Photography and Copyright Law
Photography and Copyright Law
I’ve heard some tall tales in my career as a photographer but few compare with the excuses of those who accidentally or willfully misappropriate photographic work that does not belong to them. Whilst many uses of images – especially those found online – may stem from a genuine ignorance of the law the latter does not provide you with a valid legal defense. We all make mistakes but whilst I can forgive an individual it’s much harder to believe that a business was not aware of the law.
Some common sense things to avoid both on and offline:
- Don’t reproduce photographs supplied to photographic or news agencies – like Reuters, Getty, AP, Magnum, etc (not even on Pinterest) unless you have purchased display rights to those photos. This also covers any photograph you find gracing the pages of a newspaper, book or periodical;
- Don’t reproduce photographs from stock photo libraries – like Dreamstime, iStock, Flickr, Shutterstock, Alamy, etc – unless you have purchased display rights to those pictures;
- Don’t remove any identifying copyright information from a photograph either overtly like an electronic signature or covertly by deleting a photograph’s Exchangeable image file format - EXIF- data. This will merely increase your potential exposure to monetary damages;
- Don’t use a copyright work to promote a charity, a business, an event or a product unless you have purchased photographic rights to those images. If you profit from a copyright violation you will dramatically increase your potential exposure to monetary damages;
- Don’t assume that the copyright owner won’t find you. There are a number of copyright protection apps out there and a photographer who periodically checks his/her portfolio will find you - count on it;
- Providing a photographer credit will not protect you. IIlegal use is illegal use, period.
Some common sense things to do if you are informed that you’re violating someone’s copyright:
- If you are informed that you are using/displaying a copyright image stop using it immediately. If you “willfully” continue to use the image after being informed of the violation you expose yourself to increased monetary damages;
- Be polite. You may well be unaware of the law but at the very least be quick to apologise for using the image. Remember that in many cases a photographer earns his/her living from this profession and also has a family to support. Taking food from his/her family table is not likely to go down too well;
- Don’t argue the toss. A photographer is well within his/her rights to demand that you take down an image that is displayed without a photographer’s permission both under U.S. Copyright Law and under the DMCA. Whilst there is an exception for “Fair Use” the likelihood is that – in most cases – your use of the image will not fall under this exception.
- Don’t claim that there was no signature, © copyright symbol, watermark, or other identifying copyright information – it’s not actually required by law. Most photographs carry electronic Exchangeable image file format (EXIF) data that is recorded when an image is first captured. Modern EXIF files often carry a photographer’s name and older files carry the camera’s serial number. It’s possible to erase EXIF data but this may compound the perceived copyright offense and again, ignorance is not a defense.
- Don't claim that you were giving a photographer "Free" exposure. That's likely not going to sit very well with him/her. A photographer - like everyone else in business - expects to be paid for his/her work.
- Offer to buy a photographic site license! The quickest way to turn hostility into a longterm friendship is to fess up. "I made a mistake. I'm sorry. Can I buy a site license for this image?" You'll immediately disarm the photographer. When I've been met with an apology I've always responded much more positively including providing extremely favourable terms for a site license. However, if I'm met with hostility you can be sure I'll make life extremely uncomfortable for the perpetrator by filing multiple DMCA take downs notices, informing his/her business advertisers and going as far as legal action to punish them.
The U.S. Copyright Act – Title 17
Copyright of an image is automatically vested in the copyright holder – in this case the photographer. See U.S. Copyright Act 17 U.S.C. 106.
The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
- to reproduce the copyrighted work in copies ;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of audiovisual work, to display the copyrighted work publicly;
A photograph does not have to be registered with the U.S. Copyright Office nor does it have to be watermarked or carry the © copyright symbol in order to be considered copyright. For those photographs that are unlawfully reproduced without permission (without copyright registration) the photographer can recover actual damages covering the normal licensing fee plus profits derived from the infringement. In cases where a photograph is registered with the copyright office a photographer can recover statutory damages (up to $150,000 per infringement).
When determining the size of statutory damages the courts will look at a number of factors including:
- The infringer’s profits and expenses saved because of the infringement;
- The plaintiff’s lost revenues;
- The need to ensure the continued integrity of copyright law;
- Whether the infringer acted willfully.
(See: 17 U.S. Code § 504 - Remedies for infringement: Damages and profits) A full version of the relevant U.S. Copyright codes can be found here.
The Digital Millennial Copyright Act (DMCA)
Displaying an electronic image online without photographer approval is a violation of the 1998 Digital Millennial Copyright Act (DMCA). Any person injured by a violation of section 1201 or 1202 of the DMCA may bring a civil action in Federal court. Monetary awards for violation of Section 1202 of the DMCA range from $2,500 to $25,000 irrespective of whether copyright has been registered. Furthermore, removing copyright information is a violation of Section 1202b of the DMCA.
" No person shall, without the authority of the copyright owner or the law - (1) intentionally remove or alter any copyright management information...knowing, or, with respect to civil remedies...having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.”
In addition, it is a criminal offense to violate section 1201 or 1202 wilfully and for purposes of commercial advantage or private financial gain. Under section 1204 penalties range up to a $500,000 fine or up to five years imprisonment for a first offense, and up to a $1,000,000 fine or up to 10 years imprisonment for subsequent offenses.
The EU Directive on Copyright in the Digital Single Market 2016/0280(COD)
Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users
1.Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
Click here for a full version of The Directive on Copyright in the Digital Single Market. See also: Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights (EU)
Other relevant laws for U.S. and overseas photographers:
- Copyright Designs and Patents Act, 1988 (UK)
- Berne Convention for the Protection of Literary & Artisitic Works (WIPO)
Photography & The Law 101 - New York-based media and copyright attorney, Alexia Bedat provides some excellent advice for both professional and amateur photographers when capturing buildings, people and places: https://www.facebook.com/Adorama/videos/2350393525216787/
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