Chapter I
Preliminary
1. short title, extent and commencement:
(1) This Act may be called the Copyright Act, 1957.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint
2. interpretation:
In this Act, unless the context otherwise requires.
(a) "Adaptation" Means:
- In relation to a dramatic work, the conversion of the work into a non dramatic work;
- In relation to a literary work or an artistic work, the conversion of the work into
a dramatic work by way of performance in public or otherwise
- In relation to a literary or dramatic work, any abridgement of the work or any version
of the work in which the story or action is conveyed wholly or mainly by means of
pictures in a form suitable for reproduction in a book, or in a Newspaper, Magazine,
Wire, Electronics Media or similar Periodical;
(b) "Artistic work" Means:
- A Photograph, Painting whether or not any such work possesses artistic quality;
- In relation to a photograph, the person taking the photograph; "Communication to
the Public" means making any work available for being seen or heard or otherwise
enjoyed by the public directly or by any means of display or diffusion other than
by issuing copies of such work regardless of whether any member of the public actually
sees, hears or otherwise enjoys the work so made available.
explanation:
For the purposes of this
clause, communication through Net, Satellite or Cable or any other means of simultaneous
communication to more than one household or place of residence including residential
rooms of any hotel or hostel shall be deemed to be communication to the public;
"Computer Programme" means a set of instructions expressed in words, codes, schemes
or in any other form, including a machine readable medium, capable of causing a
computer to perform a particular task or achieve a particular result; "Copyright
Society" means a society registered under sub-section (3) of section 33.
- "Engravings" include etchings, lithographs, wood cuts, prints and other similar
works, not being photographs;
- "Exclusive Licence" means a licence which confers on the licensee or on the licensee
and persons authorised by him, to the exclusion of all other persons (including
the owner of the copyright), any right comprised in the copyright in a work, and
"Exclusive Licensee" shall be construed accordingly;
(c) "Government Work" means a work which
is made or published by or under the direction or control:
- The Government or any department of the Government;
- Any Legislature in India;
- Any Court, Tribunal or other Judicial Authority in India;
(d) "Photograph"
includes photo lithography and any work produced by any process analogous to photography
but does not include any part of a cinematograph film; "Plate" includes any stereotype
or other Plate, Stone, Block, Mould, Matrix, Transfer, Negative, (Duplicating Equipment)
or other device used or intended to be used for printing or reproducing copies of
any work, and any matrix or other appliance by which Sound recording for the acoustic
presentation of the work are or are intended to be made;
copyright act
chapter II
International Copyright
Power to extend copyright to foreign works. The Central Government may, by order
published in the Official Gazette, direct that all or any provisions of this Act
shall apply
(a) To work first published in any class territory outside India to which the order
relates in like manner as if they were first published within India;
(b) To unpublished works, or any class thereof, the authors whereof were at the
time of the making of the work, subjects or citizens of a foreign country to which
the order relates, in like manner as if the authors were citizens of India;
(c) In respect of domicile in any territory outside India to which the order relates
in like manner as if such domicile were in India;
(d) To any work of which the author was at the date of the first publication thereof,
or, in a case where the author was dead at that date, was at the time of his death,
a subject or citizen of a foreign country to which the order relates in like manner
as if the author was a citizen of India at that date or time; and thereupon, subject
to the provisions of this Chapter and of the order, this Act shall apply accordingly:
copyright act
chapter III
Civil Remedies
definition:
For the purposes of this Chapter, unless the context otherwise requires, the expression "Owner of Copyright"
shall include.
(a) An exclusive licensee
(b) In the case of an anonymous or pseudonymous Literary, Dramatic, Musical or Artistic
work, the Publisher of the work, until the identity of the author or, in the case
of an anonymous work of joint authorship, or a work of joint authorship published
under names all of which are pseudonyms, the identity of any of the authors, is
disclosed publicly by the author and the publisher or is otherwise established to
the satisfaction of the Copyright Board by that author or his legal representatives.
Civil remedies for infringement of copyright. Where copyright in any work has been
infringed, the owner of the copyright shall, except as otherwise provided by this
Act, be entitled to all such remedies by way of injunction, damages, accounts and
otherwise as are or may be conferred by law for the fragment of a right: Provided
that if the defendant proves that at the date of the infringement he was not aware
and had no reasonable ground for believing that copyright subsisted in the work,
the plaintiff shall not be entitled to any remedy other than an injunction in respect
of the infringement and a decree for the whole or part of the profits made by the
defendant by the sale of the infringing copies as the court may in the circumstances
deem reasonable.
owners of copyright to be party to the proceeding:
In every civil suit or other proceeding regarding infringement of copyright instituted
by an exclusive licensee, the owner of the copyright shall, unless the court otherwise
directs, be made a defendant and where such owner is made a defendant, he shall
copyright act
chapter IV
Offences
Shall be punishable with imprisonment for a term which shall not be less than six
months but which may extend to three years and with fine which shall not be less
than fifty thousand rupees but which may extend to two lakhs rupees.
Provided that (Where the infringement has not been made for gain in the course of
trade or business) the court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than six months
or a fine of less than fifty thousand rupees.
Any police officer, not below the rank of a Sub Inspector, may, if he is satisfied
that an offence under section in respect of the infringement of copyright in any
work has been, is being, or is likely to be, committed, seize without warrant, all
copies of the work, and all plates used for the purpose of making infringing copies
of the work, wherever found, and all copies and plates so seized shall, as soon
as practicable, be produced before a Magistrate.
copyright act
chapter V
Appeals
appeals against certain orders of magistrate:
Any person aggrieved by an order made under sub section of section 64 or section
66 may, within thirty days of the date of such order, appeal to the court to which
appeals from the court making the order ordinarily lie, and such appellate court
may direct that execution of the order be stayed pending disposal of the appeal.
