Despite my youthful appearance, I am old enough to remember when Congress changed the copyright law in 1978. It was a sea-change in the way things like photography, illustration, music and copywriting are purchased for commercial applications such as advertising. Perhaps you know all this, but a quick refresher does no harm.
The change Congress made was to vest the copyright with the creator of original works unless it is legally transferred to someone else. (By the way, concepts or ideas are not protected under the copyright law until they become a physical work.) The intent of the law was to give creative professionals control of the profitability of the things they create, but in practice, that’s a point that only matters to the self-employed – if you work for a company, it’s the employer not the employee who owns the copyright.
Here’s how it works. Say you have a photograph you want to use in a brochure. Even if you have possession of the print, transparency or digital file, you only have the right to use the image if you’ve negotiated it with the photographer (or whoever owns the copyright). That’s an important point: you’re actually negotiating only for the right to use the image, not the image itself; the copyright remains with whoever owns it. For example, “limited usage” may mean you negotiate to use the image only in a single direct mail campaign, whereas “unlimited usage” would mean you were bargaining to use the image in your advertising, your Web site, your billboards and even the side of your trucks.
Where you most often see this “transfer of usage” in practice nowadays is on Internet sites offering stock photography. If the image you’re buying is “licensed”, it means you’re paying a royalty based on the intended usage. Now, if you want exclusive usage, that’s going to cost a little more, and unlimited usage more still. For much less money, you can buy a “royalty-free” image, which means you are buying the right to use the image anywhere, but others – potentially lots of others – can do the same. There are other, similar models for art and music.
As I am neither a lawyer nor a preacher, I’ll close by simply reminding you to keep the Copyright Act of 1978 in mind when you’re using artwork, photography, writing or music created by someone else for commercial purposes. Unless you make specific provision to license usage, you’re potentially liable for violation of the law.