Myths and Misperceptions

I’ve read in an essay about that I could save money by just putting a copy of my work in an envelope, mail it to myself and then keep the unopened envelope.  She called this the “poor man’s copyright” and said that it substitutes for registration.

This is one of the leading copyright myths.  The poor man’s copyright does not exist. The unopened envelope does not meet the law’s requirements for effective registration.

I am a photographer, so if I own copyright in my photograph, can I do anything with my photograph?

Not necessarily. You do own your copyright but you may not own all the rights to the image.  This misunderstanding causes a lot of problems for photographers. Since photographs usually depict reality they may contain what are called “underlying” rights that may belong to someone else.  Underlying rights can include trademarks, another copyright or a right to privacy or publicity for anyone visible in the photograph.  Underlying rights are problematic if you want to license your work for commercial purposes. For example, if you photograph someone carrying a Gucci® bag, you don’t own the right to reproduce the trademarked logo on the bag.  If someone in the photo has a visible tattoo, you might be violating the reproduction rights of the tatoo artist.   If there is a clearly visible photograph, painting or sculpture in your photograph, you may be infringing that copyright.  If you have people in your photographs you may be violating their rights to privacy or publicity unless you have a signed model’s release.

This is really a problem if you have unknowingly signed a contract in which you have guaranteed, “warranted” (just a fancy way of saying promise) or agreed that you “own all the rights” to the photograph and/or that you have cleared all the rights to the photograph and you accept all liability for any infringements. Again, read what you sign and if you see this language in a contract, be careful.

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