Appeals against orders of Registrar of Copyrights and Copyright Board. Any person
aggrieved by any final decision or order of the Registrar of Copyrights may, within
three months from the date of the order or decision, appeal to the Copyright Board.
Any person aggrieved by any final decision or order of the Copyright Board, not
being a decision or order made in an appeal under sub section, may, within three
months from the date of such decision or order, appeal to the High Court within
whose jurisdiction the appellant actually and voluntarily resides or carries on
business or personally works for gain; Provided that no such appeal shall lie against
a decision of the Copyright Board under section 6 Copyright Notice: Digital images,
Photographs and the Internet Copyright Notice Number: 1/2014 Updated: March 2014
Intellectual Property Office is an operating name of the Patent Office what is a
Copyright Notice?
Copyright Act
chapter VI
What is a Copyright Notice?
Copyright Notices are published by the Intellectual Property Office to help explain
specific areas of copyright in the UK. This notice is aimed at small Businesses
and Individuals who may wish to use digital or photographic images on the web. It
also provides advice for people who may find their own images being used online.
This notice is not meant as a substitute for legal advice on particular cases, but
it can help readers gauge the possible consequences of a particular course of action.
It is not a conclusive view of the law only a decision of the court can deal with
that. Copyright in images and photographs the basics In short, most images and photos
are likely to be protected by copyright. This means that a user will usually need
the permission of the copyright owner(s) if they want to copy the image or share
it on the internet. References to “images” in this Copyright Notice include:
Digital photos taken on Mobile Phones and Digital Cameras; images that were first
generated on photographic film and any digital images created from them; and images
such as diagrams and illustrations. Please note that some of the issues raised in
this Copyright Notice will only apply to photos. Who owns copyright in an image?
The person, who creates an image (“the creator”), such as somebody who takes a photo,
will generally be the owner of the original copyright. However, if it was created
as part of the creator’s job, the employer will generally own the copyright.
A creator can license the work directly themselves. They can also “assign” (transfer)
the copyright to another person or allow that other person to license the work on
their behalf. Licensing is giving another person or organisation permission to use
a work such as an image, often in return for payment and/or on certain conditions.
What if there is more than one copyright owner? An image might have multiple copyright
owners if there was more than one creator. An example might be a cartoon created
by a number of artists and illustrators, who then license use to a website owner.
Images on the web may also be in a “chain”. For example, if you wanted to use image
‘A’ which also contains image ‘B’, then you would need permission from both owners
of image ‘A’ and ‘B’.
Simply creating copies of an image won’t create a new copyright in the new item,
but when an analogue image is digitised lawfully (that is, with permission from
the copyright owner), then in principle a new copyright could be created if there
was sufficient skill and creativity to alter the analogue image enough for it to
be a new and original work. Opinions differ on how much of a change would be needed.
Generally speaking, if you are just making minor changes, then the only copyright
would still be that which belongs to the person who created the original image.
Some images which appear on the internet are controlled by picture libraries which
either own the copyright in the images or have the copyright owners’ permission
to sell rights to use the images. The picture libraries sometimes restrict how the
copies of the photos are used as part of their contract terms when they allow people
to use the images. The restrictions may not arise out of copyright law an image
library can set terms and conditions of use in respect of images it supplies, including
ones which are out of copyright, through a contract.
How long does copyright in images or photos last? The length of the copyright period
will depend on when the image was created. Generally speaking, copyright in images
lasts for the life of the creator plus 70 years from the end of the calendar year
of their death. That means that images less than 70 years old are still in copyright,
and older ones may well be, depending on when the creator died. For old images or
photos, you may never be entirely sure if something is in copyright, but knowing
the age of the photo will be a good guide to make an educated guess whether the
photo is likely to be protected by copyright. There may be material in the image
which helps to date it. For instance, a photo of a particular brand of motorcar
may be evidence that the photograph could have been taken after the first year of
manufacture. Also, in the case of an old image where copyright appears to have expired
in the UK; you will need to find out whether the image was in copyright elsewhere
in the EU on 1 July 1995. If it was, the standard copyright period is the life of
the creator plus 70 years from the end of the calendar year of their death (regardless
of whether it was protected under historic UK copyright law). Is permission always
required to copy or use an image?
Sometimes permission is not required to copy the image. For example, if: the user
of the image also created it and owns the copyright in the image; the image is used
for specific acts permitted by law (“permitted acts”) in respect of which people
can use copyright works without permission from the copyright owner, such as for
private study or non commercial research; or the image is no longer in copyright.
If permission is required to use an image, permission will need to be obtained from
all the copyright owners, whether it is a single image with numerous creators, a
licensed image, or an image of other copyright works, for example. The key point
is that using an image requires obtaining permission from the owners of all the
rights in that image. Sometimes there will be one person or organisation that can
authorise permission for all the rights in that image; in other cases separate permission
may be needed from several individual rights owners. What if I do not know who the
copyright owner is? Copyright does not disappear simply because the owner cannot
be found. In a work where the copyright owner is not known or cannot be located,
permission to use the work cannot be obtained. These are known as orphan works,
and under the current law these cannot be copied. A forthcoming change in the law
will allow people to buy licences to use these works in some circumstances.
Even if there is no evidence of an owner, any unauthorised use of the photo without
permission would be an infringement of copyright. What if there is no © (copyright)
symbol, year or name with the image? The copyright symbol does not have to be present
for copyright to exist, so just because there is no name or copyright symbol associated
with a photo or image does not mean the copyright has expired.
