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Protecting Your Work: How and Why

By John Harrington

Excerpted from Chapter 14 of his book Best Business Practices for Photographers

The thing about copyright is that it’s your right. Hence “copy” and “right.” You have been given a limited monopoly over your creative endeavors to give you the incentive to create more. After you’re gone, and then after 75 years, your work belongs to your family or estate, and they can continue to benefit from your genius. Later, it becomes wholly owned by the public, and anyone can do whatever they want with your endeavors.

I think this is pretty great. I have been given the incentive to be a photographer. And I own my work. I can recall with great detail the environment surrounding most all of the photos I’ve made. Often I can recall the weather, the challenges of the client, the lighting setup, and who was on that shoot, whether colleagues or assistants. That means the shoot is a piece of me, and I feel protective about these little pieces of me and how someone might use them.

It’s the Principle of the Thing for Me

Don't confuse my incentive to be a photographer with greed or anything of the sort. I’d make images without being paid—although it’s work, it’s definitely not a job. However, when someone wants to exploit my work—pieces of me—for their own gain, I expect to be compensated for their use of my work.

For most editorial magazines, if they have 30 pages of advertising and 30 pages of editorial content, it’s those 30 editorial pages that the subscriber/reader wants to see. They’ve agreed to page through the 30 pages of ads because the value of the editorial content is enough for them to do so. In some cases, such as a fall fashion magazine or an annual automotive magazine with the next years’ line of cars, the ads may be a draw; however, these circumstances are the exception rather than the rule. So, if I have contributed a full-page image from an assignment, I have directly contributed to the value of the publication, and thus I should be compensated. If the magazine sells ad space at a rate of $18,000 for a full page, that means they earn $540,000 per issue from advertising. It’s fair for me to be appropriately compensated for my contribution. In the circumstance of a corporate/commercial shoot, I am directly contributing to the sale of their product or the public perception of their company, and, again, compensation commensurate with their benefit is appropriate.

As a freelancer, the notion that these companies want to own the copyright, feel they deserve the copyright, feel they are entitled to it, or take the attitude that “I paid for it, so I own it” shows ignorance about the intent of the framers of the Constitution and the law today. Let's take a look at an example. If, when driving through New York City, a Californian comes to a stop at a stoplight, and then makes a right on red, that driver will get a ticket. You can’t expect that your explanation to the issuing officer (“But officer, I didn’t know I couldn’t do that!”) will mean you don’t get or don’t deserve the ticket. Further, an infrequent Manhattan driver in Manhattan might make the same claim.

Someone who has never licensed photography is similar to the aforementioned California driver in Manhattan. For the driver, there may be some room to get a warning ticket. For the photographer, he may be afforded an explanation by a copyright owner about how he can and can’t use the work created.

In the case of the infrequent Manhattan driver, he lives in New York City and is obligated to know his city’s driving rules—just as the ad agency or publishing conglomerate must know about the rules of copyright and the consequences for an infringement.

To give you an understanding about just how much the founders of the United States valued the concept of copyright, consider this. The Constitution begins “We the People,” and the first section—the first—stipulates what legislative powers are held by the Congress, as well as who can be a member of Congress and who can be a Senator. In Section 8, the Constitution stipulates that Congress shall:

This limited exclusive right is the basis for US copyright. At the end of the chapter, I'll include suggested books that go into detail on how the US copyright is based upon English law. These books are excellent resources to understand the birth of copyright. This exclusive right delineation comes before a discussion of who can be the president and how. It comes before the rules and obligations of the states. Further, it comes before Constitutional corrections—things they forgot about or were wrong about and needed to fix or add—the Bill of Rights, ending slavery, the right to bear arms, and such, which became the various amendments to the Constitution. I say this because I hear all too often how copyright is not important to some photographers, and that they don’t really care or enforce their copyright.

Just as I get incensed over violations of a citizen’s civil rights or prejudice against race or sex, I get angry on principle when people infringe on my right, given to me at the same time as senators and representatives, and before the president, and before the states, and before the right to bear arms, and before the numerous other amendments. The framers, hundreds of years ago, and throughout time since, have recognized the value of “useful arts” and sought within the first 1,600 words of a document that, without amendments, is approximately 4,500 words in length. When I hear a fellow artist say, “Oh, I really don’t care about copyright,” I find that offensive. I think that if “copyright” were to be substituted for “the right to keep and bear arms” or “the abolition of slavery” or “equal rights for men and women,” almost everyone else would be offended by the artist's statement of disinterest. Yet it was these rights that were parts of the Bill of Rights—that were amendments to the constitution. The basis for copyright was not an amendment; it was in the beginning of the Constitution. So I encourage anyone who "doesn’t care" about copyright, who is willing to sell it for a minute fraction of what it’s worth, or who looks at someone who is enthusiastic about protecting their own copyright with disdain to rethink their own principles and perspective. Yes, I believe in copyright laws, and you should too!

