Copyright for Photographer using Pseudonym

'Is it legal', 'can I do this' type questions and discussions.
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craigCSW
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Copyright for Photographer using Pseudonym

Post by craigCSW » Tue Mar 31, 2015 10:47 am

Hello everyone! I'm new to the forums but happy to be here.

I'm a photographer and I have a question about releasing work under a pseudonym.

My full name is Craig Charles Smith Weiner

At the moment I go by Craig Weiner, but obviously this isn't an ideal name and doesn't have much of an artistic ring to it. I am contemplating using the name "Craig C. Smith" for my photography art works.

e.g. signing the back of prints, using the name for social media and websites etc.

I'm not sure what the copyright implications are for this. As a photographer I understand that
"Copyright is established from the moment the image is created - the only qualification is that it has to be original. It is a right granted to the photographer under the law and it comes into force immediately. These rights are then held by the photographer through your lifetime and for 70 years beyond your death, when it is transferred to your heirs."

My thoughts are if/when someone infringes my work under a pseudonym and I did have to take them to court how could I prove that I was Craig C. Smith (even though my legal full name is Craig Charles Smith Weiner).

I'm sure writers do this all the time, but I wonder if it is different if I'm not copyrighting exact pieces of works like books. To my knowledge in the UK you don't register each individual image in this way.

I also plan on developing a large web presence using the new name Craig C. Smith

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Post by AndyJ » Tue Mar 31, 2015 5:09 pm

Hi Craig,

I'm not sure if you are writing from the USA or UK, (or indeed some other jurisdiction) so I'll try and cover both legal standpoints.

As you know copyright is a personal property right, which just as with other property rights, you may retain, sell or otherwise dispose of as you wish. So if you assigned your copyright in a particular image to, say, a magazine, the chain of ownership (or 'title' in legal jargon) would follow the documentary trail. For the magazine to have 'good title' they would need to show that they had legally acquired the right from you (both US and UK law require that this is done in writing), and that you in turn had a legitimate claim to copyright as the author of the image in the first place. In both legal systems, copyright exists as a matter of fact when the image is created, presupposing that it has sufficient originality to qualify for copyright.

It doesn't really matter what name you wish to use in connection with that claim as long as you can show sufficient evidence that your legal name and your pseudonym refer to the same person. So for instance with a photograph, a crucial piece of evidence of authorship might be the original digital file, say a RAW image file with its attendant metadata, or a film negative. Mere possession of that source file would be credible evidence before a court, irrespective of the name of the owner. This is because in all countries which have signed up to the Berne Convention, no registration of the work is required in order to activate copyright. As you mention, the USA has a system of copyright registration which is optional in the sense that a work does not need to be registered to qualify, although it does need to be registered to bring an infringement action in the Federal courts. However the major advantage of registering your copyright in the US is that once the process has been correctly completed, registration is prima facie evidence of the validity of the copyright and of the facts stated in the certificate of registration. This applies whether the applicant is a US national or a national of another country. The US Copyright Office application form allows for the use of pseudonyms*, and so once a registration form containing both the legal name and pseudonym has been processed, this would be all the evidence of this fact that a court would need, in order to accept that Craig Charles Smith Weiner and Craig C Smith were one and the same, in addition to being the original owner of the copyright.

Of course in the UK there is no formal system of registration of copyright, and so a court would probably require an affidavit to the effect that the legal name and pseudonym referred to the same person.

