Consequences of not following third party photo usage restrictions

Stephen Gillen

Stephen Gillen

Q: What happens if, notwithstanding your best intentions, a 3rd party photo usage restriction escapes your notice and your lapse is detected by the photographer or stock agency?

A: Steve Gillen, lawyer and partner in the intellectual property firm of Wood Herron & Evans:

“Well, about the best you could expect is that you will be deemed in breach of your contractual commitment and held to account for what you should have paid for the uses you actually made. More likely, however, is a claim that you have made an unauthorized and infringing use of a copyrighted work outside the scope of any license you might have had. In this event, the copyright owner has some very potent strategic advantages and remedies at his/her disposal: [Read more…]

What you need to know about using third party photos

copyrightToday’s business models for licensing third party photography are sufficiently complex that it’s worth taking a few minutes to review the basics and get familiar with the terminology.

Categories of Use: Editorial vs. Commercial

Professional photographers and stock agencies group their work into three broad categories based not on the nature of the photos but instead on the use to which they will be put: editorial, commercial, and retail. Retail use concerns photography commissioned for personal use, and thus is of little consequence to book publishers . . . except, perhaps, for that studio portrait you supplied for the back cover or “about the author” page of your book, a use for which you may have neglected to get the necessary license. Editorial use concerns photography which will be used in a book, e-book, magazine, online, or in a presentation or video that is journalistic, educational, or expository in nature. Commercial use, conversely, concerns photography that will be used in advertising and promotion to sell or market a product (including a book), person (including an author), company (including a publisher), or service. [Read more…]

How to apply for copyright

Lisa Moore

Lisa Moore

Q: How does one apply for copyright?

A: Lisa Moore, Principal, The Moore Firm, LLC:

“It’s very easy to apply for a copyright registration. You can do it online. The Copyright Office’s website is actually an excellent resource.

The process is changing. Back in the day, you had to fill out the form depending on what you were registering. The Copyright Office changed that, and they’re now utilizing one common form that can be done online. It’s much cheaper that way, $35 and you get your registration back much more quickly. If you mail in the old paper forms it takes somewhere between a year and two years to get it back, but if you do it online it’s somewhere between three and six months. Copyright infringement matters have a very short statute of limitations, so it’s critically important that you register as soon as possible.

In the overwhelming majority of jurisdictions in the United States, if you don’t have a registration back from the U.S. Copyright Office you cannot institute litigation. There are only a handful of jurisdictions where simply having made application, even though you don’t have the filed, stamped registration back, they will allow you to invoke the jurisdiction of the courts.

The other benefit of doing it early is that you can register multiple unpublished works on one form and save yourself a lot of money. The copyright form in and of itself is about nine questions and half of them are your name and address. It’s very easy to do.”

Who owns the copyright to coursepacks I create for my lecture?

Q: “My question concerns my coursepack for my lecture, which is sold at our college bookstore. I created it at my home office using my own computer. It contains my own original illustrations, graphics, and charts. I contend that this is my intellectual property while the bookstore has recently made an attempt to copyright all coursepacks in the name of my college. I am quite sure that my college is taking liberties that it has no right to legally. What is the best method for me to proceed to prevent the college from stealing my intellectual property?”

A: Steve Gillen, publishing-law lawyer:

“As a general rule, you have a copyright in any original work of expression prepared by you and that right vests automatically the instant your work is recorded in a tangible medium. Provided the illustrations, graphics and charts in your course pack were created by you and not copied or adapted from some other source, this default rule would vest ownership of the copyrights in you. An important exception to this default rule is known as the work-for-hire doctrine. [Read more…]