Know Your Rights: A Guide for Photographers on Understanding Copyright and Intellectual Property Rights In Your Work

As a photographer, your work is your art, your business, and your livelihood. Whether you are a freelancer, a hobbyist selling your photos online, or a professional contracted for commercial projects, it is crucial to understand the legal protections afforded to you under copyright law. Having represented many photographs over the years in my law practice, in order to answer the most frequently asked questions, what follows is a basic outline of the key rights you should be aware of in order to protect your creative output.

1. You Own the Copyright the Moment You Take the Photograph

Under the U.S. Copyright Act (Title 17, U.S. Code), copyright protection exists from the moment the photograph is created in a fixed, tangible form - which means as soon as you take the photo and save it (digitally or otherwise), you are the copyright owner.

This gives you exclusive rights to:

• Reproduce the photograph
• Distribute copies
• Display the image publicly
• Create derivative works
• License the image to others

You do not have to register the photo with the U.S. Copyright Office to own the copyright. However, registration does provide additional rights and remedies, and is required if you want to commence legal action for infringement and collect statutory damages and attorney’s fees.

2. Work for Hire

Under certain circumstances, particularly if  you are employed by a company and take photos as part of your job duties, or you are contracted for a particular project, your employer - not you - likely owns the copyrights as a matter of “work for hire” under US copyright law.

For freelancers, a work for hire agreement must be in writing and fit into a narrow category of accepted works (e.g., a contribution to a collective work or part of a motion picture). If it does not meet these criteria then you retain copyright, even if someone else paid for the shoot (unless you assign it in writing).

Best Practice: Always use a written contract clearly stating whether the work is a work for hire or a licensed work where you retain the copyright.

3. Licensing: Control How Your Work Is Used

Licensing allows others to use your photos under your terms. Licenses can be:

• Exclusive or non-exclusive
• Limited by time, geography, or medium
• Royalty-free or rights-managed

Be specific in your contracts. For instance, if you license a photo for use in a print brochure, state whether digital use is also permitted. Ambiguity often leads to disputes.

4. Model Releases: When You Need Them

A copyright gives you the right to your image, but using identifiable people in commercial contexts may violate their right of publicity or privacy.

• Commercial use (advertising, product packaging): Requires a signed model release.
• Editorial use (news, commentary, art): Generally does not require a release.
• Stock photography: Most reputable agencies require model releases for any identifiable person in a commercially licensable image.

Best practice: Get signed model and property releases when possible - it protects you and increases your options for licensing.

5. Infringement: What If Someone Uses Your Work Without Permission?

If someone uses your photo without a license:

• Document the use (screenshots, URLs, dates).
• Determine if it’s a fair use (educational, commentary, etc.—consult a lawyer).
• Send a cease and desist letter or DMCA takedown notice.
• File a copyright infringement claim if needed (only possible if the work is registered).

If you filed a copyright registration on your work prior to the infringement then you are entitled to damages in an amount up to $150,000 per infringement plus legal fees. Without a copyright registration, you’re limited to actual damages and profits which you must prove at trial.

6. Protecting Your Work Online

• Use watermarks strategically.
• Embed metadata (EXIF/IPTC) with your name and contact info.
• Consider reverse image search tools (like Google Images) to monitor unauthorized use.
• Register your most valuable work with the Copyright Office - it’s affordable and powerful.

Final Thoughts

Photography is both an art and a business. By understanding your legal rights, you can control how your images are used, protect your creative investments, and take informed action against infringement. In most cases, it is best to try to memorialize get your arrangement in writing. Remember the importance of contracts, copyright registration, and proactive enforcement. When in doubt, consult a lawyer experienced in the area for legal advice.

 

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 35 years’ experience in music, film, television and emerging technology, and he handles many current digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School.

Website: http://www.wallacecollins.com

 

BEWARE: ARTIFICIAL INTELLIGENCE POSES A THREAT TO ARTISTIC CREATIVITY AND A POTENTIAL COPYRIGHT INFRINGEMENT NIGHTMARE!

The headlines these days are full of stories about artificial intelligence (“AI”). It seems AI has gone from science fiction to reality in a very short period of time. From Open AI’s ChatGPT app to Google’s MusicLM music creation tool, the future is now. A few decades back the struggle over digital rights and copyrights was a sideshow, of concern only to a relatively small slice of the population. Now, however, everyone is online, which means that even if you don’t consider yourself a creator as such, material you write, post or share could become part of an AI engine and used in ways you never imagined. To wit, several of my clients have recently raised concerns about the threat of AI, and the threat AI may pose to authors, artists (both fine and graphic artists) as well as songwriters and musicians… so let me try to break it down.

