Copyright is the ownership of artistic expression in the form of writing, images, sound, three-dimensional objects, or a computer program in a medium discernible by human senses, either directly or through the use of mechanical devices, such as phonographs, televisions, or computers.

U.S. copyright law originated in 1790 in order to protect the tangible expression of an idea.  The idea itself may not be protected from unauthorized appropriation.  When a person takes or makes a picture, he or she creates and owns intellectual property.  Copyright ensures that the creator holds the right to copy, distributes, sell, or create derivatives of the original.  The creator may transfer these rights to a second party and the creator may regain rights after a period of time.

Under the provision of the 1976 Federal Copyright Act, copyright automatically becomes the property of the creator from the time of creation to 50 years beyond his life.  The law applies to works created prior to January 1, 1978, except when the work was already in the public domain or copyrighted under the old law.  The copyright act of 1909 provided that a copyright was valid for 28 years and was renewable for 28 years, plus one extension of 19 years for a maximum of 75 years from publication.  When a copyright owner is a corporation, business, or employer, the protection continues for the lesser of:  75 years after publication or 100 years following creation.  After that time the work enters the public domain and may be reproduced by anyone without payment to the copyright owner.

The Copyright Act was revised in 1976.  The revised act became effective in 1978 at which time tangible creative work became protected by copyright without formalities.  Copyright originates when the work is created.

The United States joined the Berne Convention in 1989.  The Berne Convention is the international treaty which governs copyright law.  One treaty requirement imposed on all signatories is conformity to common legal principles.  A basic element is the prohibition of any impediments to copyright protection for authors and artists.  In order to conform U.S. copyright law with the Berne requirements, the notice requirement were made optional, not mandatory.  Although copyright law requires depositing copies of copyrighted works with the Library of Congress, the deposit is not a condition to copyright protection.  The author of a work obtains copyright protection when the work is fixed in a tangible medium.  U.S. copyright law now recognizes the moral rights of artists and authors to prevent the aesthetic corruption or destruction of their works.  Although moral rights has a lengthy history in Europe, it is less common in the U.S.
       
Legal Risks
Significant risks arise when images and other types of content are used because of the possible existence of a copyright owner.  Each time an image is digitized, placed on a CD, or a work is published which incorporates the image, it may constitute copyright infringement.  As the publication grows older, it becomes more likely that it is in the public domain and the risk of violation is reduced.  There were formalities in the prior copyright act through which material inadvertently entered the public domain so there is a broader base of older material.  There are risks in using old work.  Evaluating the risk involves knowledge of the copyright rules, and practical experience.

For example, assume that a person wishes to use a painting by an international painter.  If the painter died within the last 70 years, his works may still be protected by copyright law.  A person who made a photographic reproduction of the painting may claim an independent copyright of such a photograph.  This copyright may coexist with the underlying copyright of the painting.  A person who digitizes the photograph may claim another copyright.  Another person who uses the image in a CD-ROM may claim copyright.  All rights holders need permission from the underlying copyright holders.  In other words, there is a multi-tiered structure which should be secured before a product is distributed and sold without infringing laws in any countries in any part of the world.  CDROM’s give rise to challenges due to the variety of content.

A good faith attempt should be made to identify each copyright holder.  In certain cases, it will be impossible to discover all holders.  Material from public domain sources should be double checked.  It is important to obtain and review documentation of a supplying agency's policies.  As a result of these requirements, some multimedia companies may adopt the safest approach by creating all content internally and avoiding popular sources.

Use of Copyrighted Material Without Permission
No person has the right to use another person's copyrighted material without permission.  There are two circumstances in which a person may use content without permission.  First, a person may use content if it is not protected by copyright because the material is in the public domain.  Second, a person may use content if it falls into cases permitted under the First Amendment which guarantees freedom of expression under the fair use doctrine.
If a person copies a recognizable image or a part of an image which an artist has created and copyrighted and fails to make a good-faith attempt to obtain permission from the artist, the person may be liable for damages to the artist.  In certain instances when releases and permissions may be impossible to obtain.  For example, there are occasions when copyright owners cannot be located or when copyright is unknown or ambiguous.

