All Rights Reserved: Photographers' Copyright Infringement
The advent of the internet has started an
open season on copyright infringement of photographs. Website owners and
developers find it all too easy to take photos online and put them on their
websites.
Hence, professional photographers must
understand the legal ramifications of copyright law in the photography
industry.
Don't let your work be plagiarized without a fight!
After all, you have busted your behind
trying to perfect your craft. So, before you capture your next photo or use an
image you find on Google, make sure you are aware of how privacy and copyright
laws work.
What exactly is copyright?
Copyright protects the legal rights of the
intellectual property or work of art owner. In Layman's terms, copyright is the
right to copy. For photographers, this means that only they're the original
creators of their images, and anyone they give permission and authorization to,
are the only ones with the exclusive right to post, publish, or otherwise
reproduce their images.
Your photo = your copyright
The moment you snap photos on your camera,
you own the copyright to your images. Regardless of your skill level, your
pictures and other content are protected by law.
Bear in mind that copyright laws vary from
state to state and country to country, so the information in this article is
general.
More education required
The lack of education or knowledge about
copyright has caused a lot of issues in the photography industry. A lot of
emerging photographers are not informing their clients on copyright and usage,
so clients expect that they own their images and can publish or reproduce them
without authorization from the photographer.
To add to this problem, lawyers often
advise their clients to obtain copyright from the photographer, but in many
cases, this is completely unnecessary, unless the client wants to sell the
photos and make a profit from those images.
Copyright law for photographers
While it is not really necessary for
photographers to submit any paperwork for their photos to be copyrighted, it
may not be a bad idea to do so. Having your work copyrighted could get you
punitive and compensatory damages in case of an infringement.
How to copyright photographs
In the United States, copyrights can be
registered with the U.S. Copyright Office. Forms can be downloaded on their
website, which explains further how to copyright photographs.
The registration will be based upon whether
or not your photos have been already published; unpublished work is granted the
strongest protection and could easily be filed, published work, however,
requires a longer process and will be determined by the date of publication.
Should you register your copyright if you are publishing photography online?
The same copyright laws protect your photos
when you publish online, and your work will never become public domain unless
you change its settings.
Some platforms have settings when you
upload your images that allow for commercial use of your work without paying
for it. You can still, however, report copyright infringement. Although when in
doubt, just watermark each photo with a © symbol.
What if an image is made using your work and then used commercially?
Yes, that situation can be considered as
copyright infringement if it is regarded to be a derivative work and that the
illustrator has plagiarized the copyrightable elements of your work.
A derivative work must still contain some
substantial originality. The threshold for originality from this work is
assessed much higher than that required for the original work.
Who owns what?
An important point to note here is that
whoever created the derivative work owns the copyright to the revision of the
photograph only, but the original copyright is still owned by the creator of
the original work the derivative work was based on.
Is there a simpler approach? Yes.
Since photography, copyright laws may seem
daunting and overwhelming, and copyright notices are not really necessary for
your photos to be copyrighted, it is a great idea to place some sort of notice
on your pictures in order to, to some degree, deter theft and plagiarism.
Watermark photos for added protection
Watermarking your photos, for example, is
important in a way that it allows people to know that the photographs are not
to be used unless authorization or license is granted by the owner personally.
Unlike professional publishers who know
they should not use another photographer's work and are willing to pay for it,
a lot of times, people simply are just not aware that they are infringing on
copyright and end up placing your work on their websites.
Promote the rightful owner
A watermarked photo will not only let
potential unauthorized users know that it is prohibited but in the event that
they do, their readers or audience will know who the rightful owner is, of the
photos.
Part of being a professional photographer
is managing a business. A lot of photographers admit that the photography part
of their business only represents a percentage of all that is involved, a lot
of the time and effort is spent on other facets of running the business such as
the sales, administrative, and management aspects. It is beneficial if part of
that time is used to know and understand how to protect your work.
What can you do if your photography is used without permission?
Hopefully, you have added a © copyright
notice on your work, but even if you haven't, you will still be protected by
your country's copyright laws. There are several different ways to handle this
situation.
Option 1: Request a photo credit
If the infringer is already offering a
decent marketing outlet for your photographs on their own website, you may want
some credit - where credit is due. Send him or her an email or D.M. them on
social media to request a credit on your photography and likewise, set the
parameters for the right to use your work.
As well as a link
Add the stipulation that the infringer must
also publish a copyright notice and a link to your own online portfolio, too.