Sometimes uploading and downloading of digital images causes the associated metadata
(which can give details of the copyright owner) to be removed accidentally. Deliberate
removal of metadata that identifies the copyright owner may be unlawful. Is there
any way I can be completely safe when I use an image from the internet? Almost any
image on the internet is likely to be protected by copyright, so it is only safe
to use it if there is specific permission to do so through a licence or in the terms
and conditions of the website supplying the image (assuming it is the copyright
owner’s website or another website which has the copyright owner’s permission to
allow other people to use an image). The use of licensed images ought to be much
safer than using unlicensed images. What are the consequences of copyright infringement?
When someone infringes copyright, there are various courses of action which could
be taken by the individual or organisation which owns the copyright. The user of
the image may be asked to purchase a licence, and a commercial arrangement might
be reached after which no further action is taken. However, legal action might be
taken by bringing a claim in court which could result in having to go to court for
a hearing. Court cases can be expensive, as they may result in the user of the image
paying the cost to use the photo, legal costs of themselves and the copyright owner
and possibly other financial compensation for copyright infringement. This could
amount to more than the cost of a licence to use the image. Further, the user of
the infringing copy could also be asked to take down the image from websites as
well, for example. Deliberate infringement of copyright on a commercial scale may
also lead to a criminal prosecution. Even in situations where people may think their
copyright infringement will not be detected, they run the risk of being discovered
and consequently being pursued through the courts.
examples:
I want to use my own images on the internet if you have created the images yourself;
you are generally free to use them as you wish. However, there are some instances
where you may not do what you like which include situations where: you are working
for a business or individual, and create images during the course of your employment;
you take a photo that has as its main subject a work that is protected by copyright
(for example, taking a photo of a painting at a modern art gallery) this would result
in your photo itself being an infringement of copyright; or you have agreed in writing
that the copyright in images you have created will belong to someone else.
I want to take photos on my Smartphone and upload them to the web If someone takes
a photo, copyright can exist in that photo. However, people taking photos on their
Smartphone and uploading them to the internet on social media sites should be careful
when they take photos of copyright works (such as paintings) when they are the main
subject of the photo. If someone takes a photo of a work in copyright (such as a
painting by an artist that is still alive), and it is the main focus of the image,
using that photo on the web would be an infringement of copyright. In other words,
people are allowed to take a photo of a room of paintings, but would need to be
careful about copyright infringement if taking photos of specific paintings. Taking
a photo of something that is not covered by copyright is not an infringement of
copyright for example, taking photos of animals, people or landscapes? I want to
use images sent to me by a friend or family member.
You need to treat these images as you would any other images where you know the
copyright owner and would need to ask for permission, unless the copyright has expired
in all aspects of the image. For example, photographs taken by a relative from a
recent family event would need permission from the creator to use online. I want
to use images I found on the web Images that have been found on the web may be used
in the following situations: you know the copyright term has expired in all aspects
of the image; you have permission from the copyright owner for exactly what you
want to do with it (for example, distribute to others) this may be in the form of
something like a Creative Commons licence or a licence you purchase from a picture
library; or you use the images for specific permitted acts.
Copyright Act
chapter VII
Creative Commons Licensed Material
I want to link to images I found online Sharing or posting a simple web link to
images posted publicly online by the copyright owner is usually not restricted by
copyright. The Court of Justice of the European Union has ruled that internet users
should be free to share links to material, for example photos or videos, providing
the material itself has been published freely online with the permission of the
rights holder. The right to share links however doesn’t go as far as allowing users
to share links that are designed to circumvent pay walls or other subscription only
services. Copying images and then hosting them on another website however will usually
amount to copyright infringement. You should ask permission from the copyright owner
before using images in this way. You may also infringe copyright if you use image
tags to insert images hosted elsewhere into your webpage (even without copying and
hosting the images yourself). This is more likely if the original images are posted
behind a pay wall or in some other restricted access environment such as a private
forum. Examples of activities in this vein that may require permission include blogging
other people’s images or using aggregator services which embed images into new web
pages.
A Guide To Copyright & Fair Use Laws
For Online Images
Everyone has heard the old adage, “A picture is worth a thousand words”. Pictures
are also worth a crap load of money to the person suing you for copyright infringement.
Today we’re talking about copyright and fair use laws (in the United States) for
online images.
all about copyright:
As content creators, we understand the importance of images. Using images to break
up a wordy post can make it appear less daunting and the right image can really
drive your message home. At a more juvenile level, images make reading way more
fun. The average two year old has no idea how to read, but if you give him/her a
stack of picture books they are entertained for hours. I’m of the belief that we
never grow out of loving pictures and while it’s tempting to Google the exact image
we have in mind (I’m guilty of it!), it’s really important that we don’t get sloppy
and neglect copyright laws.
what is copyright?
We see the little © all over the place, but what does it really mean and how did
it get there? In order to get a comprehensive and accurate understanding of copyright,
I went to the most official source I could think of the United States Copyright
Office.
Copyright, a form of intellectual property law protects original works of authorship
including literary, dramatic, musical, and artistic works, such as poetry, novels,
movies, songs, computer software, and architecture.
Now that we have a pretty explicit description of what copyright is, it’s time to
address when a piece of work is protected under copyright.
Copyright attaches the second a piece of original work is created and fixed. This
applies to both published and unpublished works. The moment you write a blog post,
you’re protected by copyright. The moment you upload a selfie, you’re protected
by copyright. The moment you take a selfie, notice your face looks so splotchy not
even a filter could make you look good you’re still protected by copyright even
if you don’t upload the image to Instagram.
