How to Copyright One or More Photographs

By Gene Quinn
October 20, 2012

Recently I enrolled in a basic photography class and I am loving it! Of course, I didn’t have anywhere to go but up.  Still, my photographs are improving and I am looking for a new camera. So it is with this in mind that I thought I would take a moment to write about how to copyright photographs.

 

Copyright Basics

Before diving into photographs specifically, let’s talk about copyrights a bit more generically first.

A copyright is a form of intellectual property protection that is recognized by the United States federal government. A copyright exists immediately upon creation and is given initially to the author or authors of “original works of authorship.”  The copyright exists upon creation and does not depend upon either publication or registration, although there are significant advantages to federal registration of a copyright.  One, for example, is the right to seek redress for copyright infringement only exists for those with a federal registration.  Notwithstanding, no registration is required in order for a copyright to exist or to be claimed to exist. Likewise, no registration is required for an author to begin using the familiar copyright symbol — ©, but given the cost and benefit of obtaining a copyright you should absolutely obtain a registered copyright. If you file your own copyright application and do it online the cost as of the writing of this article is just $35.

Despite the fact that originality is indeed the so-called “sine qua non” of a copyright, all works that are original are not necessarily entitled to copyright protection. Copyright protection can exist only in original works of authorship if the work is also fixed in a tangible medium of expression from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship for which copyright protection are available include the following categories or works : (1) literary works ; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works ; (6) motion pictures and other audiovisual works ; (7) sound recordings; and (8) architectural works.

 

Works of Visual Art

So where do photographs fall?  A photograph is considered a work of visual art, which is encompassed by category #5 — “pictorial, graphic and sculptural works.”  Pictorial, graphic, and sculptural works include both two-dimensional and three-dimensional works of fine, graphic, and applied art. The Copyright Office, which is a branch of the Library of Congress, says that pictorial, graphic and sculptural works include the follow works:

  • Advertisements, commercial prints, labels
  • Artificial flowers and plants
  • Artwork applied to clothing or to other useful articles
  • Bumper stickers, decals, stickers
  • Cartographic works, such as maps, globes, relief models
  • Cartoons, comic strips
  • Collages
  • Dolls, toys
  • Drawings, paintings, murals
  • Enamel works
  • Fabric, floor, and wall-covering designs
  • Games, puzzles
  • Greeting cards, postcards, stationery
  • Holograms, computer and laser artwork
  • Jewelry designs
  • Models
  • Mosaics
  • Needlework and craft kits
  • Original prints, such as engravings, etchings, serigraphs, silk-screen prints, woodblock prints
  • Patterns for sewing, knitting, crochet, needlework
  • Photographs, photomontages
  • Posters
  • Record jacket artwork or photography
  • Relief and intaglio prints
  • Reproductions, such as lithographs, collotypes
  • Sculpture, such as carvings, ceramics, figurines, maquettes, molds, relief sculptures
  • Stained glass designs
  • Stencils, cut-outs
  • Technical and mechanical drawings, architectural drawings or plans, blueprints, diagrams
  • Weaving designs, lace designs, tapestries

 

When is a Work Published?

Before starting to discuss the specifics relative to copyrighting photographs we need to first address the issue of publication.  Before moving forward with a copyright application it will be necessary to determine whether the work, in this case a photograph, has been published or not. You can get a copyright ultimately in either published or unpublished works, but the form you use may be different and the deposit requirements may vary depending upon whether the work is considered published or unpublished.

Copyright law defines “publication” as the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes publication, but a public display in and of itself does not in itself constitute publication.

Somewhat specialized rules apply a work of art that exists in only one copy.  This is commonly an issue with a painting or a statue, but can be an issue for other types of work.   is not regarded as published when that single existing copy is sold or offered for sale, such as through an art dealer, gallery, or auction house. In determining whether publication has occurred focus on whether the work has been reproduced in multiple copies. The work will be considered published when the reproductions are publicly distributed or offered to a group for further distribution or public display.

 

Single Photographs and Photograph Collections

With one application and filing fee, you can apply to register a single published photograph or an entire unit or package of published photographs—for example, photos in a calendar, a set of baseball cards, or illustrations in a book. You can apply to register these types of photographs using Electronic Copyright Office (eCO) or paper Form VA. See also Copyright Basics and Registering a Copyright with the U.S. Copyright Office for more details.  Do note, however, that published and unpublished photographs cannot be registered on the same application.

