This document is Copyright ASMP (American Society of MediaPhotographers, Inc.)  1991.  It is distributed electronically by theonline members of ASMP, as a service and a guide to creators, buyers andusers of intellectual property.  Reproduction and distribution of this document for non-commercial use isencouraged.  Reproduction must remain intact, as a complete whole, andincluding this notice.  The original distribution (July, 1992) was via CompuServe InformationService (CIS). To access ASMP members within CompuServe, GO PHOTOFORUM.  Further information may be obtained from:  Julia Velikson, ASMP Sysop  Internet:  76020.3231@compuserve.com  CIS:       76020,3231               COPYRIGHT GUIDE FOR PHOTOGRAPHERS            by Richard Weisgrau & Michael Remer, Esq.  Copyrights can be valuable intangible assets.  The Copyright Act of 1976made clear that photographers are the copyright owners of their images,except when those images were made as an employee, or when thephotographer has conveyed the copyright to another party in a writtenand signed agreement.  In an effort to enhance understanding of copyright, ASMP has developedthis mini-guide on the subject.  This pamphlet is not a legal guide tothe subject.  Instead it is intended to give you a fundamentalunderstanding of the subject of copyright and how it applies in yourprofession.  COPYRIGHT BASICS  Copyright is a right, granted to you by law, to control the copying,reproduction, distribution, derivative use, and public display of yourphotographs, and to sue for unauthorized use (infringement) of your work.  This right begins at the moment you fix your photographic expression ina tangible form, that is, when you create the latent image on film.Copyright ownership, bestowed automatically when you make an image, doesnot depend upon registration with the copyright office or placement of acopyright notice on the image.  Although most images are copyrightable, some are not.  To becopyrightable, images must be original.  Originality is essential tocopyright.  If you exactly copy a photograph, the copy can not becopyrighted, since it has no originality.  (In fact if the firstphotograph is copyrighted, you would need the original photographer'spermission to copy it.)  Making a substantially similar copy of someone else's copyrighted imagewithout authorization constitutes copyright infringement.  It is usuallynecessary to show that the alleged infringer had access to the originalwork-but the images may be so closely identical that no explanationother than copying is possible.  Ideas, themes and concepts are not copyrightable, Only the originalexpression of those ideas, themes and concepts in some tangible form,like a photograph, can be copyrighted.  You might have an idea for agreat photograph, but you get no copyright until you make the actualphotograph.  An art director might have a great concept, but thatconcept cannot be copyrighted.  Having an idea or concept does not entitle one to a share of thecopyright of the photograph.  The copyright belongs to the one who makesthe tangible expression of the concept or idea.  COPYRIGHT REGISTRATION  Copyrights can be registered with the Copyright Office in Washington,D.C. Although registration is not required to own the copyright, thereis one instance in which you must have a registration and another whenthere is a definite advantage to registration.  When legal action is necessary to remedy a copyright infringement, theimage must be registered before the legal action can be started.  Thisregistration can be made after the infringement occurs.  However, unlessyou register before the infringement (or within three months after thefirst publication even if after infringement, you will not be able tosue for statutory damages, which are up to $100,000 per infringementplus your legal fees.  When statutory damages are unavailable to thecopyright owner a claim can still be made for actual damages, that is,the amount of money lost as a result of the infringement plus the amountof profits realized by the infringer.  But actual damages can bedifficult and expensive to prove, and legal fees can be an additionalburden.  A photographer should always seek legal advice from a qualified attorneybefore threatening a copyright infringement action.  COPYRIGHT NOTICE  ASMP recommends that all photographs carry a copyright notice, eventhough it is no longer required by law.  The lack of notice couldprovide an infringer with a defense of "innocent infringement". Thisdefense could seriously limit the recovery of damages in an infringementclaim.  Copyright notice is a way of saying: This is my work - if you want touse it, come to me.  This stance reinforces the asset value to your workand alerts everyone that you are prepared to protect that value.  Copyright notice consists of the letter c in a circle (C) followed bythe date of first publication and the photographer's name.  For example,(C)1991 (Creator's Name). The word "Copyright" or "Copr."  can besubstituted for the (C). Either form is recognized, but use of the (C)symbol can give additional international protection.  The words "AllRights Reserved" can also give further international protection.  A word of caution is called for on the subject of notice.  Some personswhen typing or wordprocessing and some computer programs use a c inparenthesis [(c)] as a substitute for a (C) . To the best of ourknowledge this form of notice has never been rejected by a court, butthere is no guarantee that a court would uphold a (c) as proper notice.The law calls for a (C) or the word "Copyright" or "Copr."  LICENSING THE RIGHT TO USE YOUR PHOTOGRAPHS  As the copyright owner, you have to license someone to use your imagebefore they can legally do so.  A license is simply a permission to usethe photograph with certain limitations.  A non-exclusive license does not have to be granted in writing-althoughASMP strongly urges all photographers to grant licenses in written form.This avoids subsequent disagreements about the terms of the license.  Inthe absence of a written license, the photographer and client are in anawkward position.  If a dispute over usage arises differingrecollections of rights granted can only be resolved by negotiation orlegal action.  Needless to say legal action, a last resort, is certainlycostly and to be avoided if possible.  Negotiation, while suitable toresolve disagreements, is best done before use begins, not after thefact.  Negotiate the license, then confirm the usage rights in a writtencopyright license.  Under the copyright law, an "exclusive" grant of rights means a transferof all or part of copyright.  Avoid these words, unless you intend totransfer copyright ownership to the client.  If a client insists or you wish to offer exclusive rights considerlimiting the rights as you would limit any other grant of rights.  Thatis, you should properly grant the exclusive rights for a certain timeperiod, a certain geographic area, and a certain media, such asadvertising, books, etc.  By applying limitations to the exclusivelicense you are narrowing the transfer of copyright.  By setting a timeperiod you are assuring the expiration of the transfer.  More information on copyright licensing, and samples of copyrightlicenses can be found in the ASMP FORMS booklet, and in the ASMPAssignment Photography monograph.  The rights which you license should be based upon the outcome of thenegotiations which you have conducted with your client.  Generally, youwill grant rights to meet the particular uses for which the client wantsthe work.  The fee will usually increase as the bundle of rights grantedincreases.  TRANSFER OF COPYRIGHT  You can transfer copyright ownership to another party.  Copyright, likeany asset, can be bought and sold.  The only requirement in the law isthat a transfer of copyright ownership be in writing and signed by thecopyright owner.  Photographers should exercise care in signing clientpurchase orders.  ASMP has seen many examples of purchase orders whichhave a copyright transfer included in the terms and conditions.  Signingsuch a purchase order would result in the loss of your copyright.  There is no law that says you have to transfer copyright to a client.Remember, even though the client might be the originator of the conceptor idea this does not entitle them to the copyright of the photographwhich you, the photographer, originate.  WORK FOR HIRE  Work for hire is another way the client can become the copyright owner.The difference between work for hire and a copyright transfer is rathersimple.  In the case of a copyright transfer you own the copyright untilyou transfer it.  In a work for hire situation you never own thecopyright.  It is owned by the client from the moment the work iscreated, and the client is by law the author of the photograph.  The