You may be asking, “What’s the deal with the ©?” Copyright is an automatic right
and registering a piece of work with the US Copyright Office is voluntary. This
gives you the freedom to place the © on any of your work. However, if you choose
to bring a lawsuit for infringement, you will have to register your work.
exclusive rights of copyright:
A serious perk of a copyright is that it gives the creator of an original work complete
control over its use and distribution.
- The right to reproduce the copyrighted work.
- The right to prepare derivative
works based upon the work.
- The right to distribute copies of the work to the
public.
- The right to perform the copyrighted work publicly.
- The right to display
the copyrighted work publicly.
when can you use someone else’s image?
The rule of thumb is that you must receive authorization from the creator in order
to use his/her image (you’d be smart to get this in writing). Does this mean that
every single one of the billions of pictures on the internet is either authorized
by the creator or in violation of copyright? The answer is no and this is where
fair use comes into play.
Copyright Act
chapter VIII
All About Fair Use
Fair use is an exception and limitation to the rights of exclusivity that are granted
by copyright to the creator of a piece of work. In the US, fair use allows for limited
use of copyrighted material without authorization from the author of the creative
work. The purpose of fair use is to provide limited use if it benefits the public.
Don’t get too excited! Fair use isn’t a green light to use any image under the sun
– like everything in life, there are rules, and this isn’t one that is meant to
be broken. After reading Section 107 of the Copyright Act, I not only gained an
enormous respect for law students, but I also learned the limits of fair use.
The fair use of a copyrighted work, including such use by reproduction in copies
or phonorecords or by any other means specified by that section, for purposes such
as criticism, comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright.
As you can guess, fair use isn’t a black or white sort of thing. If you aren’t a
lawyer with a very in depth understanding of copyright law, there can be a lot of
confusion as to what is considered beneficial to the public. To help make things
a little more clearly, there are four factors that determine whether the use of
an image is considered “fair”:
The Purpose Of Use:
Educational, nonprofit,
scholarly, reporting, reviewing, or research.
The Nature Of Use:
Fact based or public
content (courts are usually more protective of creative works).
The Amount And Substantiality Used:
Using
only a small piece of the image, using only a small Thumbnail/low resolution version of the image
The Market Effect:
You could not have
purchased or licensed the copyrighted work as you can imagine, using a low resolution
image is probably not the ideal situation if you’re goal is create a professional
looking piece of content. On the flip side, if you’re doing a movie or book review,
it’s nice to know that inserting a picture of the movie/book won’t get you in trouble.
These fair trade rules are pretty natty gritty. If you’re interested in learning
a little bit more about what is considered fair use, check out this article from
Columbia University. You can also familiarize yourself with some specific internet
cases. Reading about the rulings should give you a better understanding.
Copyright Act
Chapter IX
How does this affect Content Creators/Curators?
The answer is pretty simple: As content creators/curators, we have a responsibility
to follow these rules because at the end of the day, it’s on us if we mess up. I
assure you the company you’re guest blogging for will be very unhappy if they receive
this in their inbox: Just to be clear, in the case above the demand for the single
image misuse was $8K. Now before you start getting all stressed out by this excerpt
of a cease and desist email, I have really good news for you: this email can be
easily avoided.
Safe Options For Online Images:
It should be pretty clear by now that fair use laws are pretty complicated. Heck,
if you’ve gotten this far in the post, past all the legal jargon, I commend you!
While you can definitely choose to do a ton of research, become familiar with the
rules, and continue to use Google Image search, I personally feel like this is a
pretty risky choice. It only takes one slip up to get slammed with a very unwelcomed
cease and discontinue email.
USING GOOGLE IMAGES TO FIND PHOTOS IS RISKY BUSINESS AND
COULD COST YOU.
I choose to make my own images using something like Omni Graffle or Photoshop, pay
for the images, or download free stock photos. The perks of choosing paid over free,
is that you’ll have a much easier time finding what you’re looking for. Here are
a few of my favorite resources.
paid stock photos portal:
napolstockimage: One of the largest Indian Image Databases over 1 million stock images and
illustrations, you’re guaranteed to find what you are looking for. Portfolios of images have been stocked since 1950. Professional archive size
10,00,000 images include high quality Vectors, Clipart and Illustrations.
Napolstockimage for Newspaper, Magazine, Web
Development, NGOs, Advertising, Marketing Communication, Educational Institute and
Designer.
getty images:
With one of
the largest image databases over 80 million still images and illustrations, you’re
guaranteed to find what you are looking for. The downside: the images are often
expensive and a Getty image is one of the biggest purveyors of cease and desist
emails (so make sure you pay for them!).
free stock photos portal:
flickr: Flickr is probably the most
popular resource for free stock images. They have a combination of professional
photos and amateur photos, so you may have to do some digging to find what you want.
While a lot of the pictures are fair game on Flickr, you have to confirm that you
follow the rules of the creative commons license they have selected.
Copyright Act
Chapter X
Grant of Authority
The Supplier hereby appoints napolstockimage
as Supplier's exclusive distributor to sell, license or sublicense Exclusive Content
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endeavours on the terms set forth in this Agreement. For all Exclusive Content,
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produce and sell prints or similar image products, or publicly perform or display
the Exclusive Content to prospective licensees in any and all media now in existence
or that may in the future be introduced (i) through the Site; (ii) through other
venues owned or operated by napolstockimage
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in Section 3(c); and
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end users. napolstockimage and its Distribution
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In addition to the foregoing grant napolstockimage
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napolstockimage and its Distribution Partners
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manner that might distort the contextual integrity of the Exclusive Content. For
greater clarity, cropping and brightness/contrast corrections are permissible where
the integrity of the Exclusive Content has not been distorted.