Although published and unpublished photographs cannot be registered with the same application, you can apply to register a single unpublished photograph or an unpublished collection of photographs with one application and filing fee using eCO or paper Form VA. For collections of unpublished photographs:

  • the photographs must be neatly assembled;
  • a collection title must be provided;
  • the same party must be the copyright claimant for all the photos; and
  • one author must have either created or contributed to all the photos.

Regardless of publication status, applicants should assign a title to each photograph deposited and specify the title on both the application form and the deposit itself. Do not use “untitled” as a title. If you file using eCO, use the contents title field to list the individual titles.

 

Groups of published photographs

A group of published photographs can be registered on a single form with a single fee if: (1) all the photographs are by the same photographer (if an employer for hire is named as author, only one photographer’s work can be included); (2) all the photographs are published in the same calendar year; and (3) all the photographs have the same copyright claimant.

You can use Form GR/PPh/CON, which includes Form VA (visual arts application), to register groups of published photographs. It is available on the Copyright Office’s website at www.copyright.gov. If you use Form GR/PPh/CON, you can apply to register up to 750 photographs on a single application. If you would like to register more than 750 photographs, you can do so with a single filing fee using Form VA if you identify the date of publication for each photograph on the images deposited with the application.

For information about electronic registration of groups of published photographs, see SL-39.

 

Published contributions to periodicals

Photographs published in periodicals (newspapers or magazines) in any 12-month period can be combined on Form GR/CP. Of course, there are special rules.  For example, the same individual author must have created all the photos; no employer for hire can be named as author; all the photos must have been published as contributions to periodicals within a 12-month period; and all the photos must have the same copyright claimant.

If you need assistance with preparing and filing a copyright application please let me know — just send me an e-mail.  Attorneys at my firm can assist you.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 3 Comments comments.

  1. Renee C Quinn October 21, 2012 12:30 pm

    Everyone-

    What Gene didn’t tell you is that his wife and son enrolled him in that class for his birthday this year!

    You state in the article, that “A copyright exists immediately upon creation and is given initially to the author or authors of “original works of authorship.” The copyright exists upon creation and does not depend upon either publication or registration.”

    But for those not versed in the industry of copyrights, they may ask “What about photographs we put on Facebook, Twitter or on our websites?” Most works are claimed to have copyright protection, yet no forms have ever been filed. Are those photographs we post online protected as well simply because we created them?

    -Renee

  2. Gene Quinn October 21, 2012 4:42 pm

    Renee-

    The next sentence in the article after the one you quote answers your question.

    You do not have to register the copyright in order for the photograph to be copyrighted. It is copyrighted immediately. But you cannot sue someone for copyright infringement without a federally registered copyright. In some places merely having a copyright application pending is enough, and other district courts will require the copyright to already be issued prior to bringing a copyright infringement action.

    -Gene

  3. pacelegal October 21, 2012 8:02 pm

    Registration indeed important in terms of both proof of ownership if it is contentious, and enforcement proceedings as Gene has noted. The difficult question in my mind is how digital artists protect the copyright in photographs posted online. There are many practical tips and considerations when uploading photos, technological protection measures and watermarking etc. I don’t know how many artists are using reverse image search technology such as TinEye to protect and track photos online. The software manufactured by Idee claims to be enable to discern whether an image is unique to a page or copied from elsewhere, and is building a huge database of You can quickly ascertain whether an image is unique to a page or copied from elsewhere, but of course depends on whether or not the photo or picture is already one of the millions the site has indexed from the web. It claims to be able to detect the origins of a photo or at least give the searcher clues, by allowing a user to search for an image using various formats, such as JPEG, PNG and GIF, fltering searches by various parameters such as ‘best match’, ‘most heavily edited’ or ‘most altered’. It is supposed to be an analogous to digital fingerprinting of text as a tracking technology, but I don’t know how efficacious it is, as even digital fingerprinting has had it’s problems. The idea is that you submit an image, either by uploading it to the site or ubmitting the URL, and the image recognition software creates a unique fingerprint based on it’s features and then conducts searches to locate other images with the same or a partial fingerprint match.. Obviously there would be limitations with the software, but it is just another tool. Probably the best measure is not to upload images online at all if you are not wanting your copyright to be violated in a visual work, or upload a thumbnail, and even then there are still live issues about the legality of inline linking or framing and deeplinking raising possible claims of trademark infringement, misappropriation, unfair competition, breach of privacy, defamation, fraud and rights of publicity