Legal Question in Technology Law in Pennsylvania

What makes a posted photo copyrighted?

One person posted a picture of a celebrity that she took on a public chat forum. Another person then used this picture on the same forum without asking first. What makes a publicly posted picture copyrighted? Other than being impolite, did the second person break any copyright laws, or any laws for that matter?

Asked on 1/29/04, 7:49 pm

1 Answer from Attorneys

Gerry Elman Elman Technology Law, P.C.

Re: What makes a posted photo copyrighted?

Good question. U.S. copyright law provides that a work of authorship is automatically copyrighted as soon as it is "fixed in a tangible medium of expression." For a photograph, it is protected when the image that the photographer has selected to display is printed on paper or saved onto a computer drive.

An amendment to the copyright law that took effect in 1989 eliminated the need to place a

"copyright notice" on or with the picture, although it gives incentives to continue to do so.

The bad news is that one should assume that any image recently created by somebody else is protected by copyright. Whether the owner of the copyright wishes to ENFORCE the copyright or alternatively would LICENSE the copyright or waive enforcement fo rfree is another question.

In some circumstances, a user can reasonably infer that the way the copyrighted image has been made available by the author includes a "license" to republish it.

In other circumstances, a user could assert that the nature of the use was either so minimal or so transformative that the "fair use" exception to copyright protection applies:

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Answered on 1/29/04, 8:12 pm

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