Bouviers and Copyright Protection Ė What do they have in common?

By Michael D. Jordan

Copyright by Michael D. Jordan

1/12/03

 

At first glance, you might wonder, what do Bouviers and being protected under copyright law have in common?They actually have a lot more in common than you think, as I found out recently.

 

Many Bouvier owners (and any dog owner for that matter) take pictures of their dogs...pictures of them playing, working and showing, etc.Pictures that are taken for the scrapbook, for the web site, to send through e-mail, to hang up at work or home and even, on occasion, for use in a magazine, newsletter or calendar.

 

While most people have seen the symbol ď(c) (c with the circule around it)Ē or the word ďcopyrightĒ, not everyone knows or fully understands what it means, both to them and for them. What many people donít realize is that all of those pictures that we, as individuals take, have the same protection under the copyright law as those great looking images you see in the fancy magazines taken by high priced professional photographers.For some time now (since 1909), work created is protected from others copying or using it without the permission of the person who created it.This is called copyright.The copyright starts the moment that the work is created, be it a text document, a sculpture, a song, computer program, photograph or anything else of this nature.When you take a picture of your kids, your family, your house, those scenes while on vacation, or of your Bouvier, those pictures are under your copyright from the moment you snap the shutter. This means that if someone wanted to use your picture in a magazine, in an advertisement, on a greeting card, on a web page, on their computer, etc., with certain exceptions, they legally couldnít without your permission.If they do use it, depending on the circumstances of how they are using it, what steps you took to show it was copyrighted and how soon you find out about it, you have certain legal rights of redress.These rights can be as simple as telling them to stop using it all the way up to court decreed monetary awards for infringement and to criminal action and possible jail time.

 

Iíve been creating work that I have identified as being copyrighted by me for some time.From my photographic work to computer programs that I have created, I have dutifully tacked on the copyright notice to show that it is copyrighted by me.While actually having the notice on the item is no longer a requirement (that changed with the Berne Convention, effective March 1, 1989) for works created after March 1, 1989, it is still recommended so that someone canít use the defense (unless they can show) that they didnít know it wasnít in the public domain or otherwise not copyrighted.Having a legitimate excuse is one thing, but using that they didnít know just to try and get out of the penalties once they are caught, is another.

 

Iíve taken a lot of pictures in the last couple of years, mostly of our own dogs, as Iíve worked to learn and relearn a few things.Taking pictures of Bouviers is not the same as taking pictures of people, where my background, education and training had previously been in.Some of these pictures Iíve put up on my web site as I continue to practice and improve.Iíve also taken thousands of pictures at dog shows, agility and herding events as well as a lot of non-dog related pictures.Iíve had a number of my dog related images published in different club newsletters and Town and Country Magazine purchased the right to use one image for last yearís February issue. Any time Iíve put up images of mine that could be viewed by the public, I have included the notice that all of the images were copyrighted by me and not to be used without my permission.But even with this simple precaution, I recently found out that I didnít know as much about copyright as I thought and I wasnít fully protecting myself.

 

Just before Christmas one of the major magazines included a very nicely done, almost half page ad in which one of my photos of my wifeís male dog appeared.While it was great to be able to say another one of my pictures made it into a well-known magazine, there was a problem in that the picture I had taken of her dog wasnít put into the magazine by me or with my permission.We were both amazed when we saw and recognized both my work and the dog in the picture.The first thing we did was locate the picture on our web site (that was the only place this picture could have been seen) and compared the two.Even though it had been modified a little, there was no doubt in our minds that this was the same picture of her dog.It was with this ad that I had my first known experience with copyright infringement.We are still working on the resolution of this incident, so I wonít get into the specifics, other than say at this time it is still being discussed with a copyright lawyer.But this incident did motivate me to go to the web site of the Library of Congress and the U.S. Copyright Office for information on the law of copyright.It also led me to talking with a copyright attorney (attorneys are trained and hold expertise in different areas of the law) and even sending e-mail to the Copyright Office itself for clarification on a couple of points. What was a pleasant surprise was that I received an answer back in less than 24 hours (this was just before new years too) and even better, the answer helped.In all of my digging and reading, I discovered that I had a few misconceptions about copyright law, how it works, what the process was and how to make sure that I am fully protected and what recourse, if any, I had with an infringement.This incident also led me to writing this article.

