Here's the issue: you photograph a car for the manufacturer in 2004 and register the photo with U.S. Copyright Office. In 2005, the car maker produces the same car except with a different style of wheels. The client asks you to shoot only the new wheels and add them to the original photo using Photoshop. The new photo then will be distributed. Do you need to register the new photograph to obtain full statutory copyright protection? You do if it would qualify as a derivative work.

As the owner of a copyright, you have complete and exclusive control to do a variety of things to your photograph, including the right to prepare derivative works based on the original image. But when you alter a work, it's a judgment call as to whether it constitutes a derivative work or is only a minor variation of the original work.

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other modifications. A derivative work must be different enough from the original to be regarded a new work - in other words, it must contain some substantial, not merely trivial, originality. Making minor changes or additions of little substance to a preexisting work will not make it a new version for copyright purposes.

One of the tests to decide whether the new work is a derivative work is whether the new material is original and copyrightable in itself. Note that, for reasons not covered here, the standard of originality is higher for derivative works than it is for those not based on preexisting works. If your photo meets the definition of a derivative work, it must be registered for full statutory protection. If the photo only is slightly modified and does not qualify as a derivative work, then the original registration covers the work.

In the case cited above, since the photograph of the wheels may be considered original and copyrightable itself, adding it to the original photograph probably makes it a new work. For the most protection, registering the new work is the safest bet.

Take my advice; get professional help.

PhotoAttorney

Copyright 2005 Carolyn E. Wright All Rights Reserved

Carolyn Wright

Carolyn Wright is a professional photographer with an active wildlife photography business. Shooting for 25 years, her award-winning images have been used in books and corporate marketing materials. Her wildlife photos will be included in the upcoming book, "Captivating Wildlife - Images from the Top Ten Emerging Wildlife Photographers" by Scott Bourne and David Middleton. She also is working with Scott Bourne on "Wolfscapes," a photo book documenting the beauty and strength of wolves. Carolyn shares her love for photography with her enthusiasm for the law. Trained as a top-flight attorney, Carolyn's legal practice is aimed squarely at the needs for photographers. She understands the special issues that confront both professional and amateur photographers, and she regularly speaks and writes on the subject. Her book, "88 Secrets to the Law for Photographers," also co-written with Scott Bourne, is scheduled for release in fall 2005. On the faculty of Olympic Mountain School of Photography, Carolyn?s passion is enhanced when teaching photography. She enjoys writing and speaking on the subject, as well, and is a regular columnist for PhotoFocus, an online magazine for serious photographers. Carolyn is particularly tuned to the special interests of women in photography. She appreciates women's unique approach to the subject, and adapts her instruction accordingly. Armed with more than 20 years of general business experience and a Masters of Business Administration degree, she understands what is needed to succeed in male-dominated fields. This knowledge, combined with her training and experience as a teacher at all levels from grade school to graduate school, provides the strong foundation she uses to help others with their photography. Carolyn can be contacted at 2107 N. Decatur Rd. #117, Decatur, GA 30033 or by phone at 678.592.8025.