Occasionally, the true identity behind a pseudonym becomes lost, in which case the law in the UK and the US takes different paths. UK law (Section 57 of the Copyright Designs and Patents Act 1988) applies the following formula when calculating the copyright term:
57 Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—
  • (a) it is not possible by reasonable inquiry to ascertain the identity of the author, and

    (b) it is reasonable to assume—
    • (i) that copyright has expired, or

      (ii) that the author died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.
[...]
In contrast, US law (Title 17 USC § 302c) says the following:
(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire.— In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person’s interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation.
The final point worth noting is that while putting a copyright notice on your work is not legally required in either jurisdiction, there are some advantages to this. So if you put © Craig C Smith 2015 on one of your images there are two primary benefits: a) it advertises the fact that someone is asserting their copyright, and b) it helps a viewer of the image to contact you with regard to that copyright. Clearly if conventional searches via Google or telephone books etc fail to locate Craig C Smith then this second purpose is defeated. Obviously this wouldn't be a problem in your case if your website and social media accounts are in your professional name.


* The Compendium of [US] Copyright Office Practices contains the following explanation:
615.01 (b) Name of author: pseudonymous works - completing the space.

Where a work is pseudonymous, the applicant may:
1) leave the name-of-author space blank on the application and check the pseudonymous box: "Yes,"
2) give the pseudonym and identify it as such, or
3) give the author's legal name, preferably making clear which is the real name and which is the pseudonym, as for example: "Judith Barton, whose pseudonym is Madeline Elster."
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craigCSW
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Post by craigCSW » Wed Apr 01, 2015 10:15 am

Hi Andy,

I am astounded at the level of detail in your reply, thank you so much I'm really grateful!

I should've noted that I am from the UK, so the part about registering copyright would not apply.

It appears that as long as I can prove the original source of image (in this case the RAW image file as I no longer shoot film photography) then it would be fine work under the pseudonym?
so a court would probably require an affidavit to the effect that the legal name and pseudonym referred to the same person.
Can you advise how I would get this if the situation called for it?

If I correctly attach meta data to the files that I produce using my website, email and telephone number am I correct in thinking it would be difficult for my work to actually get lost, I can't think under what circumstances that it could get lost? Or how people then wouldn't be able to contact me - say as long as I keep the website going under my new name.

Many thanks,
Craig

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Post by AndyJ » Wed Apr 01, 2015 5:32 pm

Hi Craig,
Thanks for clarifying your place of residence. In some ways this makes things simpler than if you have to consider registration, as would be the case for a US citizen or a person domiciled there.

Should you ever need to take action over infringement of one of your images, the two fundamentals you would need to establish are that: a) you are the owner of the copyright and b) Craig CS Weiner is the same person as Craig C Smith. The first step, ownership of the copyright, can be achieved in two ways. Firstly if there is a copyright notice attached to the work, the court will assume the named person is the owner unless there is strong evidence to the contrary (see Section 104(2) of the Copyright Designs and Patents Act (CDPA)). If there is no copyright notice, or its authenticity is disputed, proof of ownership of the copyright is generally achieved by demonstrating ownership of the materials such as a RAW file, or in old money, a negative etc, from which the image is derived. Of course that is not a foolproof test, but more rigorous forms of proof would only be necessary if the defendant/alleged infringer tried to dispute the fact of ownership, perhaps with a counter-claim that he took the image and not you. As it would be technically hard to produce a fake RAW data file, such a thing would be strong evidence in your favour. The same is not always the case with a jpeg file where it is a relatively trivial matter to fake the creation date of the file. However a higher resolution/less compressed jpeg file will tend to trump a lower resolution file. If your camera allows you to embed a copyright notice and other relevant information in the RAW file this is even more advantageous because that assists with the second issue of establishing a clear link between you as the owner, and Craig C Smith.

However as the real identity of the copyright owner (ie the physical person who owns the RAW file) is the key thing as far as the court is concerned (because generally speaking only a copyright owner can bring a cause of action for infringement), it is only in order to clear up the potential confusion between your real name and your pseudonym as displayed on the image, that the affidavit becomes necessary. An affidavit is just a sworn statement which asserts a particular fact, which if falsely made, lays the swearer open to a charge of perjury. An affidavit is normally sworn in front of a commissioner of oaths (sometimes referred to a notary public). Many high street solicitors are also commissioners of oaths. An affidavit would only need to be executed if the matter was due to come before a court. That said if you wished to swear an affidavit at any time this would be perfectly acceptable for future use.

