The Dos and Don’ts of Intellectual Property and Copyright

The Dos and Don’ts of Intellectual Property and Copyright

Copyright and intellectual property laws are not always the most glamorous topics of discussion, but understanding how they work is the cornerstone to positive experiences when creating your own intellectual property, or working with someone else. Learning these rules is important for anyone going into business for themselves as a creative professional, in order to protect themselves and stick up for others. My unofficial rules of intellectual property when working with someone you trust are: 1) don’t steal, 2) be nice, 3) educate yourself, and 4) be able to learn from a mistake. Knowledge is important!

1. Copyright/ownership of intellectual property belongs to the creator by default.

kelly-peloza-photo-pancakes
Hot damn, what a sweet stack of ‘jacks! Since I made this photo, I can do whatever I want with it, and reproduce it anywhere I want. Can you? Maybe!

Thanks, U.S. Copyright Law! Paying a photographer for creating images does not equate to buying the copyright, unless the agreement explicitly states that, in the case of a work-made-for-hire contract*, or if the photographer is your employee**. If you’re hiring a photographer for a short-term job or project with a W-9, they are an independent contractor or you’re engaging with their incorporated business (LLC, S-Corp, etc).

When you pay any creative professional for their services, you are paying a creative fee that covers their value and cost of operations, and a license fee, which covers the term and scope of the usage. This is the same reason you have to pay each time if you want to buy a CD, download a song from iTunes, and see a band in concert.

*The price should match since you are also buying the right to use, sell, modify, and re-sell the work forever…IP is valuable!

**In which case you are responsible for paying a wage/salary, benefits, unemployment insurance, and all the good stuff associated with employment.

DO

Understand that paying for photography/design/writing is paying for the creation of the work and the license to use it in an agreed-upon way.

DON’T

Assume and say, “I paid for this! I own it and can do whatever I want with it!”

2. Using images outside of the license granted is copyright infringement.

Photography is priced by two factors (neither of which is time): the scope of the job and usage granted.

This guide from A Photo Editor covers photography usage terms comprehensively. If a photographer creates an image for Coca-Cola to use for an ad in a magazine with a circulation of 50 million copies for a term of 1 year, do they also automatically have the right to print the image on a billboard, and use it on their website? No. The photos are then used to advertise to a different market, making the work more valuable, without compensating the photographer for that value. The same principles apply to projects on a smaller scale, but a local Mom and Pop store doesn’t pay as much as Coca-Cola would, because the overall value is lower.

DO

Refer to your contract (which is written for both parties’ benefit) to see what is fair use, and if something is unclear, your photographer or other creative professional would be happy to clarify (I would!).

DON’T

Assume that because your photographer created photos for your website, you can print them in your newsletters, publish an advertisement using the photos, or use them outside of the agreement. If you see value in using the work in another context down the road, contact your photographer and compensate them for that additional value the work is providing your company, or don’t use it.

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This is some common language in a photography licensing agreement.

3. Images on the internet are not up for grabs for commercial purposes, or otherwise.

Saving an image from Google or someone else’s Instagram and uploading it to your business’ Facebook page to encourage your followers to buy your product is profiting off of someone’s intellectual property for your promotional purposes. The exception is using photos with a Creative Commons license, provided you follow the terms of usage.

DO

Hit the share button on Facebook. Add your 2 cents about why you’re sharing the image. Better yet, contact the person and ask for permission, especially if using their photo/logo/graphic is benefiting you or your business, financially or otherwise.

DON’T

Right click, save an image from Facebook and upload it on your own page accompanied with text such as, “Check out this photo of my cupcakes from Kelly Peloza Photo. Doesn’t it look great? Come buy my cupcakes at $3.50 each; we’re open ’til 7!” Or do that and at least chip in on my rent payment with some of your cupcake profits.

red-cat-copyright-kelly-peloza-photo
Photo of a cat by Panther, used under a Creative Commons license. Is it entirely relevant to this post? No. Am I the copyright holder? No. But I used and attributed the image correctly (according to the license in effect on June 9th, 2015).