Public Domain
Works in the public domain include:
Works where copyright protection has either expired or been lost;
Works prepared by an officer or employee of the U.S. government as part of the person's official duties.
Prior to 1989, however, a work could have come into the public domain as follows:
For works first published in the U.S. prior to January 1, 1978, failure to place proper copyright notice on the work and failure to comply with the registration and deposit requirements;
For works first published in the U.S. prior to between January 1, 1978 and February 28, 1989, failure to place proper copyright notice on the work that was not properly cured;
For works first published in the U.S. prior to January 1, 1964, failure to renew the copyright at the expiration of the first 28-year term.

Determining whether or not a work is protected by copyright may be complex.  For works first published prior to January 1, 1978, the lack of a copyright registration may indicate that the work is in the public domain.  For works published after that date, the lack of a copyright registration is not decisive.  A copyright search should be performed by the copyright office or a private organization.  The existence of a copyright registration will determine when the work comes into the public domain.

Even if a work is clearly in the public domain, it does not necessarily mean that a person may use the work.  Other rights, including the right of publicity restricting the use of an individual's persona for commercial purposes, may prevent the use of such materials.  Works in the public domain may contain elements that are still subject to copyright protection.  For example, although a motion picture which is in public domain due to a failure to properly renew a copyright registration, its script may be protected by copyright.  The owner of the copyright in the script may control exploitation of the film as a derivative work.

The United States under international treaty has agreed that a foreign owner of certain foreign works which came into the public domain in the U.S. due to a failure to comply with a technical requirement of United States copyright law, is entitled to restore copyright in such works which makes it difficult to know if a work is in the public domain.

Fair Use
Fair use limits the exclusive rights granted to the author and permits the use of copyrighted material without permission in certain limited circumstances, such as satire and parody, critical commentary, and education.  There are four factors commonly referred to in fair use cases:

What is the purpose and character of the use?  Is the use of a commercial nature, or is it for non-profit educational purposes?

What is the nature of the copyrighted work?  Is the copyrighted work published or unpublished?  Is it fact or fiction?  Is it informational or entertainment oriented?  Is the work available or out of print?

What is the amount and substantiality of the portion used in relation to the copyrighted work as a whole?

What is the effect of the use upon the potential market or value of the copyrighted work?
Releases may not be required if the image is used in a manner defined as "fair use."  Such usage may includes criticism, news reporting, teaching, scholarship, or research. 

Factors determining whether the use made of a work in a given case is a fair use include the following:

The purpose and character of the usage, including whether such use is of a commercial nature or is for non-profit or educational purposes.
The nature of the copyrighted work.
The amount and materiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use upon the potential market for which the image was intended or the value of the copyrighted work

Under current law, copyright vests in the author at the time the work is created and fixed in a tangible medium.  The author is the person who actually creates the work, with two exceptions:
A work created by an employee within the scope of employment, in which case the employer is deemed the author.
A work created as a work-made-for-hire pursuant to a written agreement if it falls into one of nine specific categories:  contribution to a collective work; part of a motion picture or other audio/visual work; translation; supplementary work; compilation; atlas; instructional text; test; or, answer material, in which case the party that hired the creator is deemed the author for copyright purposes.

Bundle of Rights         
Copyright is a bundle of rights.  It is really a bundle of rights that are divisible and can be dealt with separately.  Thus, copyright law grants to the author of a work the exclusive right to:

Reproduce the work
Prepare derivative works
Distribute copies of the work
Perform the work publicly
Display the work publicly
Authorize others to do any of the above

In addition, the author has the exclusive right to control the first publication of the work, publication being defined as the distribution of copies by sale or other transfer of ownership.
Fair use limits the exclusive rights granted to the author and permits the use of copyrighted material without permission in certain limited circumstances, such as satire and parody, critical commentary, and education.  There are four factors commonly referred to in fair use cases:

What is the purpose and character of the use?  Is the use of a commercial nature, or is it for non-profit educational purposes?

What is the nature of the copyrighted work?  Is the copyrighted work published or unpublished?  Is it fact or fiction?  Is it informational or entertainment oriented?  Is the work available or out of print?

