Copyright Laws & What It Means to Photographers
Before 1979, copyright lasted 56 years. Now, our lawmakers have decided that every individual and corporation has the exclusive right to 95 years of copyright protection of their creative output. Why is this important to photographers?
The implications for photographers who want to license their work for payment may appear to be promising. We defend our rights to license our work and the longer our rights endure, the longer we can enjoy them.
But corporations are the major benefactors of a law that extends the protection of their photographs and other images, because it enforces the endurance of the copyright for the probable life of the corporation. And the creative work can safely become a part of the corporation’s identity.
When corporations offer contracts based on work made for hire, which transfer all rights to them, they are demanding 95 years of exclusive copyright protection, essentially stripping photographers of the right to derive licensing income from their work. This is why photographers’ professional organizations adamantly oppose work made for hire contracts. Why shouldn’t photographers enjoy the same rights as the corporations who use their services?
When Thomas Jefferson considered a law to protect the rights of people who create original works, he was reluctant to make it a part of the Constitution. Ultimately he relented and wrote the following in Article One, Section 8, Clause 8: “[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” In fact, Jefferson wanted ideas to pass immediately into the hands of the public because he felt that fundamentally they were the property of everyone.
But he was persuaded that new ideas should pass to the public only after twenty years of exclusive use by the creators. He thought that for twenty years inventors and writers could own the rights to works, but that would be enough time for them to exploit their rights. And this provision should give sufficient encouragement for anyone to create new inventions or writings, but it would also establish the right of the public in 1787 to enjoy the use of these works.
By 1987, the duration of copyright, had more than quadrupled, with protection surviving after the death of the creator.
Most of us may rarely have need of more than 20 years to exploit our photographs, their ephemeral value declining long before. But icons like Mickey Mouse and Spider Man need protection for as long as possible. Their owners lead the way in extending copyright protection.
The notion of public domain, or public property, still persists, but its effect on copyright has been diluted. Although it has placed many important creative works made before approximately 1913 into the public’s hands, it no longer provides the public access to works of more recent vintage. And without it, few people can afford to license, if the works are made available at all, many of the important iconic images from the 20th Century.
Maybe we should reconsider the opinion Jefferson ultimately voiced, that 20 years is sufficient time for the creator to profit from any creation. For photographers, this might preclude most of the work made for hire contracts, leaving us with the right to profit from our pictures. And it would encourage us to make new photographs, constantly inspired by the creative output of our peers.
When a patent lasts only 20 years before it becomes available to anyone who wishes to exploit it and a trademark must be renewed every 10 years to remain viable, we see that copyright may be one of the most valuable and enduring rights available to photographers, and one that may be well worth protecting, but not at the expense of transferring work to the public domain in a reasonable time.
(An excellent refresher on copyright can be found at https://www.copyright.gov/circs/circ1.pdf. )