© Jeanine Michna-Bales and MW Editions, copyright page from the monograph “Standing Together: Inez Milholland’s Final Campaign for Women’s Suffrage” (MW Editions, 2021)

Beyond the Photograph is a Lenscratch Magazine monthly series dedicated to helping photographers grow their artistic practices beyond the camera. Capturing images is just one small part of a photographer’s journey. In this series, we’ll explore the tools, strategies, and best practices that support the broader aspects of a contemporary art career.

Images created through artistic practices are a form of intellectual property. To protect these works and ensure proper usage, copyright protection is essential. This installment outlines how U.S. copyright law applies to photographs, how to register your work, and how to avoid infringement.

© U.S. Copyright Office Website

What the U.S. Copyright Act Says About Images

The United States Copyright Act of 1976, provides the foundation for current copyright protections. Section 101 of the U.S. Copyright Act defines images under the category of “pictorial, graphic, and sculptural works” and defines these works to include:

“two- and three-dimensional works of fine, graphic, and applied art; photographs, prints and art reproductions; maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.”

Photographers, like other artists, are granted the full range of exclusive rights. These rights include the ability to reproduce or republish the image, prepare new images and other works based on the original image, distribute copies of the image by sale, lease, or loan, and publicly display the image. To be created legally and avoid copyright infringement, derivative works must be substantially different from the original and must also be independently eligible for copyright protection.

© U.S. Copyright Office and Library of Congress, Library of Congress blog post about the new class of creative works entering the public domain that were first published in 1929

What is the Lifecycle of Copyright in the U.S.?

For photographs, copyright protection lasts for the life of the photographer plus 70 years. To determine whether a vintage image is in the public domain, check the original publication date. As of now, any work published before 1929 is in the public domain and can be freely used. Each year, new works enter the public domain, expanding the range of available images that are free to use.

Common Copyright Misuses

Despite legal protections, photographs are often misused online, especially on websites, blogs, and social media platforms like Facebook and Instagram. To avoid copyright infringement, secure the proper rights or ensure the usage falls under an exception.

Copyright Exceptions: Fair Use, Creative Commons, and Public Domain

Some limited uses of copyrighted images may fall under “fair use,” which permits limited use of copyrighted material without permission for purposes such as criticism or commentary, news reporting, teaching (e.g., one-time/one-semester use in university course materials or use on platforms like Blackboard), and research. In other cases, an image may be free to use if it is in the public domain, covered by a Creative Commons (CC) license (as long as proper terms and attribution are followed), or the copyright owner has explicitly granted permission. Additional factors to consider are Purpose and Character of the use (nonprofit or commercial gain), Nature of Copyrighted Work (factual or creative, with creative works possibly having stricter guidelines), Amount and Sustainability of Portion Used (excerpt or used in entirety), and Effect on the Potential Market (does usage negatively impact market for original work?). If in doubt, always seek written permission.

Licensing and Usage Agreements

Licensing is the formal process of granting permission to use copyrighted material and applies to a wide range of uses, including publications, websites, advertisements, blogs, and both commercial and non-commercial projects. Licensing agreements should reflect the intended purpose—whether editorial or commercial—and align with the project’s budget. Terms can vary based on factors such as exclusivity, duration, geographic region, industry, and associated fees.

It’s essential to have a written contract that clearly outlines the licensing terms, including whether the license is rights-managed or royalty-free. A rights-managed license typically allows limited use under specific conditions, while a royalty-free license generally permits repeated use after a one-time payment, without additional fees for each use.

Moral Rights for Visual Artists

In addition to economic rights, creators of certain visual works are also entitled to “moral rights” under U.S. copyright law. These include the right to be credited as the creator and the right to object to derogatory modifications of the work. According to Section 101 of the Copyright Act, a work of visual art is defined as “a painting, drawing, print, or sculpture existing in a single copy or in a limited edition of 200 or fewer copies that are signed and consecutively numbered by the author and bear the signature or other identifying mark of the author.” Importantly, works created during employment generally do not qualify as works of visual art.