The tech behind AI is a complicated, but at its most basic AI engines ingest massive data sets, which they then use to train software that can make recommendations or even generate code, art, or text. Sometimes the engines are scouring the web for these data sets so they can learn what is on a webpage and catalog it for search queries; other times, AI engines have access to huge proprietary data sets built in part by the text, photos, and videos users have posted on their respective platforms. Unlike the music piracy lawsuits of decades ago, the AI engines are not making copies of the data they use and distributing them under the same name. The legal issues, for now, tend to be about how the data got into the engines in the first place and who has the right to use that data.

AI proponents argue that AI engines can learn from existing data sets without permission because there is no law against learning, and that turning one set of data into something entirely different is protected by the law, as affirmed by a lengthy court fight that Google won against authors and publishers who sued the company over its book index, which cataloged and excerpted a huge swath of books. Those against AI argue that if AI is going to use original material created by others then the AI engines should get a license from the original author or creator, or from whoever owns the copyright. Otherwise, the AI engines are violating the rights of the authors and creators of the underlying materials and, even if the result is not an exact copy of the underlying work (think “sampling” in music), the resulting AI product would not exist “but for” the underlying work and the use of the AI work competes with the artists or creators’ ability to make a living.

As of now, the US Copyright Office has stated that it will not accept a copyright registration on any work of authorship created using AI. However, there is still the issue of whether the resulting AI creation infringes the copyrights of other authors when it incorporates the work of the original authors into a new AI work or some sort (regardless of how remote or miniscule the resulting use in the new AI-generated work). Using the MusicLM system as an example, the Google researchers noted that MusicLM did have a tendency to incorporate copyrighted material from training data into the generated songs. During an experiment, they found that about 1% of the music the MusicLM system generated was directly replicated from the songs on which it trained (a threshold apparently high enough to discourage them from releasing MusicLM to the public in its current state).

Assuming MusicLM or an AI system like it is one day made available, it seems inevitable that it will give rise to major legal issues, even if the systems are marketed as tools to assist artists rather than replace them. AI music generators violate music copyright by creating a mosaic of coherent audio from prior works they ingest in training, thereby infringing the US Copyright Act’s reproduction right. Similar concerns have been raised around the training data used in image, code and text-generating AI systems, which is often scoured from the web without creators’ knowledge. New works generated by an AI system would arguably be considered derivative works, in which case only the original elements of the AI-generated work would be protected by copyright (although it is unclear what might be considered “original” in such a context).

It might not be long before there is more clarity on the matter. Several lawsuits are making their way through the courts which will likely have a bearing on music-generating AI, including one pertaining to the rights of artists whose work is used to train artificial intelligence systems without their knowledge or consent.

Current AI platforms are crude and imperfect, but by design AI improves and gets “smarter” the more it is used. AI may still be in the early horse & buggy stage - but AI could quickly advance to the Tesla level. Authors, creators and artists beware!

 

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. www.wallacecollins.com 

 

 

IS A TIKTOK DANCE ELIGIBLE FOR COPYRIGHT PROTECTION?

When I was recently asked whether someone could procure copyright protection for a TikTok dance, it got me thinking and so I decided to write this article on what I found based on my research.

Under US Copyright Law, a dance created by a choreographer or dancer is considered a creative work that can be granted copyright protection if: (i) it is an original work; (ii) it is a coherent whole (i.e., not just individual movements); and (iii) if it is fixed in a tangible medium (e.g., written illustration of the dance steps and movements or a video recording of the dance).

When someone creates a choreographed dance on a platform such as TikTok, that creation just might be eligible for copyright protection. However, simple dance routines - like an end zone celebratory dance or a series of yoga positions - have been deemed not protectable under copyright law. Basic dance moves or simple routines cannot be copyrighted separately, but a creator can copyright a dance as long as it is an original work which consists of the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. All of the dance moves which constitute the choreographic work must be described with enough detail so that the work can be consistently performed. Most protectable choreographic works are usually those which are intended to be executed by skilled performers in front of an audience, such as a ballet or a modern dance routine.

In most cases that TikTok dance probably falls into the non-protectable category, unless  there is a sufficient combination of body movement, spatial movements and coordination with musical accompaniment such that the social media dance would be protectable. Protection is more likely if the performance is by a skilled dancer, is for the entertainment of others (i.e., not for others to mimic for their own enjoyment) and involves a discernable storyline or theme.

