Contracts and Poker: A Primer on Copyright

A controversy recently erupted over an outfit called PokerPaint, which takes photographs from the world of poker and manipulates them so they look very cool. The problem is that PokerPaint apparently neglected to get permission to use the underlying photographs.

Was it necessary to get permission? This question gets us into the world of copyright law.

I often ask people if they have ever obtained copyright protection for anything, and they almost always answer, “No.” But they are wrong. Copyright attaches to our literary, artistic, and musical expressions as soon as they are fixed in a tangible or machine-readable form. So, when you write an email, scribble a sketch, or record a tune, then boom – copyright protection falls from the sky!

Nor does anyone judge the artistic worthiness of the expression. When you write a letter to your mom or when you point and click your phone to take a photo, copyright protection attaches to these mundane works as long as the expression is original. “Original” in this context means only that the work originates with you; it does not mean it has to be artistically original.

If I stand in the same place as you and take a photo of the same scene, I am also entitled to copyright protection for my original work even though it looks a lot like yours.

Therefore, when you see creative works such as photographs posted on the internet, unless they are very old (likely prior to 1926), they are probably protected by copyright. But you don’t see any copyright notice on them, you say. In fact, since 1978 it has not been necessary to put notice on a work to secure copyright protection. There are some benefits to doing so, but it is not necessary.

That gets us to registration. When I asked if you had ever obtained copyright protection, you probably thought, “No, I have never registered anything with the Copyright Office.” But that step is not necessary to obtain copyright protection, as described above.

However, you do have to register it in order to bring a suit for copyright infringement. The office is way behind, so that will take a while to do. And once it is registered, that does not guarantee that you have a valid copyright. Unlike the Patent and Trademark Office, the Copyright Office does not compare the work to past works to determine whether the work is entitled to copyright protection. All you are registering is a “claim” to copyright, so the defendant can still argue that your work was not entitled to copyright protection.

If you register your work before the infringement takes place, then you are entitled to what are called “statutory damages” – damages as laid out in the Copyright Act. Sometimes a person innocently posts a photo or a poem on their web page and then gets a demand letter from the owner of the copyright in that work claiming that they owe $200 – that is the minimum statutory damage for an unintentional infringement. So, if the work you created has commercial value, it may well be worth springing for the $45 to register it in order to get statutory damages if it is infringed.

Once copyright attaches, the copyright owner has the exclusive right to make use of the work. This includes not only the right to make copies, but the right to make “derivative works” – which the Copyright Act defines as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” That last bit sounds a lot like the works that PokerPaint is making from the photographs.

The owner of PokerPaint apologized and said that in the future he would get permission from the photographer. It is not as simple as that, however. It is necessary to get permission from the copyright owner, who may or may not be the photographer. When I write a book, I obtain copyright as soon as the words enter my word processor. However, when I contact a publisher, the publisher may ask me to enter into a contract in which I assign the copyright to the publisher. After I have done that, I can’t give you permission to quote from my book – only the publisher can.

If the photographer is an independent contractor, then copyright belongs to the photographer even if she was paid to take the photograph. In that case, the hiring party often gets the photographer to assign the copyright to them. But if the photographer is an employee, and takes the photo on company time, then the copyright in the photograph belongs to the employer. And if you buy the photograph, you are buying only the physical object and not the copyright in it, so owning a copy does not give you any rights to copy it or to make derivative works.

Finally, you are wondering, do I have rights to my image that I can cash in on when my photo is used? You don’t have a copyright claim, but you do have publicity rights that are governed by each state. In general, you have the right not to have your likeness appropriated for commercial use. However, you have to look carefully at how “commercial use” is defined, and of course there are a multitude of exceptions. So, you may not have as many rights as you think. Furthermore, you can waive this right. If you enter a WSOP poker tournament, for example, you will be asked to sign a release that addresses the rights to your image.

In a later column, we will look at trademark, which is a related but distinguishable form of intellectual property.

Boom! I just got copyright protection for this column. ♠

burnham_Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law in Spokane, Washington. He can be reached at [email protected]._