Copyright and Licensing
Copyright and licensing are 2 concepts that all professional photographers need to understand. This is not just because as a professional you are expected to understand and be able to explain these concepts to your clients, but also because they are foundational concepts that allow you to create an income stream from your work.
Copyright is a legal concept that exists in law to strike a balance between the creators of intellectual property (such as photographic images) and the use that those creations can be put to by the public. The Gutenberg press invented in 1440 paved the way for the need for copyright legislation. This was because with the invention of the press creative works could be copied over and over again with relative ease. Prior to that literary and artistic works had to be copied by hand and the distribution of the works was easily controlled.
With the ability to copy works on a mass scale came the need to acknowledge the author. There was also the need to ensure the author gained some return from the copying of his or her work. This was primarily to ensure that the author could continue to create more works for the good of society. This is where copyright came into existence. Last year was the tricentenary of the United Kingdom's Statute of Anne (1710), which was arguably the World's first copyrighted work.
The first multilateral international copyright treaty was signed in 1886 in the Swiss city of Berne and is known as the Berne Convention for the Protection of Literary and Artistic Works. For the citizens of the nations who signed the Convention, the real benefit was that it not only protected an author's right to earn an income from his or her creation, but it placed into law the automatic acknowledgement of the right of an author to be acknowledged as the author of their own work - a concept that had not been enshrined in law prior to that. There have been a number of other multilateral international copyright treaties since the Bern Convention. Perhaps the most influential is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) that came into force in 1995 and to which all member countries of the World Trade Organization are signatories.
Figure 1 The international copyright symbol. In countries that are signatories to international copyright conventions, marking an image as copyrighted with this symbol is not a requirement for ensuring the image is protected by copyright law. However, marking images with the symbol in the relevant metadata field is advisable since it informs users that the image is copyrighted
What copyright law tries to do is to balance the rights of authors and the rights of the public. For authors it protects the right to be acknowledged as the author of a work and to earn ongoing income from the copying of their creative work. This enables them to continue to create. But it also seeks to protect the right of the public to benefit from that creative work and the use of the work. For this reason, copyright always has a time limit. That time limit is the point at which the law considers the author has had enough time time to benefit from the work and to have been sustained by sales of copies of that work. Thereafter the work is in the 'public domain.' Once a work is in the 'public domain' anyone has the right to copy the work. This period of time differs from country to country in terms of their copyright law and it may also differ from creation type to creation type. Even when a work is in the 'public domain' however, the author still has the right to be acknowledged as the author of the work. This acknowledgement is known as the 'moral right' to authorship and it never expires.
The various international conventions that have been ratified by most nations are a great help to photographers. The most important of these is that a work does not need to be registered in any way to enjoy protection under copyright law. By its mere creation it is protected. Although the law differs from country to country there are generally three preconditions for a work to be protected under copyright:
- Firstly, the work must be original. It cannot be a simple copy of another work
- Secondly, the work must be written down or recorded in some way. It cannot simply be an idea. Ideas are not copyrightable, they must take material form in order to be protected by copyright
- Thirdly, the work must be created by a 'qualified person'. Such a person is a person who is a citizen of a country that is a signatory of either the Berne Convention or of TRIPS. If your country is not a signatory to either, then your work may not be protected in certain countries by national copyright laws. In this regard it is worthwhile knowing if in fact your country is a signatory to either of these treaties. Fortunately Wikipedia provides a helpful List of parties to international copyright agreements.
So copyright law provides a solid basis for you to claim ownership over your creative work and to benefit for a period of time from the use of that creative work.
If you are a citizen of a country that is a signatory to the Berne Convention or TRIPS, in most countries of the World you enjoy the privilege of automatically being acknowledge the author of the work, and you have the right to control the copying and use of that work and therefore, derive an income stream from it, if that is what you want.
This is not as straightforward as it sounds, however. Your own country's local law will determine how this plays out. In South Africa, for instance, if a magazine or client commissions a photographic assignment, by default they are the copyright holders, not the photographer. This is why it is worthwhile knowing your local copyright law in some detail.
Generally, however, copyright enables you as a photographer to earn an income from your work. That income is derived from licensing your work.
When you sell a photograph, whether as a stock image or as a fine art print, you are not selling the copyright to that work. Only you as the copyright holder have the right to copy the work. The buyer of a fine art print has purchased a single print, not the right to make copies of that print. Likewise, when a magazine purchases a stock image from your picture library, they are purchasing rights to use that image in a limited fashion and they do not have any rights to further reproduce that image outside the license that was sold to them, or to sell that image on.
So licensing is an important concept and provides the possibility for a number of viable income streams.