Copyright
“Copyright is one of the most critical things a photographer needs to pay attention to… it’s one of those things really easy to ignore but it will come back to haunt you.”
— Paula Lerner from a video for the American Society of Media Photographers
cop⋅y⋅right [kop-ee-rahyt] (noun) – : the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work)
As a news photographer I was largely shielded from the complex world of copyright issues — that is, until recently. American courts distinguish between images made for news purposes and those made for commercial purposes. For news purposes, if a person gives his or her name for the caption it is considered sufficient consent to be photographed. U.S. courts also distinguish between public figures (politicians, celebrities, and others in the public eye) and private citizens. Unlike many countries around the world private citizens in the U.S. have more rights to how their image is used than public figures! Most of my assignments were of public figures and public events.
These days I am doing more work for non-profits, which is considered commercial work. Additionally the media landscape as a whole has also changed and rights issues related to taking pictures and publishing them has become more complex no matter the kind of work you do. For my work with the Gates Foundation in the public schools, children were required to have their parents sign consent forms before I could photograph them. Most schools have consent forms on file (whether parents realize it or not, photo consent forms are among the forms they sign when their child is enrolled). Below are examples of three photos I took for SIPA initially as news coverage of an event. In each case a company — usually the one that produce the product pictured — wished to use the image for promotional purposes. Additional consent forms needed to be acquired from the people in the image and a new contract need to be drawn up outlining how the image would be used. The two people in the image for the Jaeger-LeCoultre watch could not be identified and the company could not use the image, costing me more than $2000 USD.
Internationally, several multinational treatise exist today to protect the copyright of intellectual property and artistic work such as video, audio, text and still photographs. Most notable among these treaties is the Berne Treaty for the Protection of Artistic Works. Originally signed in Berne, Switzerland in 1886, The Berne Convention and other treatise like it guarantee signatory nations automatic copyright protection against the unauthorized use of artistic and intellectual property as well as legal recourse in the event of violation.
Private property is protected with regard to commercial reproduction just like people. Property releases give permission by the owner to publish images of buildings, cars and landmarks not publicly owned. This is particularly important when a building is well known. Without a release, you can’t use the image for advertising or other commercial purposes.
As written above, in the US editorial photographers are often protected by the First Amendment to the Constitution that ensures freedom of the press. When in public people give up their ‘reasonable expectation of privacy’ and it is perfectly legal to take a person’s photo in a public place or if they participating in a news event, Occupy Wall Street for example. For more on your writes (in the United States) as a photographer, here is an outline produced by the American Civil Liberties Union. Taking a photograph is a different legal issue than publishing a photograph and publishing commercially is not necessarily covered by the ACLU outline. Photographers working internationally often do not worry about releases because the likelihood of legal action against the photographer is slim. Laws vary and are difficult to enforce internationally even if the subject did wish to sue.
In truth the distinction between what is commercial work and non-commercial work is itself not always clear. How images are used can morph overtime from one to the other. Images of important news events may not require releases even if later they are sold commercially in a book or as a fine art print. With some images photographers simply gamble that they won’t get caught and then taken to court. At the same time, stock agencies and large commercial publishers won’t even look at images unless there is a release.
No matter how you intend to use the image, if you have the opportunity to get release signed, it’s a good idea. It is equally important to be clear about release issues with clients when shoot assignments for hire. Below are some sample model release forms from the National Press Photographers Association. Many photographers write their own forms specific to their needs. Some photographers simply carry business card-size releases with loose language giving the photographer consent to reproduce the photograph once signed and dated by the subject.
Release form samples
Back now to the issue of copyright. At its most basic copyright protects the photographers from use of images without your permission. Sadly there is an assumption that images online are available for reproduction unless a copyright symbol © (and/or watermark) are clearly displayed on the image. Not so. Exclusive rights to an image automatically default to the photographer unless otherwise stated. Today companies like PicScout use a proprietary software to troll the Internet for copyright violations clients as large as Getty Images to free-lance photographers. Individual photographers can use free tools such as Google Alerts, which scans the Internet for keywords, to look for instances of the photographer’s name — assuming images are properly captioned and tagged.
