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In the United States, copyright automatically attaches to almost every work, including photographs, the moment the work is created. The law automatically grants copyright privileges to the creator or author of any composition, work, or collection that is, in the words of the U.S. Copyright Act, “fixed in a tangible medium.” This language is widely interpreted to include both digital and hard copy photographs and negatives. Accordingly, there is nothing that a photographer needs to do to copyright a photograph; once he takes it, the copyright in it attaches to him, at least in the United States. The U.S. Copyright Office encourages formal registration, however, which is easily procured and can grant many more rights than an automatic copyright alone.
Registration acts as a way of verifying that the photograph is original, and that rights do, in fact, belong to the applicant. When a photograph is registered for copyright, a public record is made of its existence and its creator. If the photo is ever used by another person, or if someone else ever claims to be the rightful owner, the copyright registration is evidence that can be used in a copyright infringement lawsuit. Registration also gives the registrant a chance to collect significantly more damages in an infringement suit than he could if the work were unregistered. Usually only the photographer or, in some cases, the photographer’s employer, can register to copyright a photograph.
It is important to note that owning a photograph is different from owning the rights to a photograph, and ownership is not enough to copyright a photograph. The copyright privileges that attach to photographs protect the photos’ underlying creativity and originality, which is an intellectual property right distinct from ownership. A wedding photographer, for instance, owns the copyright to and can register all photos taken at a wedding. The bride and groom may receive a limited copyright release to use and reproduce the pictures, but they generally do not own the copyright and would not be eligible to register any of the photos for copyright protection.
Once it is established that an applicant owns the intellectual property rights to the photo, registering that photo for copyright protection is fairly simple. The applicant must first fill out an application form, which is available in hard copy from the U.S. Copyright Office in Washington, D.C., or online at the Copyright Office’s website. The applicant must attach a copy of the photograph, as well as information about when the photo was taken and the circumstances of its creation. A copyright officer will evaluate the application and, if approved, will issue a certificate of registration.
Even though photos, particularly digital images, are commonly used and distributed worldwide, most of the time one need only copyright a photograph in one country. Copyright laws vary from country to country, and the requirements for registration are different depending on the location. Many countries have made it easier to enforce copyrights internationally by signing the Berne Convention for the Protection of Literary and Artistic Works, a treaty that allows copyright owners equal treatment for their rights across borders.
As of 2010, there were 164 countries signed on to the Berne Convention, including the United States, Canada, Australia, and all European Union countries. The convention requires that any copyright recognized by one signatory country be recognized in all others. In practice, this means that if one were to copyright a photograph in the United States, either by taking the photo there and gaining an automatic copyright or by formally registering it there, one could enforce those rights against misuse of the photo in any signatory country. For ease of enforcement, most countries recommend that content creators formally register their works with their home governments, even if copyright privileges automatically attach.
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