Given the current state of the editorial world, it might come as a surprise to discover that the constitutional backdrop against which federal copyright law is painted was historically envisioned as a mechanism to promote publishing.  Gallows humor aside, the idea behind extending protection to certain kinds of intellectual property was a matter of incentivizing the authors of those works to continue to create, safe in the knowledge that the market would be one in which they were afforded specific legal rights over their product.  Publishers could license or purchase rights to creative works and authors would be ensured that these rights would afford them both leverage in court and on the market.

The downturn in publishing is, in and of itself, one more compelling reason for photographers to understand the inner workings of their copyright.  As the methods of sale, licensing, and distribution of our images continue to change, photographers have little excuse not to understand the principles behind which their photographs are converted into income.  The market will change, but its legal underpinnings won’t; rather, these concepts will make up the foundation on which new methods for doing business are built.  Over the next few weeks, I will be using this column to better explain copyright including what it is, how you get it, what it affords you, and how the principles of copyright define how our images are bought and sold.

Before I sink my teeth too deep into this task, let me make one disclaimer: the law of copyright is complex.  And by complex, I mean that trying to apply the law to specific facts is the kind of thing that makes attorneys lose their hair, yell at inanimate objects, and generally turn into sharkish assholes (read: advocates).  In short, I’m not your attorney and I don’t intend for these posts to be read as legal advice.  And, if plain English  isn’t sufficient, you can always knock yourself out by following the asterisk to the legalese at the bottom of the page. *

Ok.  Deep Breath.

A Little Background

Trying to wrap your head around the minutia of the law is a lot like trying to see the curvature of the Earth from the chair in which you are probably now sitting.  If your perspective is too close, it’s a hard concept to grasp with your eyes alone.  The earth looks flat from its surface in the same way that the law, no doubt, seems like a bunch of disjointed fragments spinning in their own little orbits.  The trick to understanding these things is to be able to pull back enough to see the bigger picture.  From the moon, for example, the curvature of the Earth is self-evident;  it looks as round as a basketball.

The same concept applies to the law and, in this case, in order to understand copyright, a broader perspective is in order.  So let’s zoom out a bit into the upper reaches of the legal atmosphere and look down on the big picture, starting with the Constitution.

The Constitution is a pretty straight-forward and literal name when it comes to titling a document.  It is exactly what it purports to be, a fundamental list of legal frameworks and component parts that actually constitute our system of government.  It consists of seven articles that set out the three branches of government, define the powers and limitations of state and federal government, set forth a procedure for making amendments, and set the requirements for its ratification.  The most familiar articles probably sound a lot like a basic civics review: Article I establishes the Legislative branch; Article II, the Executive; and Article III –yep, you guessed it –the Judicial branch.

Most important to the origins of U.S. Copyright law is Article I, particularly a single sentence in Section 8, the section that ‘enumerates’ a nonspecific list of authority granted to Congress.  In plain English, the Framers essentially made a list of things Congress is permitted to do –things like the power to declare war, to create a postal service, and to coin money.  Among this long list is the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  That wordy sentence actually establishes a backbone for two things: copyright and patents.  Since we’re obviously only concerned with copyright, we’ll skip over patent.

The idea behind this clause, commonly known as the ‘Copyright Clause,’ was to secure authors of original works (yes, your photographs are original works) a monopoly over the copying and reproduction of these works for a limited time.  The Copyright Clause was then codified into federal law in a series of pieces of legislation, revisions, and updates (the high points are available in a timeline on the U.S. Copyright Office’s website, http://www.copyright.gov/circs/circ1a.html, about half way down the page).  The bottom line behind all this hair splitting is that the origin of U.S. Copyright law has deep roots in the text of the constitution.  The specific workings of copyright is largely the domain of the resulting federal law.

Ok, So Copyright is a Monopoly?

Well, something like that.  Copyright affords its owner a list of rights which they have over their creation for a limited period of time.  These rights are as follows:

1. The right to exclude others from copying your work

2. The right to copyright interest in ‘derivative works’ (for example, a movie script may be a derivative work of a novel.  Or, perhaps, Shepard Fairey’s use of the AP Obama photograph as the basis for his print –described here)

3. The right to distribute your work

4. The right to publicly display your work

This bundle of rights that you are afforded as the copyright holder is precisely what makes our business so much different from other companies that sell commodities.  A photograph is not like a tube of toothpaste or a gallon of milk.  In either of those cases, the buyer actually owns the product and can do with it what they please.  In most cases, photographers leverage their copyright to avoid selling their entire interest in a picture.  Instead they license the photograph for a specific timeframe and specific use, all the while keeping their copyright.  It’s what allows a photographer to resell images and is the cornerstone to how our transactions are conducted.

The next installment in this series will cover licensing and how these license agreements are integral to keeping food on your table.  Stay tuned and, of course, questions and comments are always welcome.

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Matt Slaby is a Colorado-based attorney (and photographer).  Matt attended the University of Denver College of Law on a full public interest scholarship.  His experiences in law school include a PILG clerkship for ongoing civil work with El Centro Humanitario’s legal clinic as well as handling wage claims and contract issues for DU’s Civil Litigation Clinic.  He is a founding member of Luceo and, in addition to his photography, brings his legal background to the organization.  Questions, comments, and ideas for future posts are welcome.  Please add them to the comments section or reach me here: mattslaby@luceoimages.com

*DISCLAIMER: Luceo Images LLC and Matt Slaby assume no liability for the information provided above. This information may not be correct when applied to your specific situation. Moreover, the information provided is not intended to create an attorney/client relationship and shall not be construed as legal advice.