The Supplier agrees that neither napolstockimage
nor any of its directors, officers, employees, partners, affiliates or agents shall
be liable for any damages, whether direct, indirect, consequential or incidental,
arising out of the use of, or the inability to use any Exclusive Content or Descriptive
Information, or any error, omission or other matter relating to a model or property
release respecting Exclusive Content or Descriptive Information.
Using the member name supplied by you, napolstockimage
shall use commercially reasonable efforts to credit you as the source of Exclusive
Content, but shall have no liability for lack of credit. You acknowledge and accept
and therefore waive any right to object to the fact that it is common business practice
for commercial uses that the creator of Content is not credited, that Content may
be modified, used in connection with sensitive topics and may be used or modified
in ways that may be controversial or unflattering.
Copyright Act
Chapter XI
Copyright Guidelines
The Board of Directors of the American Society of Media Photographers, the Professional
Photographers of America, Photo Marketing Association International, the Association
of Professional Color Imagers, the Professional School Photographers Association
International and the Coalition for Consumers' Picture Rights, adopt the following
guidelines concerning copyright practice for members of the photo industry.
Customer Copyright Information:
Copyright can be confusing. What is copyright, who owns what, why all the fuss,
how can I get copies made, and are there any exceptions or questions that frequently
rise. This is designed to provide information to help customers understand why some
photos cannot be copied by the lab.
What Is Copyright?
The U.S. Constitution and the Federal Copyright Act give "copyright" protection
to "authors" for their "original works," such as photographs. Among the protections
that copyright owners have are the exclusive rights to:
- Make copies of the work
- Prepare other works based on the original
- Distribute copies of the work to the public by sales, rental, lease, or lending
- To publicly perform and display the work.
These rights are protected by laws which provide for damages and criminal penalties
for violations. Both the customer and the lab are subject to the law.
Who Owns What?
The law says the "author" is the owner of the copyright. The author of a photo or
image is usually the person who snapped the shutter or created the image. If you
took the photo, you own the copyright. If a professional photographer took the photo
for you, then he or she owns the copyright. If that photographer is an employee
of a studio or other person in the business of making photos, then his or her employer
is considered the author.
Prior to 1978, court cases said a customer who commissioned a photo was the employer
of the photographer, so customers could get reprints made without any problem. In
1979, the U.S. Supreme Court said that was no longer true. To be an employee, the
court said a person would have to be considered an employee under the traditional
tests such as is used to impose payroll taxes, social security, and similar laws.
That is not the usual customer-photographer relationship.
why all the fuss?
The primary reason is economic. Photographers feel they invest a lot of time and
creative energy in getting experience, and setting the camera, pose lighting, background,
and extra shots to get the right one. They generally price their services by taking
into account the fact customers will purchase their prints from the photographer.
Thus, the photographer wants the customer to come to him or her to request reprints
so an appropriate fee can be charged.
Some photographers charge a realistic fee "up front" to compensate for their services,
whether or not prints are ordered. They may authorize the customer to have prints
made anywhere.
Some photographers also are concerned about artistic integrity. Since their name
is associated with the photos, they want control over how the reprints look. There
may be many other reasons. You are encouraged to discuss these issues with your
photographer. That way, his or her position can be fully explained, and you can
obtain the additional copies you desire.
how can i get copies made?
If we cannot make the copies for you, go to your photographer and request them.
A professional photographer will do their best to see your needs are met. If they
cannot make the copies, they may authorize us to make them. A consent form is available
for you to take to the photographer.
are there any exceptions?
Generally no. In some unique circumstances, we may be able to consider special requests.
We will gather the information, investigate to the extent necessary to see if permission
can be obtained, and make a decision based on our best judgment of how the law applies.
Please understand if we tell you we cannot make the copies. It is our legal obligation
to protect the photographers to the extent possible, and to keep you and ourselves
from incurring liability.
all members of the photo industry should:
- Recognize the photographer or studio as the owner of the copyright in his or her
photographs in most circumstances, particularly in the case of professional portraits.
- Encourage greater enjoyment of photography through the use of photographs, made
in compliance with applicable taxes.
- Encourage all members of the photo industry to educate and inform their customers
and employees of the requirements of the copyright laws, and the need for adherence
to and support of those laws. This should include working to educate the public
that the purchaser of a photograph does not automatically obtain the right to make
copies.
- Provide reasonable notice to customers that the permission of the photographer is
necessary under federal copyright law in most circumstances for copying or other
manipulation of a photograph.
- Support and work together to obtain amendment of the Copyright Act to eliminate
copyright registration as a precondition for statutory damages and attorneys' fees
in cases involving photographs, provided however, that the amendments also bar any
award of statutory damages or attorneys' fees for innocent infringement. The parties
will work together and with Congress to make clear the meaning of "innocent infringement".
- Recognize that when infringement occurs that is not innocent, statutory damages
and attorneys' fees may be awarded. Substantial awards should be made in cases of
willful infringement, or repeat infringement after notice. Where infringement is
innocent, no statutory damages or attorneys' fees should be awarded.
- Endorse the development of a voluntary identification system for copyrighted photos
so that labs and other users may properly locate, seek permission from, and compensate
copyright owners for their copyrighted work.
