Reproduction of Photographs: What is legal?
Do you remember in 2nd grade when Susie copied your cool new high top converse all stars and your side pony tail? Remember when your Mom said that imitation is the sincerest form of flattery? Well, that may be true, but don’t forget about this little thing called copyright!
Here is the scenario:
You take a lot of scenic photos of your area and you display them in a local gallery. An artist spotted one of your photos and would love to reproduce it as a painting. Thankfully the artist contacted you to ask for permission and has offered a percentage of the sale price of the work. What are your options?
Let’s start with what your rights are regarding the photograph in question. The instant your photograph was taken you became the copyright holder for the image. You do not have to register the photograph with the U.S. Copyright Office for copyright protections to take hold, although registration can give you additional benefits. The copyright is immediate.
So, now we know you are the copyright holder of the photograph. What does that mean? It means that as copyright holder you control ALL future uses of that work, including any reproduction. For our scenario this means that you control what the painter can or cannot do in regards to the photograph. The painter cannot paint your photo until you have given permission. If you choose to give permission the painted reproduction becomes what is known as a ‘derivative work’.
A derivative work is any work that is based on a work that is already in existence (a work that is already copyrighted). This includes such reproduced works as:
- A drawing based on a sculpture
- A movie based on a book
- A book translated from one language to another
- A painting based on a photographs
All derivative works must be created with the permission of the copyright owner of the piece of work that it is based on. For example, the creator of a sculpture must give permission to an artist to make a drawing of the sculpture. If the creator of the derivative work does not have permission, then it is likely copyright infringement.
For our scenario this means that a painting based on your photograph would be a derivative work. Since the painting would be based on your photograph, you hold the power to allow or deny the production of the painting.
Copyright For the Derivative Work
The copyright of a derivative work only covers only what is different in the newer work from the original work (the older work). This more ‘limited’ copyright belongs to the creator of the newer work. The original copyright holder still retains all rights to the original work and the creator of the newer work may only create a work based on whatever was agreed upon with the copyright owner of the older work. Further, the copyright of the newer work is only in existence as long as the copyright of the original work is in existence.
In our scenario this means that the painter only has the right to do exactly what you have agreed to allow him or her to do. Even if you give permission for a reproduction, you will retain the original copyright to the photograph and the painter holds no right to your photograph. The painter will then hold the copyright of the difference between the old work and the new work for the length of the copyright of the original work.
The End Story
The choice is yours. You have the right to say no to any reproduction because you are the owner of the original copyright. In the alternative, you have the right say yes to a reproduction and under your terms. What you choose to allow to happen in regards to your photograph and your copyright is solely up to you.