Myths and Folklore, Part 2
“I can copy and use someone else’s photograph as
long as I change at least 10 percent (or pick your percentage) of it.” This is just plain untrue; there is simply no magic
percentage of alteration that a person can make that would
automatically legalize copying and use. For example, consider
derivative works: Let’s say someone reads a short story and decides to write a screenplay based on that story and even changes the locations and all of the characters’ names. Those are
pretty major changes in the original work. In spite of all that,
the screenplay is likely to be an infringement. The nature and
extent of alteration may be relevant factors for consideration
in evaluating a fair use defense, especially if there is a claim
that the new use is “transformative.” However, the changes are
simply part of the much larger and more complicated fair use
analysis, referred to in Myth #1 last month.
party owned the copyrights, and it started with
the general presumption that the creator, not the
client, owned the copyrights. That result can be
changed by agreement of the parties, but in the
absence of such agreements, the creator is the
copyright owner. The fact that a client paid for a
work does not change that result.
I run into this misconception most often on the
part of clients, but every once in a while, I talk to
photographers who know that they own the copyrights to their photos, but somehow they believe
that when they pay to have software written, they magically also own the copyrights to that software, even though
there is no agreement to that effect between the photographer
and the programmer.
Victor S. Perlman, Esq.
Last month, I wrote about some popu- lar myths, misconceptions and fal- lacies regarding copyright law and registration procedures that I tend to hear with some frequency. Because I
still run into even experienced photographers who
have fallen into the trap of believing some of these,
I thought it would be a good idea to continue with
a few more.
“I am the legal owner of a print or digital file, so I can
use it any way I want.” Again, this misconception, which is
a variation on Myth #7, is wrong. In fact, the Copyright Act
of 1976 specifically states that ownership of a copy of a work
has nothing to do with ownership of a copyright in that work.
Subject to the exceptions mentioned above in Myth #7, the
client or buyer only gets usage rights if the copyright owner
“Charities and/or other non-profit organizations can use
copyrighted works without having to pay royalties because
the uses are not for profit or commercial use.” Dead wrong.
Charities and nonprofits do not get a free ride simply by virtue
of their non-profit nature—there is nothing like that in the
Copyright Act. Further, uses by nonprofits can often be commercial and/or revenue-producing. Charities are not sacred
cows, even though I have talked with a number of people who
work at such institutions who seem to believe that they are.
“I paid for it to be created, so I own it and can do whatever I want with it.” With a few exceptions, this is about
as wrong as you can get. The exceptions are: works made
for hire, works that have had their copyrights transferred
outright, and works created by commission (e.g. on assignment) before January 1, 1978, (e.g. works controlled by the
Copyright Act of 1909). When the current Copyright Act
came into effect on January 1, 1978, it reversed the old
presumption under the ’09 Act that the commissioning
“If there is no copyright notice (e.g. © 2012 Victor S.
Perlman) attached to the photograph, it is in the public
domain, and I can use it however I want without paying
any royalties.” Like the concept in Myth #7, this may have
been correct at one time, but it has been dead wrong for
many years. It used to be that just about every published copy
of a work had to have a proper copyright notice attached to
it, or else the copyright was lost. Fortunately, however, that
requirement had to be done away with when the U.S. joined
the Berne Convention in 1989. Attaching copyright notices
remains a good business practice, and the absence of a notice
may allow an infringer to have damages reduced by claiming
“innocent infringer” status, but the absence of a notice does
not result in the loss of copyright.
I’m having fun with these, and hope you are, too, as well as
perhaps learning something that you didn’t know. If so, I will
deal with more in a future column.
Victor Perlman is general counsel to the American Society of Media Photographers, Inc. (ASMP). He is co-author (with Richard Weisgrau) of the
book Licensing Photography, published by Allworth Press.