What is the amount and substantiality of the portion used in relation to the copyrighted work as a whole?

What is the effect of the use upon the potential market or value of the copyrighted work?
Releases may not be required if the image is used in a manner defined as "fair use."  Such usage may includes criticism, news reporting, teaching, scholarship, or research. 

Factors determining whether the use made of a work in a given case is a fair use include the following:
The purpose and character of the usage, including whether such use is of a commercial nature or is for non-profit or educational purposes.
The nature of the copyrighted work.
The amount and materiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use upon the potential market for which the image was intended or the value of the copyrighted work

Vesting Rights
Under current law, copyright vests in the author at the time the work is created and fixed in a tangible medium.  The author is the person who actually creates the work, with two exceptions:
A work created by an employee within the scope of employment, in which case the employer is deemed the author.
A work created as a work-made-for-hire pursuant to a written agreement if it falls into one of nine specific categories:  contribution to a collective work; part of a motion picture or other audio/visual work; translation; supplementary work; compilation; atlas; instructional text; test; or, answer material, in which case the party that hired the creator is deemed the author for copyright purposes.

Copyright is a bundle of rights.  It is really a bundle of rights that are divisible and can be dealt with separately.  Thus, copyright law grants to the author of a work the exclusive right to:
Reproduce the work
Prepare derivative works
Distribute copies of the work
Perform the work publicly
Display the work publicly

Authorize others to do any of the above
In addition, the author has the exclusive right to control the first publication of the work, publication being defined as the distribution of copies by sale or other transfer of ownership.     If two or more persons create a single copyrightable work, they are deemed to be joint copyright holders, and either one has the hot (in the absence of an agreement to the contrary) to exploit that work.  This is subject only to an obligation to account to the other jont copyright holders for revenue derived from such work.  In such cases, a collaboration agreement is needed to control the management and exploitation of the joint work.

The term of copyright protection has varied dramatically over the years.  Today, copyright protection runs for the fife of the author plus 50 years, or in the case of an anonymous or pseudonymous author, such as a corporation, 75 years from publication, but not more than 100 years from creation.

In the case of an author who is an identifiable natural person (and not anonymous or pseudonymous), copyright is automatically renewed after 28 years; but, if a voluntary renewal registration is filed timely, then all derivative uses pursuant to pre-existing licenses will terminate unless the author's successors approve such use.

Editorial Usage
When images are used for editorial purposes, clearances may be less critical.  Editorial use involves using an image to depict a newsworthy event or issue involving public interest.  However, the distinction between editorial and commercial or advertising usage may be crossed inadvertently.  An image appearing on the cover of a magazine may be considered advertising in which case advertising rules apply.  Model or property releases must be obtained to obtain the right to use the image for commercial purposes.  If the image depicts a minor, model releases are required, even if the image is used editorially.  Any image of a private individual which has libelous content or which misrepresents a person may permit the depicted person to bring a damage action.

The Right of Publicity
The right of publicity is the right to protect the use of one's personality or persona for commercial purposes.  The right of publicity protects the use of a celebrity's name, voice, signature, photograph, or likeness against unauthorized commercial exploitation.  In an increasing number of states, a celebrity's right of publicity is protected even after death. There are many cases which have reviewed the right of publicity.  Cases have reviewed the use of a celebrity’s lookalike or singing style in advertisements which suggested the endorsement of the product by the celebrity.

Rights of Privacy
There are cases when a special release should be obtained for people, places, or things depicted in images, depending upon the nature of the project.  However, there is no universal rule for determining when a release is required.  For example, use of a picture of a celebrity who profits from his celebrity status requires permission from that celebrity or from his representative.  On the other hand, the use of an image of a politician who is a public figure may not require a special release.  It is essential to obtain clearances which may involve a lengthy process.  There are various organizations which specialize in obtaining clearances.

Advertising         
Releases for images showing discernible people, places, or things are required when the image will be used for commercial or advertising purposes.  Exceptions include images in the public domain.  Pictures for which copyright has expired or pictures taken on behalf of the United States government are in the public domain.  Such pictures are subject to appropriation by any person, however certain U.S. government pictures may be subject to commercial restrictions.

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