Know Your Copyrights

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
copyrights

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.

google
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 to third parties worldwide and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Exclusive Content, Supplier grants napolstockimage:

The exclusive worldwide right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, 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 or its affiliates from time to time, and (iii) through Distribution Partners (defined in Section 3(c); and

The right to grant perpetual, worldwide, non exclusive licenses or sublicenses to end users. napolstockimage and its Distribution Partners will determine the terms and conditions of all licenses of Content granted by them, but will not use or license Content for uses that are defamatory, pornographic or otherwise illegal.

In addition to the foregoing grant napolstockimage and its Distribution Partners may post, reproduce, modify, display, make derivative works or otherwise use any Exclusive Content for their own business purposes relating to the promotion of the Site, the Exclusive Content and their distribution programs, and promote the licensing of Exclusive Content (including, without limitation, the use of the Exclusive Content and the Supplier's registered and unregistered trademarks for marketing, sales and promotional efforts whether on the Site or through third parties). The Supplier agrees that napolstockimage shall have exclusive rights to design marketing literature for the Exclusive Content, at its own expense, and the Supplier agrees to cooperate in that regard. No compensation shall be due to the Supplier for use of Exclusive Content for such business purposes.

Exclusive Content may be included in one or more current or future content collections (“Collections”) made available for licensing or distribution by napolstockimage or third party distributors (each a “Distribution Partner”). Your Exclusive Content may be made available for licensing through a lower price tier royalty free Collection of a Distribution Partner only if you opt in to the “Partner Program” category or other applicable indicator under the preferences panel of your account profile on the Site. Unless otherwise provided for in the upload process or on the Site, your Exclusive Content may be made available for licensing through a similar or higher price tier Collection of a Distribution Partner as may be determined by napolstockimage from time to time upon notice to you either by posting notice on the Site or otherwise. The price tier of a Collection shall be determined by napolstockimage, acting reasonably, taking in to consideration the average comparable pricing on the Site. For all Exclusive Content that moves into another Collection, the royalties paid to you shall be as set out in the Rate Schedule (defined below). The price tier of a Collection shall be subject to promotions and varying discounts from time to time.

The Parties agree that all rights, including title and copyright, in and to the Exclusive Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to napolstockimage or any third party except as provided in this Agreement.

napolstockimage and its Distribution Partners may offer license models through an application program interface (API) or other utility that will make Exclusive Content available for use by clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be determined according to: (a) the ratio of the number of individual items of your Exclusive Content to the total number of individual items of content licensed together; or (b) in napolstockimage’s discretion, the relative value of your individual items of Exclusive Content compared to all other content licensed together with it.

The Supplier acknowledges that napolstockimage prohibits any Exclusive Content, Descriptive Information or any other material that infringes on any Patent, Trademark, Copyright, Trade secret, Right to Privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.

By uploading Exclusive Content, you are warranting that you own all proprietary rights, including copyright, in and to the Exclusive Content with full power to grant the rights contemplated in this Agreement, and that you are not making any of the Exclusive Content available to or through any other distributor, website or other marketing, distribution, sale or licensing venue of any kind not specifically permitted herein. In addition, unless the Exclusive Content is identified as ‘for editorial use’ in the manner and form prescribed by napolstockimage, to the extent that the Exclusive Content contains images of people or persons, you represent and warrant that you have obtained as part of the descriptive Information a valid and binding model release from all required parties in substantially the same form as model release that will permit the uses for such Exclusive Content contemplated in this Agreement and that you will keep the original release and provide a copy to napolstockimage if requested. You also warrant that where required by applicable law, you have also obtained a valid and binding release in substantially the same form as property release relating to identifiable property contained in the Exclusive Content that might sensibly lead to the identity of or be required by the owner of such property to permit the broad uses, including commercial use, of Accepted Content by napolstockimage and its Distribution Partners’ customers. Where the Exclusive Content is identified as ‘for editorial use’ the Supplier represents and warrants that the Exclusive Content has not been manipulated, modified or processed in any 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.”

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