 

First off, let me say that I am not a lawyer of any kind.What I am about to write is based on my interpretation of what I have read and might not be how it would get interpreted in a courtroom. Even the information you might receive from a lawyer could be interpreted different once it gets into a courtroom.So keep that in mind as you read this.This is also not meant to be a detailed step-by-step document about copyright. Iím going to be fairly broad in my statements so as not to get bogged down in legalese and use up all of the Editorís space.And though most of this is actually applicable to a lot more than just photographs or digital images, those are what Iím going to be focusing on.I will provide sources and links to the Copyright Office web site as I go and at the end so that those that are interested or have trouble falling asleep can take a look for themselves.

 

As I mentioned above, when you snap that picture and itís created on the film in the camera, in memory (if you are using a digital camera), or on tape (with a video camera), you own the copyright to that image.Copyright laws that protect you, not only in the US, but also in all of the countries that are part of a treaty that recognize copyright and except for certain circumstances, your image canít be used without your permission.Some of those exceptions are covered in the ďFair UseĒ part of the copyright law (circular 21).Also, copyright law falls under Federal rather than local or state.

 

Before this incident with my image came up, some of the misconceptions that I had about copyright law and registering my images were:

 

  1. It was a complicated process
  2. It would be expensive to copyright all my images
  3. I was already protected so why register them
  4. If I needed too, I could register them anytime
  5. It would be expensive to go after an infringer
  6. Why would anyone want to take my images

 

These were some of the thoughts I had whenever I really thought about it. What I found out when I really started looking into it was:

 

  1. Itís not a complicated process at all.One form (VA form for visual arts) that takes about 10 minutes to fill out is all that is needed in most cases.
  2. It doesnít need to be expensive. $30 is currently the cost for each registration application.That registration can be for a single item or multiple items.If I have multiple images to register (I had over 2000 images on my first application I sent in), I can register them as a group by putting them all on a CD (there are other acceptable ways if you donít have a CD burner or digital files) and paying only a single $30 fee for the whole group.
  3. Yes, my work was protected and I could possibly win the same amount in judgments if I took it to court. But (and this is one of those big buts), if the images are registered, I could also collect court costs and lawyer fees on top of any judgments for actual and statutory damages. The lawyers on the other side are aware of this and should be more inclined to settle without going to court if they know this is a valid infringement complaint.
  4. I found that to register your images, it has to be done before an infringement commences to be able to take advantage of the provision to include the costs as in item 3.In addition, even without an infringement, you have to register within 3 months of your images being published (note that being published could happen a long time after the actual creation date) to be able to get the special coverage in item 3.The copyright office has a circular covering what determines ďpublishingĒ.But in short, what it says is ďíPublicationí is the distribution of copies or phonorecords of a work to the public by sale, or other transfer of ownership, or by rental, lease, or lending.ĒIt also states ďA public performance or display of a work does not of itself constitute publication.ĒThis last part is important because it also addresses web pages.Just because I had put some of my images on my web site and they could have been viewed by the public, that did not mean I had published them.I thought it did and when the lawyer I talked with asked if this image had been published, I said yes (and he didnít ask why I thought it had been published).But I found out later that that wasnít necessarily the case.Circular 66, Copyright Registration for Online Works, covers this in more detail.
  5. Yes, it can be expensive to go after someone that has infringed (especially if itís not a clear cut case or they want to fight it), but by having my images registered, I had the added protection of being able to recover those costs incurred if I won.And the other side knows this as well when you show them that your work is registered.
  6. Ok, reality check.Why register images that look like a bunch of snapshots? In some cases, poorly done snapshots?Although I have some very good work on my web site, a lot of them were test and practice shots that I put up for examples of what I was trying to do.Who would want to use them for anything other than maybe an example of what not to do?Wrong again.The image that was used in that great looking ad was one of these pictures.The image that Town and Country contacted me about using was also from this same group.In this case, who ever did the image work had a good artistic eye and knew what they were doing.They were able to make it come out looking really good for this ad.I do things like this in Photoshop all the time when I need to enhance an image or make it look better for printing or for viewing on the web site.I didnít on these because they were just test shots and I didnít feel it was worth the time or effort.But someone thought it was.So you never know what someone might use of yours if they have the chance.