The good thing you can get from this is that you may even get some new
customers because of all the additional exposure. Free marketing!
Option 2: Prepare a DCMA take-down notice
This take-down notice must be in writing
and signed by the copyright owner, recognizing the copyrighted photo that was
infringed.
As the photographer, you must also include
a statement that the info contained in the notice is accurate and that you have
the right to proceed because you're the owner of the copyright.
Even if you don't live in the U.S., you may
still use this tool to stop an infringer in the United States from using your
work.
Option 3: Prepare a Cease and Desist Notice
If the infringer could be a potential
client and you'd rather not cause a fuss, personally reach out to them and
inform them that their use of your work is not duly authorized. Either request
payment for an appropriate license fee to use your image, a photo credit with
the link to your digital portfolio or website, or if that does not work, ask
them to cease the use of your image.
Receiving
compensation
The compensation you can receive from a
copyright infringement can often-times amount to over thrice your normal
license fee if you register your works in a timely manner.
Keep in mind that there are some risks in
sending the demand letter yourself. You may have to be up for a struggle
because if the infringer says that they were duly authorized to use your
photography by filing a request for declaratory judgment to deter a lawsuit.
This may also involve taking legal
action for which you may need the help of a lawyer in a court that may not be
in your area. Not fun, especially if you are out of your jurisdiction.
To avoid these from happening, include in
your letter an "offer to settle in an attempt to settle this
dispute." Consider speaking to your legal counsel first.
Option 4: Get a lawyer to send a demand letter
Although this can lead to rising tensions,
the weight of your demand letter is drastically increased if it comes from a
lawyer.
Some lawyers charge a flat fee to send a letter, but others may charge a "contingency fee" depending on the
percentage of the recovery—or both.
Make sure to find a lawyer who specializes
in copyright issues.
Option 5: File a copyright infringement lawsuit
This is your most assertive option and will
involve pursuing legal actions by filing a suit.
It is ideal to hire a lawyer to help you
file suit because legal procedures could be complicated. Even if your
photography is not registered with the U.S. Copyright Office during the time of
the infringement, you could still file a suit. Nevertheless, you may want to
register your works for possible future infringements to be eligible for legal
damages.
Keep in mind that you will have three years
from the date of infringement to file for legal actions for copyright
infringement. But in most jurisdictions, you will need to have received your
registration certificate to file a complaint in a Federal district court.
Tips on Copyrights
Don't forget the metadata
Whether IPTC or EXIF, don't forget to
ensure that every photo you post online has this data attached to it. This
should, at least, include copyright and author information, more than enough to
verify that you are the owner of the photos if needed and make it easy for
someone interested in purchasing licenses for the photo to track it back to
you.
License and license well
State what the terms of use of your works
are under, it is important to make their license clear and place it on every
page of your site. With Google, people don't come in through the front door,
and they will not click to read your dedicated license page.
Keep it simple
Make the terms plain and simple and in a
place where anyone who just stumbled across the image will notice it. The odds
of the license being followed go up considerably when it is clear and visible.
Likewise, make sure to avoid both legal and industry jargon as they only serve
to confuse further.
Search for your works regularly
You are most likely to know what you're most
popular works are, and it makes sense to see where they are being posted. For
quick searches, you could use an image search engine such as Google Images and
Tineye.
Meanwhile, if you want a more complete
solution but you are on a tight budget you can opt for ImageRights or
SignMyImage. For a more advanced and thorough system, considering either
Digimarc or Picscout.
The main point though is to use those
software and tools first and foremost to get a grip of how your images are
being used and then decide about ‘if’ and ‘how’ to respond.
Focus on bad actors
Use common sense when contacting those who
are using your images and respond accordingly. Understand that a lot of people
are not exactly aware of how copyright works on the internet and, as a copyright
holder, you have a chance to educate them.
Register your works
It goes without saying, but consistently
and regularly register your content with the U.S. Copyright Office,
particularly if you are in the United States or are dealing with copyright infringement
in the United States. Failure to register, especially for a professional
photographer can be a very expensive
mistake.
Keep putting out high-quality content
The best way to protect your works against
piracy is to be ahead of it. If you are putting out high-quality work
regularly, the infringers will always be several works behind. Keep honing and
improving your craft and putting out fresher, better works, and you will likely
find that the impact that infringement has is much less.
Bottomline
Copyright is something that many people
don't understand – even your clients. It is important to educate yourself and
others you work with on the ins-and-outs of copyright. Laws differ from country
to country, but you can find more information - online.