© COPYRIGHT
Copyright is established upon the creation of an original work. With
photography, this takes place when the image is "fixed in any tangible
medium of expression". This means that once the shutter has closed and
any image has been recorded, or captured, it is protected by Federal
Copyright Law.
Copyright is comprised of five basic rights; The Right To:
1) Reproduce the copyrighted work
2) Make derivative works based on the copyrighted work
3) Distribute copies of the copyrighted work publicly
4) Perform the copyrighted work publicly
5) Display the copyrighted work publicly Any of these rights
may be transferred and owned separately. However, the copyright itself
is not divisible - there is at all times but a single copyright. All
negotiating regarding a copyrighted image is only an interplay between
transferring rights and reserving rights. Most advertising and commercial
photography is licensed for a specified use and/or period of time.
There are three ways to transfer rights:
1) Transfer of Copyright: This covers all five basic rights
the artist owns as the creator of the work, including the copyright
itself. The artist would have no further copyrights.
2) Assignment: This covers the complete transfer of one or more
of the five basic rights. By assigning the right to reproduce, for instance,
the copyright holder transfers the unlimited right to reproduce an image
without restriction. The assignee would then be able to reproduce the
image in any media, anywhere in the world, for an unlimited period of
time. The copyright holder would have no further rights to reproduce
the work, but would reserve the four remaining basic rights. Copyright
transfer occurs when the entire copyright or all five basic rights have
been assigned to the same party.
3) License: Specific rights may be transferred by licensing.
This covers any aspect of any of the five basic rights, and may be restricted
by time, media, geography or other means. For instance, an artist may
license reproduction rights for one year in trade advertisements in
Southern California, and include display rights for a trade show booth
at the June Auto Show at the L.A. Convention Center. The more specific
the rights licensed the more the artist reserves for him or herself.
Specific details are important in the licensing agreement (invoice)
so that the client understands their exact rights and that they must
negotiate any additional rights not covered. Inclusion of details such
as size of the print run for a brochure, names of publications, time
frame, etc. help establish and limit the scope of the rights licensed
and supports pricing. A broad license for reproduction rights for national
advertising is more valuable than a specific reproduction right for
the March 13th edition of Newsweek. In addition, licenses may be either
exclusive or non-exclusive. An exclusive license means that no one else
may have the same rights to an image. The exclusivity can apply to the
image itself, a period of time, a media, a geographic area etc. For
example, licensing exclusive reproduction rights for one year in national
advertising in North America restricts the copyright holder from licensing
rights to the image that would conflict with the exclusive restriction.
The artist would reserve the right to license the image for other uses.
If a license is non-exclusive, the artist may license more than one
client to use the image in the same way.
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