Copyright pop quiz
What’s the difference between the following two photographs?
Here’s the first one:
And here’s the second:
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have to have a copyright notice at all: “Copyright notice is optional for works published on or after March 1, 1989, unpublished works, and foreign works.”3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
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 4 (https://www.copyright.gov : accessed 10 Mar 2020). ↩
- 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). ↩
- U.S. Copyright Office, Circular 3: Copyright Notice, PDF version at p. 1 (https://www.copyright.gov : accessed 10 Mar 2020). ↩
- Yeah, we all still love that commercial, don’t we? ↩
Thank you for this. I practice in the area of IP (Patent, TM, Copyright, Trade Secrets) among other complex civil areas and this is an important point that most people misunderstand about the Copyright Act.
I got it right!
GOOD!!!
I once owned a genealogy books on CD business, and sold a book on Tennessee published in 1892. I was rudely told by another person who had put out the same book on CD that I “stole” his copyright because he published it first. I politely informed him of the concept of “Public Domain” and he sent me a nasty reply calling me all sorts of names, including “know-it-all.” I replied politely that apparently I knew more about copyright than HE did.
So many people are SO ignorant of copyright laws. Thank you for setting them straight.
🙂
So what do you say to someone who takes an ancestor’s biography off of Find A Grave and publishes it in their book? They cite Find A Grave (thinking that makes it okay). Send them some links to your blogs? They can’t remove it out of their hard copies, but they can remove it out of their e-copies (and I’m not related to them at all – and DNA proved it)!
If you’re the author of the biography, you send then a cease-and-desist letter.
Speaking of Find a Grave, I’ve seen people post an obituary, presumably taken from a newspaper, onto the Find a Grave site for a particular person. Is this OK?
Not unless the person posting it is the person who wrote it. If it’s anyone else, and permission has not been given, it’s a copyright violation.
I have taken pictures where pictures in the background might be under copyright. Would those pictures in the background prevent me from legally using the pictures I took in one of my publications?
Only possible answer is: it depends. In general, the incidental depiction of a copyrighted item in a photo where the clear focus is something else isn’t going to get you into trouble. There’s a good review of this issue on the WIPO website.
Judy, excellent brief description of basic copyright law. Oh, and a gorgeous photo!
Surely US copyright laws are only relevant in USA. Does any of this apply in Europe or in the UK? I believe copyright laws are different over here.
The principle of automatic creation of copyright exists worldwide because of international treaties — and it’s one of those treaties that gives rise to this.
Excellent info Judy. We need always be aware.