- Work together to promote the growth of the industry and ensure that new imaging
technologies are used in responsible ways consistent with the rights of all concerned.
in addition, photographers should:
- Prior to completion of the sales process, provide notice to customers of the photographer's
ownership of copyright, in an effort to avoid confusion about the rights of the
photographer.
- Provide customers with the information necessary to obtain additional copies of
the photographs.
- Where reasonably possible, identify and mark their photographs sufficiently to permit
others to know whom to contact to obtain permission to copy, electronically or otherwise
manipulate, or prepare other derivative uses of the photo.
- Respond promptly to requests for permission to copy, electronically or otherwise
manipulate, or prepare other derivative uses of the photo, although there is no
obligation to grant such permission.
- Give written notice to the photo processor when a photographer believes his or her
copyright has been infringed, in an effort to prevent further infringement, or determine
the cause of the alleged infringement, and to permit possible resolution of the
matter without the need for litigation.
in addition, photo processors should:
- Notify customers that the photo processor does not copy or manipulate photos bearing
a copyright notice without the permission of the copyright owner names in the notice.
- Provide notice to customers, where applicable, that copyrighted photographs will
not be accepted without the permission of the photographer (e.g., "No Copyrighted
Photos"), when photo processors use promotional techniques, such as mail order and
drop boxes that are within their control. Where the promotional techniques are not
within the control of the photo processor, the person in control should be requested
to provide such notice.
- Educate and inform responsible employees about their responsibilities, under copyright
law and established policies and practices.
- Inspect the front and back of photographs submitted for copying to determine if
a copyright notice, or other notice that the work is professional (such as a studio
name or logo), is present or appears to have been removed. In either event, the
photo processor should decline to copy or manipulate the photograph unless the customer
reasonably establishes that copying is permissible.
- Inspect the front and back of an unmarked image submitted for copying to determine
if it is reasonably recognizable as a professional photograph. Questionable cases
should be separated from routine orders and brought to management's attention. Reasonable
efforts should be made to determine whether the image is a professional image.
- Utilize the following guidelines in evaluating a request to copy photographs which
the photo processor has reason to believe may be professional.
- It is generally reasonable for a photo processor to rely on a written consent to
copying or other manipulation from the photographer or studio named in a copyright
notice or other marking.
- Where the image is identified as a professional photograph by a mark, or it reasonably
appears that a mark has been altered or removed, it generally is not reasonable
to rely solely on statements by customers claiming a right to copy the photograph.
- Where there is no marking identifying a photograph as a professional photograph,
but there is a question about whether the photograph is professional, it is generally
reasonable for a photo processor to rely on a written statement by the customer
that the customer understands that copies must be authorized by the photographer
and that he or she is the photographer, or has received such authorization.
- Circumstances such as prior written warnings from a photographer or prior dealings
with a customer may indicate that further confirmation is necessary.
- Copying or restoring a photograph for the personal use of a customer may be reasonable
in cases where the age of the photograph or the circumstances are such that the
photographer or studio is unlikely to object to copying, and all reasonable efforts
have been made to obtain permission from the photographer. The industry will work
together to develop further guidelines for such copying.
- Document a claim of "fair use" in writing by an identified customer, with a description
of a legitimate fair use, and the copy or manipulation should be appropriate and
limited to the fair use purpose which is claimed. The industry will work together
to develop further guidelines for such copying. These guidelines are not intended
to strengthen or weaken the doctrine of fair use as incorporated in the Copyright
Act and as developed by the courts.
general:
These guidelines only deal with activities by industry members and are not intended
to excuse or mitigate customer infringement liability under current copyright law.
While the customers' knowledge and application of copyright law and practices may
have a significant impact on the industry, guidelines for the customers' behavior
are not provided. An industry member's efforts to follow these guidelines should
be viewed on their own merits.
The photo industry agrees to work together to develop
further guidelines and practices relating to:
- Practical and effective means of identifying photographs as professional photographs.
- Standardize copyright warnings.
- "Fair use" copying.
- Restoration and copying of photographs where the age of the photograph and the circumstances
are such that the photographer or studio is unlikely to object to copying.
- Processing of undeveloped customer film on automated equipment, where determination
of the content of the latent images and the detection of infringement may not be
possible.
- These guidelines are premised on the belief that litigation is detrimental to the
photo industry, and following these guidelines will help avoid it. The guidelines
recommend to the courts that in cases where an infringement has been found to have
occurred, the extent of the good faith efforts by the parties to follow these guidelines
should be considered in determining whether the infringement is innocent, negligent,
or willful.
a sample copyright policy, which can be adapted to
individual company needs:
purpose:
All images are copyrighted by someone, even ordinary family photos. It is the intention
of this firm to comply with the copyright laws and to protect the ownership rights
or copyright holders. At times, the existence of a copyright claim or the identity
of the copyright owner is not apparent. The person who possesses the photo is not
always the copyright owner. The purpose of this policy is to provide a method for
determining who the copyright owner is, and to provide guidance on handling copy
requests.
policy:
- Notice: Point of sales/order taking
materials, self copy machines, and counters shall include a notice that we do not
copy photos without the permission of the copyright owner. The notice reads as follows:
"WE RESPECT COPYRIGHTS"! There are laws that
protect copyrights. It is usually illegal to copy photographs taken by others without
their permission. Check with the sales associates to help in getting permission.
- General Copying Policy: Where the photos
were taken by our customer, they may be copied upon request. Where there is a reasonable
indication that someone other than our customer is the copyright owner, the photo
will not be copied unless approved by an authorized Manager or Assistant Manager.