On your final point about metadata, I would suggest that you include your name or pseudonym plus the date the image was created (normally automatically added by the camera) and a suitable form of contact information, perhaps a phone number, website or email address. Try to make the contact details as future-proof as possible because you will have no idea when someone might wish to contact you about an old image they discovered on the internet. But metadata is not permanent. It can be erased or altered by anyone who has access to photo-editing software. And some sites (such as Facebook) routinely strip out metadata from images uploaded to their servers. This is possibly illegal as it appears to contravene s296ZA CDPA, but as far as I am aware no-one has ever been prosecuted for this specific activity. Because there has been no test case, it is possible that embedded metadata would not qualify as a 'technical measure', which is defined in s 296ZF as
(1) In sections 296ZA to 296ZE, “technological measuresâ€￾ are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program.
To counter the relative ease with which metadata can be stripped from an image, some photographers resort to steganography in order to hide the embedded metadata, and to make its removal more obvious. However the obvious downside of this tactic is that the metadata is not then available to the casual viewer who might wish to contact you.
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Re: Copyright for Photographer using Pseudonym

Post by IvanB » Tue Oct 16, 2018 2:59 am

Hello,
Didn't want to start a new thread but I am currently in a similar situation to the above so thought I would carry on here.

I work under a pseudonym (UK based) and the logo which I use on social media was used by a large company for a brief period of time, in which they made money from the design. The logo is currently copyrighted under the artist I worked with name because I was unsure of the legalities of using a pseudonym, the company I am dealing with want to assure themselves that I am the copyright owner so not to be liable to anyone else, so am looking to transfer the copyright to my pseudonym asap which we (the artist and I) have both agreed too.

From what I gather in the above replies, it is possible to copyright my logo with my pseudonym, but what address could I use? I would prefer it not the be my actual address. And from what I also gather it is not necessary to reveal the fact I work under a pseudonym unless it goes to court.

One more thing, they requested an assignment of copyright, being a young creative with not much consistent income I really can't afford to pay any large amount of money for this but what would be the cheapest way to get this done?

Any help would be much appreciated.

Thanks

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Re: Copyright for Photographer using Pseudonym

Post by AndyJ » Tue Oct 16, 2018 8:03 am

Hi Ivan,

Several things to unpick here, in order to avoid confusion.

First of all, copyright in the logo will belong to the person who created it. From your question it sounds as if this person is the artist you worked with. Assuming he/she hasn't assigned away his/her rights to someone else, he/she is the owner of the copyright. Provided that you have his/her permission to use the logo then there is no problem with that. As for your pseudonym, it can be just about anything you want: a conventional name, a nickname, a symbol (like the Artist formerly known as Prince used for part of his career) or even a number.

Copyright does not need to be registered, so there is no need to provide your address. As I outlined in the earlier reply, the important thing is to be able to prove, should it become necessary, that you are the same person as the pseudonym. In the case of the company which wants to use your work, a simple signed statement to that effect should suffice (but see my comments below on assignments). As I also outlined previously, it is useful to have some sort of contact details attached to your pseudonym in order that your work doesn't become an orphan ( a work whose author is either unidentifiable or unlocatable), as this increases the chances of others infringing your copyright.

You also mention that the company wants you to assign copyright to them. This has to be done in writing, but it doesn't need anything elaborate or expensive. The document should state that you or your pseudonym persona are the owner of the copyright in the work, which should be briefly described, and that you assign the copyright to the named company, then sign and date the document. However it is posible that the company will provide a contract for you to sign which achieves the same effect, so you may not need to worry about this. However, be aware that once you assign the copyright, you no longer have a right to use the work yourself without permission from the new owner. If you don't want to handover all your rights you can instead proivde them with a licence to use your work. This licence can be an exclusive licence which which would mean that you couldn't use the work for the duration of the licence term, or a sole-user licence which would allow you to use the work in parallel to the licensee, but you could not issue other licences for the same work to anyone else. Legally a licence doesn't need to be in written form, but it strongly reccommended that this is done to avoid disputes.

