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Copyright Protection Extends to Photography


When we create a work of art or a piece of literature, we generally know that it has some kind of copyright protection. It is (presumably) our own creation, and only we are allowed to profit off of our intellectual works.

But photography seems like it should be different. After all, you didn’t create the tree or the building or the person that you are photographing. You may think that photographing is just memorializing something that already exists, and thus, there is no copyright protection.

Protection for Photography

But that thinking would be wrong. In fact, photography is considered artwork, and to some extent, copyright protection is created the minute that a picture is taken. You don’t have to register the copyright, although additional damages are available when you register a copyright than when you don’t.

And in fact, if you think of some more famous pictures, such as the ones memorializing American history or world affairs, it becomes apparent that the intellectual property rights in photography can be big business.

Your Likeness

But what if someone takes a picture of you? Does that picture belong to just the photographer, or do you, as the subject of the picture, have the right to sell, distribute or do what you want with the picture?

A number of celebrities are running into this problem, when they repost pictures of themselves on social media. Celebrities often find themselves sued, when they screen grab or take pictures that were taken by paparazzi, and redistribute them (although most are posting them for social purposes, not to make money off of them).

Many of these celebrities find it hard to believe that they have to pay money to photographers, for the mere act of reposting pictures of themselves. But the pictures get copyright protection, which protects the artist (the photographer)—even if the person “stealing” the property is actually the subject of the picture.

Exceptions May Apply

It should be noted that these are celebrities—to some extent, they understand that their likeness can be used for public purposes. And, in many cases, these are pictures taken on public streets and in plain view (even though they are often taken without the celebrity’s approval or permission). A photographer likely could not make money off pictures taken in private or in secret.

Copyright is also different from the right to publicize, or make money off someone’s likeness. If someone used a picture of you, and put it on their product that made a million dollars, and did so without your permission, you would likely have a claim for distribution and misappropriation of your likeness without your permission. However, that is a different claim than copyright violation.

Additionally, a photographer could not take a picture of already copyrighted material, and sell it. For example, a photographer’s picture of Darth Vader or Batman or the Simpsons, would actually infringe on already existing copyrights by the owners of those characters’ likenesses.

Questions about copyright protection, or other intellectual property matters? Call the West Palm Beach copyright litigation lawyers at Pike & Lustig, LLP, at 561-291-8298.




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