Choreographic works are afforded the same exclusive rights as any other copyrighted work so, once protected, it would be copyright infringement and the basis for legal action if someone without legal authorization publicly performs the choreograph work or adapts, distributes or reproduces the work. When a dance is deemed copyrightable then copyright accrues from the time it is fixed in a tangible medium or expression (written or recorded) and lasts for the life of the author plus 70 years. Registration is not required for protection, but registering early grants additional protections and is required before the author can commence legal action in court. If a video was posted online that you believe infringes on your copyright, your first step should be to request that the offending video be removed under the Digital Millennium Copyright Act.  However, the digital service provider can restore the material if the alleged infringer sends a counter-notice explaining why the material is non-infringing – which then leaves the copyright claimant for the choreographic work with no alternative but to file a lawsuit against the alleged infringer as the  last  resort to protect the copyright.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a teenage recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

This INTERNATIONAL BUSINESS TIMES article quotes me several times starting at paragraph 4

http://www.ibtimes.com/aurous-legal-ad-free-music-streaming-service-was-sued-riaa-it-doesnt-look-promising-2142693

Rick Ross Loses Legal Claim Over LMFAO’s ‘Shufflin’ Shirts

An interesting Federal Court decision on summary judgment was handed down this week in Florida. Judge Kathleen Williams, a Federal Judge in Florida, shot down a big part of the lawsuit from hip-hop superstar Rick Ross over LMFAO’s chart-topping 2010 song “Party Rock Anthem,” which contains the phrase “Everyday I’m shufflin’ “ in the chorus.

Ross had alleged that the Los Angeles-based electro-pop duo’s hit is a copyright infringement of his own chart-topper “Hustlin" which contains the lyric “Everyday I’m hustlin’.” The song was released on Ross’ 2006 debut album, Port of Miami. U.S. District Judge Kathleen Williams was asked to address on summary judgment whether Ross’ three-word phrase is original enough to be copyrightable.

In making the determination, the Judge stated that “The question presented, however, is not whether the Iyrics of Hustlin’, as arranged in their entirety, are subject to copyright protection... the question is whether the use of a three word phrase appearing in the musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constitutes an infringement of the musical composition Hustlin’. The answer, quite simply, is that it does not.”
The Judge's decision points out other cases where short phrases like “you got the right one," "uh-huh,” “holla back,” “we get it poppin’,” and “caught up” failed to meet the originality threshold when divorced from the music. She also writes there’s evidence that Ross wasn not the first to come up with the lyric “Everyday I’m hustlin’.”

The Judge added that even if Ross’ phrase was copyrightable for this merchandise context, he would fail the intrinsic test, the one where ordinary observers judge similarity. “The average lay observer
would not confuse t-shirts bearing the phrase ‘everyday I’m shufflin’’ with the musical composition Hustlin’, nor without reference to Party Rock Anthem and Hustlin’, would an average lay observer
recognize the merchandise as having been appropriated from Hustlin’.” The Federal lawsuit will now continue but will only be about the songs.

Wallace Collins is an entertainment and intellectual property lawyer. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com 

THE IMPORTANCE OF CREATING A PAPER TRAIL WHEN SUBMITTING YOUR WORK

When pitching a project, whether a TV program or game show concept, a video game idea, a proposal for a book or magazine article or circulating a demo of your song, it is a good idea to file a copyright registration on it before making it public. It is also important to create a paper trail in order to keep track of where and to whom your work is submitted. In the event that you someday decide that someone stole your work or "infringed" your copyright you will need to prove two things in order to win a copyright infringement lawsuit: (1) access to your work and (2) substantial similarity between your work and the allegedly infringing work.

"Substantial similarity" is a legal term of art which compares one work to another to decide if they are too similar or so similar that the connection is strikingly similar. However, most cases are thrown out before the issue of substantial similarity is proven because they fail to show access.  The threshold of "access" basically means that the person who you think infringed your copyright actually had access to your work before they created or developed their work. In other words, unless your work was already widely accessible (e.g., a Top 10 hit record or a website broadcast show) you are going to have to show that the alleged infringer somehow had access to your work.

Although you can prepare a confidentiality or non-disclosure agreement, it is unlikely that most people you contact will be willing to sign it in advance. In fact, some of the bigger media corporations have a policy whereby they insist that before they will accept or review any submission you sign a document waiving any claims you might later have against them (although their position is they might already be working on a similar idea and do not want to be sued such agreements must still be approached with great caution as they tend to be ambiguous and overly broad in scope).

I am not suggesting that you plan a lawsuit, just that you be prepared in case someone infringes your work. You can create a paper trail by following these procedures:

- keep a journal or daily diary of who you give or send your work to, and start a correspondence file of your own keeping copies of all your cover letters (and even the rejection letters you might receive as they also show access).

- mark all submitted materials with the appropriate copyright notices.

- if you are lucky enough to get an appointment to present your work in person, write a self-serving letter to confirm the meeting and retain a copy of the letter for your file.

- if there is a visitor's log available, upon arrival sign in and note the date and time of arrival.

- take note who is in attendance at the meeting and their positions with the company.

Again, I am not suggesting that you start any frivolous lawsuits but it can be an unscrupulous business and you should be prepared for every eventuality. It is good practice to get in the habit of keeping a paper trail in the ordinary course of doing your business. It just might come in handy if something goes wrong somewhere down the line.

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com