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RE: filmscanners: Jay Maisel Interview with Pictures and Link...
Roger,
Since
the topic has come up on each and every list I belong to at one time or another
in a recurring manner, I have decided to respond to your post in private because
I think that there are a few things you should be aware of.
First,
your presentation of information tends to confound factual information contained
in the law and from government sources with advisory information and suggestions
made by lawyers and writers discussing the subject. According to the
current copyright law, it is not necessary to use a copyright notice. The
fact that it might help in court is a legal suggestion by lawyers and others but
not in the statute itself or any of the interpretations of those statutes.
If one registers one's copyright, in contrast to not registering it, one is
afforded certain additional benefits under the law in terms of such things as
the ability to bring legal action in the Federal Courts as a copyright
infringement case rather than in the state courts as a theft of services
or a civil lose of income case, the ability to receive mandatory minimum
punitive damages in addition to actual damages, and the right to collect legal
fees and expenses if one wins.
>Just as important, all photographs subject to theft
(i.e.,anything on the Internet) should be registered with the copyright office
at the Library of Congress.
May be
but do not have to be; and such registration is only necessary if you wish to
pursue an infringement case under the copyright law in federal court.
Otherwise, you can bring both criminal and civil action against the theft or
unauthorized appropriation of your work under state laws in state courts without
registering your copyright with the Library of Congress.
Second, when you said, "The copyright expires after a
certain number of years (I don't remember the specifics) and the clock starts
running the moment the
art work is "fixed in media," not when it's
published," you are wrong. That was the old law; the new law grants
the copyright automatically to the original creator for their lifetime
plus so many additional years. At the end of that time the copyright
expires and is not renewable.
Thirdly,
>Your model can sue for invasion of privacy.
This
is an entirely different legal issue having nothing to do with copyrights or
copyright law; copyright law is a federal statute while invasion of privacy
statutes and civil cases are covered by state law and under state
jurisdiction.
Fourthly,
>A
photograph created in 1981 and published in a book this year would be "Copyright
1981."
The book itself (meaning it's author's artistic and creative
content, text,
etc.) would be "Copyright
2001."
I am
afraid it is not all that clear-cut and unambiguous. It all depends on
when the photograph was first "publicly displayed" which is the definition of
"publication" that is used by the statute or formally register with the Library
of Congress at to what its copyright date would be under the new copyright
laws. Moreover, it may or may not be copyrighted separate from the
compilation that it appears in. Many photographs that appear in magazines
and books are covered by the book's or magazine's copyright, which may be
transferred for the particular photograph back to the originator of the
photograph or artwork. Most photographs that appear in printed media with
a separate copyright notice of their own are stock photos whose use is being
licensed for that particular use for a given period of time.
>.
If she's dead, neither she nor her heirs can sue
Not
necessarily true. The estate can sue for invasion of privacy and possible win
even if the subject is dead; several have in fact sued and won invasion of
privacy legal actions. They can also bring legal action for defamation of
character and slander depending on the way the image is used and the sorts of
attributions made implicitly or explicitly about the character of the model in
or by the user.
In a
message dated 3/20/2001 9:19:32 PM Pacific Standard Time,
artistic@ampsc.com writes:
There are several legal issues in terms of dating images for
copyright.
On the one hand, you receive your copyright the moment
you press the
shutter button, even prior to processing... which protects
you from the
rolls being stolen in the mail to the processor, and the
thief claiming
ownership, or the lab doing something similar.
On
the other hand, you are supposed to issue a copyright dating on the
first publication of the image. That could be in a magazine, when
you
sell or display a print of the image, or the first time it goes onto
a
digital media that is distributed in some manner, including a web
site.
Also, should the image later on be manipulated in some manner
to be
considered a unique work from the original, the derivative can
also be
copyrighted as a new image with a new date. The line
becomes somewhat
blurry here, since it depends somewhat on the amount of
manipulation or
change one is speaking of. For instance, a scratch
repair or a color
correction would not be considered a new image, in
spite of what
Microsoft attempted to do with their Corbis releases.
Art
Berry Ives wrote:
>>
> If Jay
Maisel has not shot film, except for one roll, during the past
year,
> how is it that all of the images are copyright 2001, yet most are
from
film?
>
> I guess the copyright does not correspond
to the date the image was shot?
>
> -Berry
This is OT, but I can't help adding my two cents
worth since there's a lot of
misunderstanding about copyright law.
I'd recommend that anyone interested
in this somewhat fascinating
topic buy a good book on the subject and study
it in depth. Another
good source of information is www.loc.gov/copyright
which is the Library
of Congress where U.S. copyright law is administered.
Each country
is a bit different, depending on which international conventions
they've
signed, but here's some info (mostly bits and pieces) on U.S.
copyright
law as it applies to photography:
A copyright exits at the moment the
image is "fixed in media," not when the
"shutter is tripped." Some
cameras don't even have shutters (x-ray machines,
some digital cameras,
etc.). The copyright owner is the person(s)
responsible for
'creating' the art, and that's not necessarily the person who
tripped the
shutter. The copyright expires after a certain number of years
(I
don't remember the specifics) and the clock starts running the moment the
art work is "fixed in media," not when it's published. Therefore, a
copyrighted photograph should indicate the year it was created. A
photograph
created in 1981 and published in a book this year would be
"Copyright 1981."
The book itself (meaning it's author's artistic
and creative content, text,
etc.) would be "Copyright 2001." A
copyright notice should appear with all
artwork so that a thief cannot
later claim in court that he didn't know it
was copyrighted. Just as
important, all photographs subject to theft (i.e.,
anything on the
Internet) should be registered with the copyright office at
the Library of
Congress. The fee is US$30 and you can register as many
photographs
as you want provided that they were all created in the same
calendar year
and none have ever been published. Registration allows you to
collect attorney fees should you defeat the thief in court. If
someone
steals your work, you can sue for infringement of copyright.
Your model can
sue for invasion of privacy. Provide she's
alive. If she's dead, neither
she nor her heirs can sue.
(Which means you, the photographer, can use your
dead model's image
for advertising and commercial purposes without the need
for a model
release.) But if she's a famous person, such as a Hollywood
starlet,
then she may have acquired a "right to publicity." That means her
heirs can sue to protect her right to publicity even after she's dead.
Fascinating, isn't it. By the way, "(C)" is not one of the
three valid ways
to give notice of copyright. Use the copyright
symbol instead (a "c" with a
circle around it) or spell out the word,
"copyright." Does anyone know how
to make the copyright symbol in
Photoshop? I've tried, failed, and don't
even know if it's possible.
One last thing on copyright: The Fair Use
Doctrine allows
copyrighted work to be copied if it is used for education,
scientific
work, and some other applications. High school teachers really
take
advantage of that loophole.
Sorry this message is so long, but it's
easier to delete it than 10 short
ones.
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