Understanding Copyright & Intellectual Property

As it pertains to the ownership of intellectual property, copyright is one of the most difficult concepts for most people to understand. Technology has exacerbated these misconceptions as almost everything we want are moments, sometimes seconds away. Immediate gratification and tech has led to significant misinterpretations about what constitutes ownership of intellectual property and when it comes to copyright, the rules are a bit more complicated. 

You can read the details of copyright law for yourself at www.copyright.gov. As it relates to this subject, copyright nearly 100% of the time belongs to the creator of that property. As it pertains to photographic works and design, it is the creator (filmmaker, photographer, designer) that holds exclusive ownership over that material. That means you cannot copy it, scan it, re-distribute it, license it, modify it, edit it, even so much as change the color of it in any media type without specific and uncontested proof of permission from the copyright holder (the creator).

Let me use an example to place intellectual property into perspective. Let us look at software. You’ve gone to the store and purchased your next scheduled upgrade of software; let’s assume it’s Windows 8. You’ve paid for it. You believe you own Windows 8. Actually you do not own anything. You have purchased a license agreement for personal use for your home computer. Microsoft owns Windows 8 and you are purchasing a CD/disc or download which grants you a limited license to install a copy of their software on your system. You cannot change it, edit it, copy it, redistribute it and do anything that changes the fundamental properties of that software or the manner it is distributed. It is not yours. You’re leasing it in a sense. If by chance you manage to copy it you have just violated copyright law and subject to the maximum penalty with such an offense simply because you made a copy of it onto another disc. 

Other intellectual property is not considerably dissimilar. Consider photographs. The holidays have arrived and you have found a professional photographer to take images of your entire family to make greeting cards. You’ve found the photographer, paid the booking fee if applicable and paid the fee he or she charges for such a session. You ordered a few prints for your wall and photo album and possibly purchased downloads to go on your social networking site like Facebook. Then another relative says they would like a copy of a specific image. You do not really want to bother the photographer and more so you do not want to spend the money by ordering one more print or download. So you place the image you have on your alleged high end scanner/printer at home and copy and print your own. You know what? You just violated several rules of copyright law and subject to fines and severe penalties. But you believed that you paid for it once why pay again. What you have failed to realize that payment alone does not transfer copyright ownership and more specifically, it does not grant you the right to re-distribute, copy, or modify intellectual property that belongs to someone else. 

Just like software, you cannot legally burn discs of operating system software and give it to your family or your friends without severe legal repercussions if and when you’re caught. Most creators give clients the option to purchase exclusive property ownership. However, such situations are rare and often expensive. The photographer has to consider any and all associated advertising potential, future sales, add on sales, promotional potential and creative ownership that property has and ever will have. Your $10,000 wedding images may easily be $25,000 if a photographer chooses to give up all ownership to that property. Unless he or she has written a specific statement that grants you copyright ownership of those images, then you do not and will not ever own them. Even death of photographer does not necessarily transfer ownership. It often goes to heirs, the business entity under which the property was created or their estate.  

Technology has created a few gray areas in copyright law due to online sharing and digitized content. Law like many things, is often up to interpretation by the end user or the person committing the infraction. But as far as the letter of the law, it is very clear when an infraction may or has occurred. If you purchased a print or photograph whether you paid for it or not, then you scanned it and put it on your Facebook profile; officially you broke the law by violating intellectual property rights. However, it will probably slide by if the photographer does not file suit against you. Most would not because they may want the exposure. More than likely they would not because they do not have the financial resources to combat such an infraction. But I have known a few to do so and the violator nearly always lost in court. What is often considered is the lost of revenue for current, future and all associated sales that image would have had if it remained under the intellectual property control of the creator. It can get very expensive for what you may think is a small infraction. As it pertains to law, ignorance does not equate to innocence.

There are very few situations where copyright may not always automatically fall to the creator. Such cases might be in a business environment when a photographer is an employee of a business entity and the entity itself assumes the right of the creator. Yet, even these cases are argumentative short of an agreement between the designer, photographer or filmmaker to the contrary.

It is best to know and protect your rights not only as the creator but also as the client or business. Seal the rights, uses, and privileges with an agreement outlining how, when, where and why intellectual property will and can be used.