4. Photo credit Permission ≠ Fair compensation.

I would love to get an MacBook Pro for free and credit Apple every time I use it, but that’s not how the world works! Unfortunately, photo credit has yet to cover my grocery bill, or any bill for that matter. Just because many creative professionals love their line of work doesn’t mean it’s not work. Running a business is 70-80% administrative work, accounting, file management, and marketing, not running around photographing while the cash rolls in. We have the normal costs of running a business to cover, and have to maintain some expensive equipment like cameras, computers capable of working with large image files, hard drives, and backup systems.

DO

Reach out. Communication is key when dealing with someone else’s livelihood and intellectual property.

DON’T

Use a photo without asking for permission or offering compensation, or assure the professional that photo credit or a byline is the equivalent of USD (or another currency).

Wanna use this photo of Mini S’mores Pies to promote your own cupcake pies without permission? “But I gave you credit” is not an appropriate response to the cease and desist letter.

5. When in doubt, do your homework, and be nice.

Copyright and intellectual property can be tricky, and legalese can be incredibly difficult to understand if you don’t deal with it on a daily basis. People are professionals in their field for a reason: I don’t ask my veterinarian about intellectual property laws (unless they have a sweet side gig in the legal field). Everyone makes mistakes (I make those!), so if that happens, or someone calls you out, hear them out and admit your mistake if there was one. Even if you didn’t know you made one until then. However, ignorance is not a good excuse if a Google search or a professional provides cold hard evidence to the contrary. Then…

DO

Add that learning experience to your arsenal of knowledge about intellectual property.

DON’T

Do it again, and again.

I really hate ordering something online, or signing up for a class or workshop, then finding that the product or experience is totally different than I thought. It’s even worse when I go back and read the description and realized I missed a key point. Even if there was no wrongdoing on the company’s part, it’s not an experience I want to relive. Since it’s easy to miss details when dealing with legalese, I try to be as clear as possible when laying out details for my clients. I don’t want to be responsible for giving someone an unexpected experience.

Copyright Law and social media

Unfortunately, Copyright Law isn’t all caught up with the ways of the internet and social media, so some information can be difficult to find, and some not-so-nice things ARE legal. Last week, I was in Austin, Texas for Vida Vegan Con and attended Randi Milgram‘s talk on intellectual property and copyright for bloggers. She did a great job of explaining the “why” of something I’ve heard for many years as a food blogger and cookbook author: you can’t copyright a recipe because it’s a list of ideas (ingredients), not a tangible expression of those ideas.

The “tangible expression” is the unique instructions you write, or the final product you serve or photograph. So while you are free to steal recipes and re-write the instructions, it’s not terribly great etiquette. Erika of Sews Before Bros wrote an excellent recap of Randi’s talk here, which is an essential read for anyone hitting “publish” in a blogging platform.

And social media? When licensing a photo or other work for a magazine newspaper, the readership and circulation is pretty set in stone. With social media, a business can have 200 followers one day, and 200,000 the next if a post or image goes viral. Since Copyright Law isn’t moving along nearly as fast as technology, communication is important when approaching the “what if”s.

Disclaimer

Remember, I’m no lawyer, but I’m happy to elaborate on any point, or answer questions in the comments or via email. Even at 1600 words, this post far from completely covers the main points of copyright. Just don’t steal. The legal penalties can be anywhere from modest to debilitating (but you don’t know what you’re dealing with until you get caught). I’m writing from the perspective of a photographer and small business owner tasked with protecting my intellectual property each day in this crazy digital age. If you have something to add from a different perspective, please weigh in with a comment!

-Kelly

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2 COMMENTS
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    […] note that the following images (like all of my images) are copyrighted, and they have strict copyright protection, so if you’re interested in using one, please […]

  • 2015 Highlights (Non-Food Photography) | Kelly Peloza Photo
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    […] of running a photography business, read a lot of books, and started writing about all that stuff: The Dos and Don’ts of Intellectual Property and Copyright, and 8 reasons you can’t afford a budget […]

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