The last thing to mention is your moral right to be credited as the author of the work. If you want to be credited, you should assert this in the assignment or licence document. If you want to exercise this right, you can stipulate the name or pseudonym you wish to be used.
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Re: Copyright for Photographer using Pseudonym

Post by IvanB » Wed Oct 17, 2018 2:56 pm

I understand the first point. I forgot to mention that the logo was used without permission by the company, which is a key part of this.

I get that I need to assign the rights from the artist to myself which he has agreed to, the company has asked for this so the avoid liability from someone else after this is settled.

In terms of an assignment of copyright "This has to be done in writing, but it doesn't need anything elaborate or expensive. The document should state that you or your pseudonym persona are the owner of the copyright in the work, which should be briefly described, and that you assign the copyright to the named company, then sign and date the document."

Do you happen to know of any free online examples I could use as a base, to then edit for my situation?
I have read that an assignment of copyright needs to be witnessed too?

Thanks for your help

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Re: Copyright for Photographer using Pseudonym

Post by AndyJ » Wed Oct 17, 2018 4:13 pm

Hi Ivan,

If you google 'Deed of copyright assignment' you will find several examples, although none of them is ideal for your purposes. This is because these templates try to cover all the possible issues and often include clauses for other sorts of intellectual property rights. Perhaps one of the simplest has been produced by the law firm DLA Piper (pdf).
When choosing a format to follow, be careful to check that it is intended for use under the law of England and Wales, or if you live in Scotland, Scotland. Avoid documents intended for use in other jurisdictions. Unfortunately the Association of Photographers no longer provide a free template for assignments.
Going back to your second paragraph, if the intention is to indemnify the company with respect to past infringement, this makes the process more complicated because, of course, a standard deed of assignment is not retroactive and so the company would remain liable for any historic infringement of the copyright of the artist. If the artist has no intention of taking action over this matter, the simplest solution would be for him to issue the company with a retrospective licence to cover the period during which the infringement occurred. You mention settlement. If this refers to the past infringement, then a licence of this sort could form part of the settlement agreement.
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Re: Copyright for Photographer using Pseudonym

Post by IvanB » Wed Oct 17, 2018 4:48 pm

Thanks. What do you think of the document in the following link?

https://www.jonathanlea.net/2014/free-i ... agreement/

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Re: Copyright for Photographer using Pseudonym

Post by AndyJ » Wed Oct 17, 2018 11:09 pm

Hi Ivan,

Like the DLA Piper assignment document which I mentioned it's probably more detailed than you need. I am assuming that the logo has not been registered as a trade mark by any of the three parties. If that is correct then paragraph one can be reduced to the interpretation clause plus a single sentence which says that the assignment concerns the copyright in a single graphic work [the logo]. There is no need for any mention of 'the project' or any future rights which may arise (they won't).

If this assignment is part of a settlement in which you and/or the artist are to receive a payment from the company for the copyright then it would be appropriate to retain the current paragraph 2. However if no money is to change hands with respect to the assignment, this paragraph will need to be amended considerably: I suggest that you just retain the words "The Assignor hereby assigns ... " up to the end of the paragraph.

None of paragraph three is required.

Also, if artist who created the work wishes to assert his/her right to a credit, a clause to that effect would need to be inserted before the current paragraph 4 (you can find some suitable wording in the DLA Piper template).

At the start of this part of the thread you said "I work under a pseudonym (UK based) and the logo which I use on social media ... " Do you intend to continue to operate your social media with the same pseudonym but without the logo? If so is the company aware of this, as this could throw up another intellectual property issue known as passing off. This could arise if you are using a name under which this company intends to trade using the logo. This would be especially pertinent if you are already known to your social media followers as being associated with the logo.
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