- Inspection: Copy requests by customers
and incoming reprint orders shall be inspected to determine if: 1) The materials
have a copyright claim or other indication that the photos were taken by a professional
photographer or someone other than our customer, or 2) such a notice was removed
or obscured. If there is no such notice or other indication that the photo was taken
by someone else, it may be copied. If such a notice or indication exists, follow
the Explanation to Customer section or refer the request to an authorized Manager
or Assistant Manager.
- Authorization-Exception: An authorized
Manager or Assistant Manager shall determine whether the questionable orders, or
exceptions to the policy, will be processed or returned. If returned, a notice will
be given to the customer following the Explanation to Customer section, with the
reasons for not processing the order.
If the order is to be processed, the basis for the decision to proceed shall be
documented in accordance with this policy and industry Copyright Guidelines.
Copies can be authorized under the following circumstances if there are no other
factors suggesting the law would be violated:
- The customer has a written consent to copying or other manipulation from the photographer
or studio named in a copyright notice or other marking. A sample Photographer's
Copyright Consent Form is available from PMA.
- A prior agreement with the photographer gave a blanket consent for this customer
to obtain copies in the future without further documentation.
- When there are no markings identifying the photograph as a professional photograph,
but you still have a question about whether it was made by a professional, you may
copy upon receiving a written statement that the customer understands that copies
must be authorized by the photographer and that he or she is the photographer, or
has received such authorization. A sample Customer Copyright Declaration Form is
available from PMA.
- Copying or restoring a photograph is permitted for the personal use of a customer
in cases where the age of the photograph or the circumstances are such that the
photographer or studio is unlikely to object to copying, and all reasonable efforts
have been made to obtain permission from the photographer. A sample Customer Copyright
Declaration Form is available from PMA.
- A claim of "fair use" may permit the copying. Document the claim in writing with
a description of a legitimate fair use. The copy or manipulation must be appropriate
and limited to the fair use purpose which is claimed. A sample Customer Copyright
Declaration Form is available from PMA.
1. explanation to customer:
The customer is likely to be upset over our refusal to make the copies. Your task
is to provide them with sufficient information so they understand the reasons for
the decision, and give them a method to solve the problem. The following approaches
should be considered:
- Give them a copy of the Customer Copyright Information pamphlet (available from
PMA). Explain the information so they understand it.
- Show them the reason you believe the photo was taken by someone else.
- Ask whether they have permission to make the copies. Their word alone is not sufficient
if the photo is marked or appears to have been altered.
- Offer to call the photographer to request permission. The name, address, telephone
number, or other identification of the photographer may appear on the photo. If
you have a name, but no address or phone number, the Professional Photographers
of America has a member locator service.
- Ask questions concerning where the photo came from, who took it, and what it will
be used for. The answers to these questions may indicate copying is permitted. Refer
the request to a Manager or Assistant Manager. Review the Authorization-Exceptions
section for situations where the copy can be made.
- Offer them the consent form to request the photographer to give permission to copy
or to transfer ownership of the copyright. Sample forms to obtain consent, transfer
or license are available from PMA.
2. appearance of professional photos:
It is often difficult to determine whether a photo was taken by a professional.
When a copy is requested, the overall appearance must be considered. The following
are some factors to consider in concluding whether a photo is a professional photo:
- The presence of a copyright notice, i.e., the symbol "©," the word "copyright" or
"copra." and the name and year.
- The name of a photographer or studio.
- Use of paper with a professional watermark or notice.
- Unusual marks or alterations to a photo to cover or eliminate the above markings.
- Formal poses characteristic of a sitting.
- Even distribution or lighting and the absence of natural shadows.
- Use of backgrounds typical of professional photos.
- The photo was published, such as in a textbook or magazine.
3. record keeping:
The records generated in following this policy shall be retained in a monthly file,
in alphabetical order, by our customer's name. After the current month ends, the
records shall be put in long-term storage and marked for destruction three years
after the month in which they were generated.
Copyright Act
chapter XII
Copyright in Photographs
The owner of copyright in a photograph enjoys the exclusive right to reproduce,
communicate “to the public by telecommunication,” and exhibit her photographs. The
copyright owner is subject to important exceptions the only person permitted to
copy, print, download/upload, or publicly displays her photographs.
However, the exceptions are important. The Copyright Act balances this exclusive
grant of rights to the copyright owner with other “user rights.” First, even though
a photograph is protected by copyright, anyone is permitted to use copyrighted photographs
in a fair way for the purposes of research, private study, criticism, review, and
news reporting. The fairness of the dealing is weighed by considering the purpose,
nature, and extent of the use.
do photographs enjoy copyright protection ?
Yes, photographs are considered to be “artistic works” in the current federal law
that governs copyright in Canada the Copyright Act. As with any artistic work, copyright
protection only extends to photographs that are both “original” and “fixed” in a
tangible form. Generally, most photographs meet these criteria. For more detail,
see below. In the Act, a photograph is specifically defined as including “Photo
lithography and any work expressed by any process analogous to photography.” Case
law indicates that the court will consider any physical construction of a work capable
of being subject to copyright.
Copyright protection starts at the time of the image creation. When using a traditional
film camera, the copyright of photograph starts the moment the image gets fixed
onto the film negative by clicking the camera’s shutter. When using a digital camera,
the copyright of the photograph starts when the image is recorded via the electronic
image sensor, which is typically a CCD or CMOS sensor chip. For ownership of the
copyright.
what makes a photograph “original” ?
According to a supreme court decision in 2004, CCH Canadian Ltd v Law Society of
Upper Canada, an author of a photograph must exercise “skill and judgment” for it
to be protected by copyright. Some sort of intellectual effort must be apparent
- something that can be characterized as more than a mechanical exercise.
