Sunday, 11 March 2012

Photography, copyrights and imperfect analogies

UPDATED March 2, 2013.

In the business side of photography, you occasionally run into instances where, no matter how simple you try to explain an issue, some folk put 2 + 2 together and come up with 22.

One of the most contentious issues that I often run into is copyright. I mean, let's face it - unless you work in a creative field where what you do is directly (or indirectly) related to media or works of art... well, you're not likely to know much about the legal ins and outs of it.

Of course the internet age has made copying as simple as a few clicks of a mouse - not to mention that a wealth of misinformation and opinion flies around about what you can and can't do with media that exists online, coupled with laws that may vary at national level.

Still some simple truths apply almost universally, thanks to the Berne Convention
  • Copyright in a work is automatic and comes into being the moment a work is created
  • Formal registration of a work is not required for it to be protected by copyright laws
  • The creator of a work is almost always the copyright holder
There can be some exceptions to that last point: if you're an employee of a company and your job is to create works, your employer will hold the copyright. Also, if you're self-employed and asked to create a work for someone else, they might request to have copyright assigned to them via a contract - which the creator may or may not agree to do. The broad term for both arrangements is work for hire

Getting back on track: how do people go about using copyright works and stay within the bounds of the law?


It's not that alien a concept really. There are many aspects of our lives which require us to pay licenses in order to do things - such as drive a car, watch television (in the UK at least), fish in a particular river or countless other things that mean we have to pay a sum of money so as to obtain permission to do something.

When it comes to photography, someone wishing to use an image in print or online must obtain the permission of the copyright holder and possibly also pay a license fee to do so. Yeah, I know some photographers don't ask for payment but hey, how they pay their mortgages is their problem and frankly that would be a whole other topic of conversation.

Now we come to the tricky part: how to work out what to charge. You might as well ask how long is a piece of string, as this will vary from person to person. Luckily there are guidelines out there for people to use if they're unsure - the National Union of Journalists publishes a Freelance Fees Guide for anyone to see and use. There's also software such as FotoQuote which many of my peers swear by.

For the sake of brevity, here's a screen capture from Getty Images pricing system showing a picture that I took of Alex Reid back in 2010. Don't worry - I gave myself permission to use the picture here. (click the image for a clear, full size view)

You'll see some of the variables that are used to calculate how much to charge for this particular license.

Firstly, the person wanting to use the picture is going to use it in a commercial or promotional manner on a website. They're happy with a small size file - 300 x 250 pixels - and it's going to be used more than once on their website, so they've chosen the "repeated use" option, meaning they might have it on their homepage and also somewhere else on their site.

They reckon they'll only need to use the image for one year and, since their business is solely in the United Kingdom, that's the territory chosen. The business which they're involved in falls into the "sports, fitness & leisure" sector and they don't need the picture to be exclusive to them.

From all of that, Getty's quotation system churned out a fee of £1,120. It might surprise people that a photograph can be licensed for so much but this is the reality of the photo business. Photographs can demand far higher fees than that, depending on the nature of the image.

Of course I did say earlier that some photographer might not charge for such a use at all, or ask for a lower fee than what could be deemed to be the industry average; that's their choice - the same way that you could choose to go into your office for a day and tell your boss not to pay you for the eight hour shift you're about to do... but let's not get sidetracked.

There is one other thing I want to touch on at this point; it's all well and good for the company to want a photo of Alex Reid (per this example) to use on their website - but Mr. Reid has to agree to them using it, and also has a right to be paid by them in return for his permission. This means the company has to pay both the photographer and the subject if the use is commercial or promotional.

Contrary to this, if it were a newspaper, magazine or website wanting to use the picture as part of an editorial (news) piece about (or relating to) Alex, the only person whom would be paid is the copyright holder. 

Still with me? Good. Now we come to the extra tricky part. Remember I said that the internet has made copying as easy as a few mouse clicks? Yes, well that also means that there's a massive temptation on the part of businesses and individuals alike to simply copy a photograph and use it as they like without even thinking about whether they're allowed to do so.