The problem is enforcing the law even if you know it’s been violated. In his book ‘Best Business Practices for Photographers’ John Harrington outlines the types of infringers you are likely to encounter: the ignorant, small-time blogger who lifts an image from your site or the site of a client for a post; the good client who unwittingly uses and image outside the scope of the contract; the outright theft of an images by a commercial media organization.
In each case you can seek compensation through legal action. In reality, the small-time blogger might not be worth the time and it would likely be difficult to find a lawyer to represent you. Typically a stern email demanding the image be removed is as far as these cases go. But, if the work is registered with the United States Copyright Office and the infringer is a large media outlet, you could win punitive or “statutory” damages of up to $150, 000 for each infringement.
Embedding a copyright symbol in the image, embedding copyright restrictions in the metadata for an images and including copyright language in written contacts are all important and should be part of your photo workflow. In addition to protecting your work from reproduction without consent, copyright can be a weapon with clients who are late to pay; failure to pay becomes a copyright infringement.
Still, nothing carries the weight of a registered copyright with the US government. If you have legally registered the copyright and not transferred it, the registration is considered prima facie ( Latin for ‘at first view’) evidence in your case. A ‘prima facie’ case is one in which the plaintiff can present sufficient evidence to win at the opening of the case. The infringer would have to refute this evidence to win the case, which is highly unlikely if the copyright is properly done.
The Amercican Society of of Media Photographers offers a Step-By-Step Tutorial For Online Registration.
Currently only unpublished images, single published images or groups of images published in a single unit of publication can be registered using the eCO online registration system. If you are not sure if your work is published or unpublished, go here. For details on submitting a paper registration, go here.
The online system requires that you do some preparatory work prior to going online to fill out the application. Currently, Mac users will need to use the Firefox browser. Get more info on browser support and configuration. It’s complex the first time, but then it can become a routine part of your workflow.
When working on assignment or with a client you need to be very clear about the copyright of the images. In many case you are not really selling your work to a client, you are licensing it to them for use. The exact restrictions of this licensing can vary: one-time use right, rights in perpetuity, exclusive use rights. I would charge more for an image that a client wants to use in perpetuity and exclusively than for one-time use rights. Exact pricing depends on the job and the client. FotoQuote ($149.00) software offers suggested pricing for stock and assignment work. I’ve included other pricing guidelines in the resources below.
Often in the commercial world and increasingly in the news world the client owns the copyright to work done for hire. Not only do the own all the final images that you send them but they own your “outs” as well — all the other images you shot. This is true of many editorial jobs at major magazines and for commercial outlets. There is MUCH discussion about this trend in the photo world. Even if you do not own the copyright to your work client organizations should allow you to use the work for self promotion — on your website and in portfolios. If it is work you may want to publish someday in a book or exhibit, this needs to be included in the contract. In some cases clients who do not routinely work with professional photographers are woefully ignorant of copyright issues. Because copyright automatically defaults to the photographer, on occasion I have had assignments when I thought it best to say nothing about copyright issues at all!
Editorial Photographers and ASMP both offer contract templates and tutorials. I have never been presented with or signed a contract that was more an a page long, but the language of contracts with large organizations fronted by teams of lawyers can become very complex very quickly. Don’t be intimidated. Read it carefully. Even if the client owns the copyright you need to be clear about your rights to use images for non-commercial promotion. However, there are exceptions. I recently photographed a young woman in foster care who had been badly beaten by her biological parents before being moved into the group home several years ago. She is now starting college. The client, an organization that runs several shelters for women in New York, wanted to showcase her story as a fundraising tool. Initially the contract allowed me to use any images from the shoot on my website. They asked that that language be removed because of the nature of the story. I agreed. However, once the material is published it is public and if I like the presentation I will ask the publisher, whom I have worked with in the past, to send me a PDF of the final product which will include images and presentation that the client selected for publication.