In Ateliers Tango Argentin Inc. Festival d’Espagne & d’Amérique Latine Inc, the
court stated that the “skill and judgments” can be measured through elements like
the angle of the shot, lighting effects, framing, costumes, location research, duration
of the shoot etc. A photograph exhibits originality even by the particular angle
and point of view at which the photographer takes it.
It is rare for photographs to not meet this minimum threshold of originality. A
photograph may fail this test, for example, where a photographer simply recreates
a copy of an existing photographic work. Although not binding in Canadian courts,
the case of Bridgeman Art Library Corel Corp, ruled that exact photographic copies
of public domain images could not be protected by copyrighting the United States
because the copies lack originality. Even if accurate reproductions require a great
deal of skill, experience, and effort, the key element for copyrightability under
U.S. law is that copyrighted material must show sufficient originality.
if a photograph has been published on the internet,
is it still protected by copyright ?
Yes, photographs published on the Internet are still protected by copyright. Their
use requires the permission of the copyright owner, unless the use is covered by
an exception under the Copyright Act such as fair dealing.
Internet users often automatically grant a website permission to use a photograph
by agreeing to the website’s terms of use. The terms of use for social networking
and photo sharing websites such as Facebook or Flickr for example, usually grant
the website a non exclusive license to use uploaded photographs but not further
permission for other website users to distribute them.
who owns the copyright in photographs i take ?
Generally, you are the copyright owner of photographs you take using your own film
or digital camera. However, you will not own the copyright in any photograph you
take with someone else's film or digital camera. Also, you will not own the copyright
in any photograph you take during employment or for commissioned works where the
clients have paid in full for your service.
who owns the copyright in photographs i take during
employment or apprenticeship ?
Employment is one such exception. As long as a photograph is taken in the course
of employment or apprenticeship, copyright belongs to your employer, even if you
use your own camera and film. However, this default can sometimes be altered via
contractual agreements. Freelance photographers for example would often specify
terms in their contracts to ensure that they retain authorship and first ownership
of the photographs they take.
Furthermore, if the photograph taken over the course of employment is a contribution
to a newspaper, magazine, or similar periodicals, then in the absence of any agreement
to the contrary, the photographer still reserves a right to restrain publication
of the photograph.
In spite of this rule, it is common practice for customers to sign an agreement
that assigns professional photographers copyright to the photographs they take.
If the customers wish to remain the copyright owner, be sure to carefully make an
agreement and discuss the issue with the customer. Most photographers will agree
to let customers remain the copyright owner, as most of their revenue is from the
payment of services and purchases of prints, not exploiting copyright in their customers’
images.
Freelancers should note that even if you own the copyright to the photographs you
took for a commissioned work, you cannot freely give or sell those prints or negatives
to a newspaper where the subject later come into public light. Doing so may violate
duty of confidentiality, privacy, or other legal obligations and customers could
sue to stop your action and recover monetary damages. Also, the photographer could
not have licenced advertisers use the photorgraphs to endorse a product. Customers
could sue both the photographer and the advertiser.
liability for photographing intangible property
All photographs are, fundamentally, reproductions of the scenes within their frames.
In some cases, you may infringe the copyright in other works by photographing them.
When you reproduce an entire work “or any substantial part thereof” within your
photograph, you may infringe copyright subsisting in that work. Common sense provides
a useful guideline here. If a billboard advertisement is visible only in the background
of your photograph, it is unlikely that you reproduced a substantial part of the
work. However, if you take a close-up photograph of artwork displayed in a private
gallery, you may run afoul of copyright.
can i take photos of corporate logos and other trademarks ?
You are unlikely to infringe trademark law by photographing logos or other trademarks.
Trademark infringement only occurs when a trade mark is used in a way that associates
it with one's own wares or services. As long as you do not use photographed trademarks
to advertise or sell your own products or services, you are unlikely to infringe
upon anyone else's trademark.
can photographs containing substantial parts of copyrighted
works be permitted under fair dealing ?
“Fair dealing” may provide additional protection, even where your photographs substantially
reproduce another work and do not benefit from other exceptions. Your photograph
may not infringe copyright where your use of the copyrighted work is fair and for
the purposes of research or private study, criticism or review, or news reporting.
Whether your dealing is considered fair, so as to benefit from these fair dealing
exceptions, depends on the purpose of the dealing, character of the dealing, amount
of the dealing, alternative to the dealing, nature of the work, and the effect of
the dealing on the work. For some purposes, additional requirements also apply.
Foremost, to benefit from the exceptions for criticism and review or for news reporting,
you must attribute the source and author of the work.
can i take photographs of public property, like parks
and public monuments ?
You may freely photograph and publish public property, including any sculptures
or other artistic works on public property, as long as the works are “permanently
situated in a public place or building.” For works that are present in a public
space, but not permanently situated there, fair dealing exceptions may also apply.
can i take photos of private property ?
It is generally permissible to photograph private property from a distance, as long
as you do so without trespassing onto the private property itself. However, when
photographing around people's homes, you must ensure that you respect the privacy
rights of the people living there. Courts recognize that “[a] person's reasonable
expectation of privacy in his or her own home is ordinarily very high.” It is best
not to photograph inside windows or backyards, for example, without permission.
Photographs of private property sometimes show other copyrighted works in the background,
such as signs and billboards. This is permissible as long as the works are included
“incidentally and not deliberately.”
NOTE: IF YOU HAVING MORE QUESTIONS/QUERY PLEASE EMAIL TO
INFO@NAPOLGROUP.COM
MUMBAI, MAHARASHTRA, INDIA