Photo by Artur Matosyan on Unsplash

Copyright Law and Faithful Reproductions in the United States of America

Let’s be clear, I’m not a lawyer. (So if you need legal advice, go find one!)

However, the nature of the work that I do requires me to be extremely familiar with public domain content and copyright law.

Ever since I fell in love with graphic design and image manipulation at twelve years old, I was taught about the importance of copyrights and the potentially dire consequences of violating them.

Let me tell you, you do not want to be sued for thousands — if not hundreds of thousands — of dollars because you accidentally infringed on someone else’s copyright.

Back then, what I thought was a very simple idea actually turned out to be a very complicated and ever changing subject, with laws that vary from country to country.

To top it all off, at sixteen, my high school A/V (Audio/Video) teacher taught me about a relatively new non-profit organization that was making media available free for public use; you may heard of it — it’s called Creative Commons. Though, even they had some confusing restrictions.

After years of self study, I began to become more and more familiar with the mess that is copyright law. Right now, I feel confident in my own ability to determine if I am in violation of someone else’s copyright.

However, I still see many others in clear violation of the law. The problem is so rampant that I really believe it comes from a lack of education.

So let’s break this down and learn a little.

United States Copyrights

In the US, an author of a work is automatically granted copyright. It doesn’t matter if you make paintings, write books, or carve sculptures. Once you’ve created an original piece, you are immediately granted copyright.

It’s important to know that copyrights do expire, and the law on this has been changed a few times. There’s a lot of little details to that, but I’m just going to keep it simple for now.

Copyright laws can be divided in to a couple of different categories:

Before 1978

In general, the copyright for works published (with notice) before 1978 expire 95 years after publication.

After 1988

Copyright for works published (with notice) after 1988 expire 70 years after the author’s death. If the work was created by “corporate authorship”, then copyright expires 95 years from the date of publication or 120 years after creation, whichever comes first.

Creative Commons Licenses

Creative Commons is a non-profit organization that was formed in 2001 by founder, Lawrence Lessig. The organization’s goal is to make it easier to share copyright protected media by providing an easy and standardized way to issue licenses for public use. Creative Commons has six different licenses to choose from, including the CC0 license, which allows a a copyright holder to dedicate their work to the public domain.

Public Domain Works

Public domain works are almost exactly what they sound like; they are open for the public to use at any time, for any reason. This includes both personal and commercial use.

Most works enter the public domain when their copyright expires. Some works are dedicated to the public domain when their author willingly gives up their rights.

Faithful Reproductions

Faithful reproductions — sometimes referred to as “slavish reproductions” — are reproductions of works that are already in the public domain.

Traditionally this term was used when artists would physically remake a painting or other art form in near identical likeness. You know, like in those cliché movies when con artists try to pull off selling forgeries for millions of dollars.

Today, it doesn’t take nearly as much work. A simple photograph is now enough to be considered a faithful reproduction. That’s because a court case over twenty years ago concluded that exact reproductions of public domain images are not eligible for copyright.

Even so, many photographers and collectors still attempt to gate keep access to these public domain reproductions by enforcing unlawful license fees, and sometimes they even go so far as to threaten law suits over copyrights that they just don’t have. We’re actually hearing about these cases a lot more frequently now because of copyright trolls and a common misunderstanding of copyright law.

Clearing Up the Confusion

As I mentioned earlier, when you create an original work in the United States, you are automatically granted copyright for that work.

For photographers, this means that if you point your camera and click, you own the copyright on the photo that you took. Since you created the image with your camera, it doesn’t matter if it’s a picture of your birthday cake or a picture of Beyoncé — the copyright is yours.

Except when it’s not.

That rule doesn’t apply when the photo is an exact reproduction of a public domain work. So, if you take a picture up close of a painting in a museum — even though you took it with your camera — you do not have copyright on that image, it’s still in the public domain, and anyone can use it.

To obtain copyright on a public domain image, you need to add a sufficient amount of original creative content to it; you need to change it in some way. Only then will you obtain copyright on your new variation of a public domain work.

Inherent Risk

It’s important to know that there is still always an inherent risk in using public domain images. Even if you are sure that you are within your rights to use an image, you can still get sued.

When interviewed for this article by HuffPost, Professor Christopher Sprigman of the University of Virginia Law school had this to say on the matter:

“You can always sue. That’s America.”

And, that’s true.

In the US, you can sue for anything. Even if the party suing knows that the law is not on their side, they can still sue you.

They have incentive to do this too, because even just the threat of a lawsuit is enough to bully people into submission. Lawsuits are costly and most people and businesses can’t afford to pay thousands of dollars in court filing fees and professional legal fees.

Still, there may be ways for you to fight back; so it’s best to consult a lawyer that can help you if you find yourself in a situation like this. Better yet? Consult a lawyer before an issues arises so that you can always be prepared!

References

Oh Hey, It’s Ray is a real estate investor, entrepreneur, and former real estate agent. She lives happily with her husband and two children in the Pacific Northwest. See more from Ray at her YouTube channel and on Ohheyitsray.com

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