Don’t Steal My Work, Period

With the position I’ve described, I’ve found myself in several situations in which my work has been infringed. Stolen is a better word, but infringed is the technical term. To that end, use the term in dialogues when you’re infringed. To that point, your work will be infringed. If you’re displaying it, sharing it, or otherwise distributing it, I can practically guarantee that you will be infringed upon. If I told you that I could provide the same guarantee that you would have someone break into your house, would you buy an alarm? How about a guarantee that you’d have an auto accident at some point in your life—would you get insurance? I suppose the answer is the same in both cases. Trust me—you will have your work infringed. To that end, protect yourself.

That said, if you’re unhappy about Adobe’s requiring you to activate your software, thank the thieves. In an April 2005 interview with the San Francisco Chronicle, Adobe CEO Bruce Chizen reports that one third of their revenue is lost to software thieves. I encourage you to learn more about piracy in general at sites such as www.bsa.org/usa/antipiracy, because piracy of software has similar arguments and issues as infringement in photography.

The software fotoQuote, with was the precursor to fotoBiz, was almost put out of business because photographers were stealing the software. Photographers steal Photoshop. They steal FTP software—even software that costs less than $40 is being infringed. I cannot see my way clear to demand one cent from someone else who has stolen my work if I were infringing upon others' creative endeavors, whether software, movies, music, or the like. Further, if I can’t afford something so absolutely integral to my business as Photoshop, then there are significant problems with my revenue totals—so much so that I can’t afford an initial $600 and upgrades of $200 or so every 18 months for something I use for extended periods of time almost every day. Further, it is important to note that Adobe, as a normal part of their file handling process, generates a unique document ID for every image it handles for you. This generated ID is unique to you—or more specifically, your registered version of Photoshop—because it integrates the serial number of the program into the ID. And, as any program evolves, you can expect this handling of your files and the legality (or lack thereof) of your installed version of Photoshop (as well as other applications) to be a growing issue as all software companies seek to combat piracy, just as you would like as many tools as possible to protect you from people stealing your photography.

Copyright: What Is It, When Is It in Effect, and Whose Is It?

Copyright is exactly that—the “right to copy.” And, it includes the converse—“the right to preclude a copy.” Copyright is also, as noted above, the right to display (that is, present—or not—in a gallery, on a Web site, and so on); the right to perform and the converse (prevent a performance of), which is not as prevalent an issue for photographs; the right to distribute or opt not to allow distribution; and a variation of the right to copy—that is, make a derivative (or, again, to preclude someone else from doing so). For photographers, producing work now causes your work to be copyrighted the moment the shutter closes and the image is fixed in a Flash card chip (or on film if you’re still so inclined). Were someone to steal that card and publish your work, you are protected—not as well as if you’d registered the work, but you’re protected because you’ve been infringed. All you’d have to do is secure the file, compare the metadata that includes the camera’s serial number in it, and then sue not just for infringement in federal court, but also for theft of physical property in civil court.

Registering your works gives a greater extent of protection, and there are multiple books that go into great detail as to what the differences are between registered and unregistered work, so I will not endeavor to detail that in this book. I will simply state that you should register your work.

Although it might seem obvious, it’s worth repeating: In almost all cases, unless you signed a “work made for hire” document before the work was completed and fell into one (or more) of the nine categories previously enumerated in Chapter 5, as well as all the other conditions, the work is owned by you. If you instead signed a document that stipulated copyright transfer, then your work is not owned by you. If you are an employee of a company as a photographer, then the work you do for them on assignment is theirs, regardless of whether you signed or didn’t sign anything. However, this book is geared more toward the freelance photographer (or the staffer who freelances on the side or wants to leave their employment for the freelance world).

Recommended Reading

Duboff, Leonard D. The Law, In Plain English, for Photographers (Allworth Press; Revised edition, 2002)

Krages, Bert P. Legal Handbook for Photographers: The Rights and Liabilities of Making Images (Amherst Media, 2001)

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (The Penguin Press HC, 2004)

Litman, Jessica. Digital Copyright: Protecting Intellectual Property on the Internet (Prometheus Books, 2000)

Patterson, Lyman Ray. Copyright in Historical Perspective (Vanderbilt University Press, 1968)

Thierer, Adam D. and Wayne Crews. Copy Fights: The Future of Intellectual Property in the Information Age (Cato Institute, 2002)

Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York University Press; Reissue edition,