Photography and copyright can be tricky subject matter.
For most of us, copyright violations rather than copyright facts bring issues to light, so we learn by the mistakes of others.
This path, however, leaves room for the spread of rampant misconceptions about the proper application of the law.
The risks are high, too. These days copyright violations can lead to hefty fines and even criminal charges in some instances. At least, infringers can expect a pushy take down email with a lawyer’s threat of court time. Clearly, it’s essential to know key facts.
Even though photographic copyrights can get complicated, the facts can bring clarity and clear up confusion.
Granted, it’s not always pleasant to discover all the sharing you’ve been doing on your Tumblr feed is probably actionable in court should the photographer choose to pursue it, or to realize that the fellow you verbally abused via email for copying your Instagram photo might actually have a good claim under the fair use doctrine.
Still, when it comes to photos and copyrights, it’s always good to get the facts first.
Fact 1: The minute someone snaps the shutter, that person owns the copyright.
This seems straightforward. Copyright is a right of ownership in original works fixed in a tangible form. A photo fits easily in this category. Unless there is a contractual agreement declares otherwise, the person taking a photo owns its copyright. Some have raised the idea that a photo is a mechanical representation of fact. Even with this description, a photo is definitely the original expression of the photographer, in tangible form.
Things get tricky when people confuse ownership of the camera with ownership of the copyright. For instance, imagine you and your friends are snapping photos in front of the Washington Monument.
You hand your camera over to your best friend who happens to snap a photo that would be perfect for posting on Shutterstock for a bit of extra cash. The problem is you don’t own the photo – your friend does.
It makes sense when you think about it. Suppose photos can be categorized as mechanical representations of fact. That would mean that every photos is just about the same in the eyes of law no matter who has snapped it.
However, the essence of photography, many photographers will agree, is in the way in which the ‘mechanical facts are expressed’ – the lighting, the angles, the choice of subject matter, all make the photo an original expression of the person taking the photograph, regardless of who owns the camera.
Fact 2: Including a copyright notice is not required.
It may be common knowledge to some, but there are still a few out there who don’t know – you don’t need the familiar © anymore.
Actually, the formal copyright notice has three parts: the ‘circle c’ (the abbreviation ‘Corp.’ or the word ‘Copyright’ will also suffice), the first year of publication and the copyright owner’s name.
Use of copyright notice, however, is completely optional for works published on or after March 1, 1989 under U.S. law.
However, using copyright notice may be a smart choice.
By using copyright notice, those who sue for copyright infringement can prevent the innocent infringement defense.
This defense is the easiest way to refute infringement. The infringer simply claims he wasn’t aware of the copyright. When properly pleaded, the defense can reduce the amount of damages owed, but proper copy-right notice nullifies this scenario.
Another good reason to use copyright notice is that it still does tend to give most potential copiers enough pause to prevent outright infringement.
Since permission or formal registration with the U.S. Copyright office is not needed, notice is also a simple and hassle-free way to keep your photos protected, even though it’s optional.
Fact 3. Photo copyrights can be superseded by other rights.
Keep in mind when taking photos that your ownership rights may be overtaken by other rights. One such right is the right to privacy for individuals in your photos.
Basically, copyright covers ownership over the actual photo and protects a photographer’s right to reproduce and distribute the photo.
However, this does not give the photographer/copyright owner the freedom to use the photo for every purpose. Specifically off limits is the distribution of photos of individuals without some form of consent, usually via a model release, for commercial purposes.
The reason for this is that individuals photographed enjoy a particular kind of privacy right called the right to publicity.
This means that the photographed individual is in control of their likeness when it’s used for commercial purpose. In other words, a photographer may not use photos of individuals to advertise their business or sell the photos without first obtaining proper consent.
Fact 4: Watermarking is not the only way to protect photographic copyrights.
The subject of watermarking is usually widely debated among photographers. Many artists see the value in using them, but are unwilling to sacrifice the quality and visibility of their photos. To go beyond the limits of watermarking it may be necessary to get a little creative.
One such way is a clearly explained “permissions” page on a photographer’s website describing permitted use under specific circumstances.
Of course, this will not prevent copying, like watermarking does, before it happens, but it can send strong signals to those who take the time to visit a photographer’s site to inquire about permission.
The page need not be a brilliant feat of lawyer-like skill. Simply laying out ground rules and reiterating copyright law applicable to your photos will do. It’s a good idea to provide an email ad-dress for viewers for permission requests.
Another very smart idea is to outline permission rules for all social media, including Tumblr, Twitter and other non-commercial, personal websites.
For instance, viewers might be allowed one posting of a minimum pixel photo alongside a link to the copyright holder’s website proper credit, with permission required for postings beyond this.
Though the practice of posting photos on Twitter, Facebook, and Tumblr with or without getting permission from the original photographer has become standard practice around the Internet, it’s important to note, in many cases, this practice is completely illegal and could be actionable in court should the copyright owner wish to pursue it.
The modern scenario is that many do not, in fact, pursue these matters for a variety of reasons.
One is that arbitrary infringement is hard to police. It’s so easy to share images online that wide-spread copying is very difficult to monitor, and artists may not be equipped with the tools, financial or otherwise, necessary to do so.
The result is that much of the copying simply goes unnoticed by copyright holders.
Another reason is that some artists actually enjoy the benefits of our rapidly expanding share culture. The free advertising that ensues is hard to beat and serves as an incredible incentive for artists to keep producing sharable work. It’s a chance to increase visibility without spending a nickel.
Problems arise, however, when the work is simply posted without giving credit to the original photographer or without a link back to the artist’s website as identifying information.
The benefits begin to erode without identifiers that would lead Internet users to associate the work with the rightful owner of its copyright.
Too often this is the scenario and it’s difficult to communicate to Internet users that getting permission is always the safest (and most polite) choice.
Get the Facts First
Copyright is a complicated phenomenon and photographers are not immune to fallout from this complexity. Never fear.
The facts are out there just waiting to be researched and discovered by those savvy enough to desire full protection under the law.
An in-depth understanding of each nuance this modern era brings into play may not be possible, but knowing key facts is the perfect accent to any photographer’s artistic talent.
About the Author: Veena is currently a legal document specialist, freelance writer, poet and community activist re-siding in west Texas. She earned her JD from Chicago-Kent College of Law, specializing in Intellectual Property, and holds a degree in Microbiology from the University of Texas at Austin.