And it happens. 

A lot.

Now, photographers approach this issue in several different ways. Some will be happy to see their work proliferate online and get warm fuzzy feelings every time one of their pictures is used. Others may ask that their name appear on or next to the photograph a.k.a. the notorious "photo credit" (which usually only other photographers and/or their mothers look out for). Some won't even know that their pictures have been used.

The business savvy photographer, however, will know that their copyright has been breached and will almost always take steps to ensure that they get paid by the person or business using the photograph - after all, copyright laws are universal in saying that you must obtain the permission of the rights holder before you can use their work, and that the copyright holder has a right to be compensated (paid) for such uses. They also have the right to refuse a request for their work to be used.

Whilst I can't speak to what other photographers do in such instances, here's what I do.

I do my best to find out an email address or telephone number for the website that's used my work. Hopefully this information is on their website. Sometimes I may have to use a method such as a domain name "whois" search to get contact details. I prefer emails as they offer an unambiguous record of communication.

When I've done that, I attempt to make contact in a polite manner, explaining that my rights have been breached and that, as a remedy, I'll need to be paid for their use of my work. Sometimes the negotiations are quick and painless, other times they can be more laboured. In all instances, I strive to remain professional yet firm. I was brought up to believe that if you lose your temper, you lose your argument.

[Update March 2, 2013] Regrettably, my attempts at direct communication for settlement of instances where my photographs are used have - to put it mildly - mostly been rebuffed. Attempts at being cordial are simply not worth my time and effort when they are ignored, rebuffed or subject to profanity-riddled replies. As of mid February, I adopted a zero tolerance approach to infringements and started referring all cases to my attorneys.

On occasion, no amount of attempts to get in touch personally or negotiate bear fruit. This is where copyright law comes into play and usually the services of a lawyer or attorney are required. For any photographers wondering whom to turn to, I can highly recommend Carolyn Wright's firm PhotoAttorney if your dealing with a matter in the United States. For infringements in the UK, you may be best served by filing a small claims court action which can now be done using the Money Claim Online service, as long as your claim is for £5,000 or less.

A point I'd like to bring up at this time: sometimes, when you've made contact, the person whom has used your photograph may simply offer to take it off their website and, in doing so, believe that's the end of their liability. That's a bit like borrowing someone's car without asking and, when you get caught by the police, thinking that you're off the hook if you just put it back where you found it. Perhaps it's not the best analogy but you get the picture (no pun intended)

Another issue that may crop up is where the company or entity will claim that they were given the image by someone else and had that person's permission to use it and, again, they believe this means they're off the hook. Not so. The only person that can grant permission is the copyright holder, and the liability for any uses rests with the person that used the image. It's akin to your flatmate giving one of their friends the spare keys to your car and saying "yeah, it's okay - go ahead and use it". When you report it stolen, it's the person behind the wheel that gets caught and charged. 

Again, it's not a perfect analogy but should give you a broad idea of whom is held to account in such an instance - especially as, in the joyriding example, your neighbour could be charged as an accessory, whilst copyright infringement liability mostly rests with the end user of a work, (though there are provisions to tackle large scale distribution of works)

Worth a mention also are social media sites such as Twitter, Facebook and so on. If you find your pictures popping up on these services, the simplest route to have them removed is to file a DMCA takedown notification. For Twitter, you can do so by using their automated service here, and Facebook has a similar provision on their page here. Most social media sites, blog hosts and other services that have individual users as the core of their business have similar provisions.

Note: filing a DMCA takedown notice does not mean that you are attempting to close the Twitter or Facebook account of the person(s) whom are using your work - all that will happen is that Twitter / Facebook staff will review your request and, as long as it's valid and in order, they'll remove your material for you.

I hope this has served as a bit of an insight into the minefield that copyrights, image licensing and protecting against infringement can be. It's a complex business but it can be distilled down to this.

If you want to use a copyright work, ask permission from the rights holder first - otherwise, don't use it.

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