© U.S. Copyright Office, website page that gives information on how to register photographs

How to Register Your Images with the U.S. Copyright Office

Registering images with U.S. Copyright Office can be done online. The Office offers helpful video tutorials, and for optimal use of the registration portal, Mozilla Firefox is recommended. Works can be submitted individually or as a group (e.g., a photo essay consisting of multiple images), and must be uploaded in JPG, GIF, or TIFF format along with caption information. When starting the registration process, you will need to choose which application to use based on whether the works have been published or not, as the process varies accordingly.

© U.S. Copyright Office, registration portal overview of the registration process for a group of unpublished works

Recent changes in registration procedures require special attention. You can no longer register a “collection” of unpublished works using the “Standard Application.” Instead, you must use the “Group of Unpublished Works” application, which allows for up to 10 images per submission. If your project includes more than 10 unpublished images, multiple applications will be needed. Processing times vary, but online applications generally take about two months—often longer. Plan ahead, particularly if your images will be included in a monograph or other publication. If your images become published while you are waiting on an unpublished registration, you may need to refile under the “published” category.

Mandatory Deposit Requirement

Photographers who self-publish or work with foreign publishers should be aware of the “Mandatory Deposit” requirement. This rule mandates that two copies of the published work be submitted to the Library of Congress within three months of first distribution in the United States. The requirement applies if the work is distributed within the United States regardless of where the publisher is located.

Using Archival Materials in Photo Essays

If your work involves research or long-term photo essays that include images from institutional archives, licensing agreements must be obtained from the institutions that hold the originals. When making such requests, be clear about the full scope of your usage—whether for online presentation (e.g., artist/project websites), printed publications, artist talks, or media coverage. Institutions will provide paperwork, fee quotes, and specific citation formats required for captions, credits, and rights acknowledgments. These agreements can take time to secure, so begin the process early.

© U.S. Copyright Office, web page about Copyright and Artificial Intelligence

AI-Generated Images and Evolving Copyright Law

The intersection of copyright and artificial intelligence (AI) is rapidly becoming an issue. As AI becomes more integrated into creative industries, new legal questions continue to emerge, including whether images generated through AI are independently copyrightable. Several individual artists, along with broader groups, have taken legal action against Midjourney—a research lab focused on AI-generated imagery, Stability AI, and Deviant Art in 2023. The lawsuit, Andersen v. Stability AI, alleges that these companies infringed on the artists’ copyrights by using their works without permission to train AI image generators like Stable Diffusion, which is incorporated into Midjourney’s for-profit product. The artists claim that the AI generators can produce images that mimic their unique artistic styles, potentially harming their livelihoods. Indeed, companies are selling subscriptions based on prompts that will generate images “in the style of [insert photographer/artist’s name here]” without any compensation to the artist whose name is in the prompt. The California judge has allowed the case to move forward and it is currently in the discovery phase. Most recently, Disney and Universal Studios filed a lawsuit against Midjourney—the first instance of major Hollywood studios suing over AI-generated images. These developments highlight the need for ongoing attention to changes in copyright law.

To date, the U.S. Copyright Office has released two parts of their Report on Copyright and Artificial Intelligence—Part 1: Digital Replicas and Part 2: Copyrightability— with Part 3: Generative AI Training in pre-publication status. The final version published in the near future, without any substantive changes expected in the analysis or conclusions. To stay informed, you can sign up for updates from the U.S. Copyright Office via their newsletter or visit the Library of Congress Blogs | Copyright Creativity at Work and click on “artificial intelligence” under the “categories” menu.

Final Thoughts

Copyright law is a critical tool in protecting the rights of photographers and artists. By understanding your rights, obtaining proper permissions, and following registration procedures, you can ensure your work—and the work of others—is used legally and ethically.

Jeanine Michna-Bales

After a successful 20-year career as a creative in advertising, Jeanine Michna-Bales transitioned to become a full-time artist. A visual storyteller working primarily in photography, Michna-Bales (American, b. 1971) explores the profound impact of cornerstone relationships on contemporary society—the connections between individuals, communities, and the land we inhabit. Her work sits at the crossroads of curiosity and knowledge, blending documentary and fine art, past and present, and disciplines like anthropology, sociology, environmentalism, and activism.

Michna-Bales’ artistic practice is rooted in thorough, often primary-source research, which allows her to explore multiple perspectives, grasp the complexities of cause and effect, and understand the socio-political context surrounding the subjects she examines.

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