Copyright pop quiz

What’s the difference between the following two photographs?

Here’s the first one:

Seagull

And here’s the second:

Seagull

Of course, all you eagle-eyed researchers noted the fact that there isn’t any copyright notice on the first one and there is one plainly visible on the second.

But what’s the difference between them? If you wanted to use one of these in a blog post or a genealogy presentation or a family history, what difference does the notice make?

The answer, of course, is there’s absolutely no legal difference whatsoever between photo version 1 and photo version 2. Both of them are copyrighted images. Both of them require The Legal Genealogist‘s permission before anyone else can use them, copy them, distribute them, display them.

Copyright is automatic. It begins the instant the work is created: “Copyright exists automatically in an original work of authorship once it is fixed in a tangible medium”1 — and that includes a digital format like a digital camera image or a computer file.2

The work doesn’t have to have a copyright notice at all: “Copyright notice is optional for works published on or after March 1, 1989, unpublished works, and foreign works.”3

In other words, the very second that I pushed the shutter button on the camera yesterday and took that photo, I owned the copyright on it, and that’s true whether I put a copyright notice on it or not.

So don’t go thinking that anything without a copyright notice is free for the taking.

That’s not how this works.

That’s not how any of this works.4

And it’s our job to know how it does work so we can respect the rights of copyright owners — and stay out of trouble.

Because the difference between those two photos under the law is… there isn’t any.


Cite/link to this post: Judy G. Russell, “And the difference is…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 10 Mar 2020).

SOURCES

  1. U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 4 (https://www.copyright.gov : accessed 10 Mar 2020).
  2. See generally §305, “The Fixation Requirement,” Compendium of U.S. Copyright Office Practices, 3d edition, U.S. Copyright Office, PDF at Chapter 300: 3 (https://www.copyright.gov : accessed 10 Mar 2020).
  3. U.S. Copyright Office, Circular 3: Copyright Notice, PDF version at p. 1 (https://www.copyright.gov : accessed 10 Mar 2020).
  4. Yeah, we all still love that commercial, don’t we?
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