Digital Silver Imaging

Photography and artwork are almost always protected by copyright laws. When we receive files for printing, we print the image in good faith and assume that the copyright for that image is held by the person submitting the image. However, if we believe that there is a question of ownership or permission we will ask for clarification. We will not print an image if we believe there is issue with copyright ownership.

To help better understand issues of copyright we spoke with Andrew D. (“Drew”) Epstein, a Boston based lawyer that specializes in copyright law.

Q. What is copyright and what does it do?

A. Virtually all creative works, photography, art, music, writing, computer software, produced since January 1, 1978, and many before, are protected by copyright.

Copyright is not a single right, but a bundle of rights that is controlled by the creator of the work. Generally the owner of copyright to the work has  the exclusive power to use, reproduce, or display their work(s).

Q. If I find an image on the internet or in a magazine can I make a print for myself, for my own personal use?

A. The answer is clearly NO. The publication of a work on the Internet or in a magazine does not give anyone the right to  reproduce the work without the artist’s permission.

A copyright owner has the exclusive right to do or authorize others to do the following with copyrighted works:

·         to reproduce the copyrighted work;
·         to made derivative copies of the work;
·         to distribute copies to the public;
·         to perform literary, musical, dramatic and choreographic works; and
·         to display copyrighted works publicly.

Q. What about the “fair use doctrine?”

A. Under the fair use doctrine, copyrighted works can be used for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use) scholarship or research.  In determining whether a particular use is a fair use in any particular case, you and the courts must consider the following four factors:

(1) The purpose and character of the use, including whether the use is for commercial or for nonprofit education purposes;
(2)  The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work.

Unless permitted under the fair use section of the Copyright Act, the reproduction of copyrighted photographs and artwork even for personal use is copyright infringement.

Q. How long does copyright last?
A. Generally, for works created after January 1, 1978, copyright lasts for the life of the author and for 70 years thereafter.  In case of joint works, the copyright expires 70 years after the death of the surviving joint author.

For anonymous or pseudonymous works, and for works made-for-hire, the copyright endures for 95 years from the year of its first publication, or for a term of 120 years from the year of its creation, whichever expires first.

After 95 years from the year of first publication of a work, or 120 years from the year of its creation, whichever expires first, there is a presumption that the author has been dead for at least 70 years.

For works created before January 1, 1978, which are not published or in the public domain, the rules are complicated and are beyond the scope of this commentary.

To find more information on art in the public domain follow this link.

This was written to be informational and not to be a substitute for competent legal advice.  Please use reason and good sense in reading and using the information herein.  If in doubt, go to a good lawyer for advice. 

Andrew D. (“Drew”) Epstein is a partner in the firm of Barker, Epstein & Loscocco, a full-service Boston, Massachusetts law firm. As an attorney and supporter of the arts, Drew has represented hundreds of photographers, illustrators, design firms, advertising agencies, museums and other individuals and businesses involved in photography, art, illustration, and imaging.

Drew is a member of the Board of Trustees of the Griffin Museum of Photography in Winchester, Massachusetts and has also served as President and Board Member at the Photographic Resource Center at Boston University.

Drew was an adjunct professor at Boston University for six years where he taught Legal Issues for Arts Administrators in the graduate school Arts Administration Program. Drew has been a frequent guest lecturer to academic, professional, business and legal groups on copyright and trademark law, art law and general business law. He writes frequently on copyright law, contract law and legal and business issues for photographers and artists. Drew was awarded the first annual Attorney of the Year Award by the Massachusetts Volunteer Lawyers for the Arts.