 

Of course we all have to be realistic about it too.Although the same laws protect you from someone using your image for gain and profit as they do from someone using your image as a screen saver on their computer at work or a bit of art on a letter to their grandmother, you probably wouldnít treat them the same.A lot of people do not realize that there are laws against this.Some know about the laws but donít realize that they apply to the very minor incidences just the same as the big ones.With the growth of the Internet, and the vast amount of information and works of others that are now so easily accessible, the whole scope of copyright and ďintellectual propertyĒ (as internet related works are becoming known as) has changed.New laws are being written and old laws updated to take into consideration electronic communications and the Internet.And if you have an image on a web site, even with some of the tricks that claim to block capturing an image on a page, if it can be viewed there are ways to get a copy of it.

 

Now on the flip side, not only can we, as individuals be infringed upon, we can also infringe upon someone elseís copyright.With the cost of flat bed scanners being so cheap to buy and almost every one-hour photo lab, drug store, Costco, Wal-Mart, etc., having a copy center, it has never been so easy to infringe on the copyrights of someone else, be they a professional photographer or non-professional.Many people think nothing of taking the one picture they just bought from the professional photographer of their winning dog at the last show, doing a scan of it on the $90 flat bed scanner they got for Christmas and printing off a dozen copies on their ink jet printer.In doing this, not only has the photographer lost revenue but you have infringed on his copyrights. Yes, you paid for the one picture, but the photographer still retains the copyright on the image (unless he signs it over to you in writing or gives you permission to make additional copies) and you cannot legally make copies of it without his permission. Or legally use it in a commercial ad or brochure if you only bought it for personal use, such as in a scrapbook or display at home or work. The show photographer should spell out what you are entitled to do with the picture you bought, including if it is for personal use only, or if it can be used for brag publications in club newsletters or even in a ad for your kennel or the next litter of puppies.Just because the photographer didnít spell it out or he might not be experienced enough to realize what his rights are, it does not take those rights away from him.So the next time you have a show photograph done of your dog, and it isnít written on the bill of sale, ask the photographer what usage rights go with the picture.This is especially important if you plan on using the picture for advertising or other commercial work.He may only require that proper credits be given or it could be that he charges more.Itís best to find out before and not after.

 

Have you ever tried to have a picture taken at a studio or by a professional photographer, copied at a lab or store and been told they couldnít without the photographerís written permission?If so, that is because they could be infringing on a copyright if they make the copy.While a photographer might not go after you for having the picture copied (depending on a number of things, it might not be worth the time, effort and expense), they could very well seek damages from the store that did the copying. A lot of companies and stores are finding this out the hard way and are educating their employees about copyright.Sometimes, even if the photograph looks professional, they wonít copy it even when the customer tells them that they were the one that took the picture.Though it can be frustrating, you can also feel flattered if you are not a professional photographer and this happens to you.

 

The issue of customers making copies of the pictures they have bought from professional photographers has been a major topic of discussion among the professional photographers and message boards that I associate with.Itís been an on-going issue and while a solution to preventing this has yet to be found (and probably never will), most agree that customer and business education and awareness of copyright issues can greatly reduce the number of people that do illegal copying.Most do not do this to save a few dollars.They do it because they donít know that there is anything wrong with it.

 

For more information on copyright and copies of the laws, circulars, forms and fees, as well as the address where you send in your registration, you can check out the web site of the Library of Congress at:http://www.loc.gov/copyright/

 

Although some of the information on the above web site is not the easiest to understand nor is all the information for a given subject always in one spot, the people at the Copyright Office have done a pretty good job of laying it out.If the frequently asked questions (FAQís) donít answer your questions and you canít find it among all the pages on there, you can send a question directly to the copyright office and they will either answer it or direct you to where the documentation is that covers it.And if you have a more complicated question or need, then you might want to talk to a copyright attorney.Just like with any lawyer, not all are the same, so do some shopping around to make sure you get one that will be able to fill your needs. Also keep in mind that copyright is a Federal matter and if you need representation the lawyer will need to be able to practice in a Federal court.I have found in some cases, there is a free initial consultation to see if the fit is right for both of you.Be sure and ask if they do this and what their hourly rate is.

 

There is a lot to the issue of copyright and I have probably not even scratched the surface of it.But if it has raised your awareness of copyright and the issues that surround it or has helped you in any way, then I have done what I intended to do.If I can answer any questions, I will be glad to. I can be reached at mjordan@europa.com or through my web site at http://www.sitnprettyphoto.com.