of model releases, and RAW files of photographs that prove they were shot on your device.
- Monitor: Use tools that automatically scan the Internet for unauthorized copies of artists’ works, such as Pixsy, to monitor who uses your photographs on the web.
- Run a reverse image search (RIS): Use Yandex or Google to check the Internet for images that look like yours online. This search will highlight other examples of your work online.
- File complaints: Deal firmly with infringers by issuing them with Digital Millennium Copyright Act (DMCA) takedown requests. You can also seek legal advice from a copyright lawyer who can help you get compensation for revenue loss.
- Sell post-licenses through Fair Licensing: This converts illegal use of your photographs to authorized use at a price that includes retroactive compensation.
How to use copyrighted images
Are you an artist interested in using copyrighted photographs in your work? The pitfalls surrounding copyright laws in photo editing should not discourage you from legally using copyrighted pictures in articles or photo exhibitions.
Buy a user license
You can buy a user license to use an artist’s photo in your project from a stock photo website. This is a legal contract permitting independent artists to use a copyrighted photograph.
Some examples of user licenses are royalty-free licenses, rights-managed licenses, custom licenses, and free-use licenses.
Use images in the public domain
If you are averse to paying for a license to use a copyrighted image, use those in the public domain. These are photos whose license has expired or whose owner has relinquished their copyright.
Use Google Images’ “usage rights” filter to find “free to use” photographs and those in the public domain.
Copyright transfer
Buying an image from an artist and transferring the copyright to yourself is also possible. This usually occurs with very unique works of art and is usually very expensive.
Fair use
As mentioned above, copyrighted images can be used under “fair use” without an owner’s permission or payment if they are used for non-profit educational purposes, such as news reporting. Fair use is extremely risky and is best left to professionals.
Takeaways on navigating copyright laws in photo editing
The ever-evolving landscape of intellectual property law underscores the importance of staying informed. This knowledge allows you to stay on the right side of the law whenever you edit photos that don’t belong to you.
Additionally, by understanding your rights as a creator, you can navigate copyright with confidence and ensure your creative work is protected.
Remember, copyright safeguards your photos from unauthorized commercial use, whether it’s on billboards, magazines, or online. Take advantage of these laws – they empower you to reap the full benefits of your artistic endeavors.
