This article was originally published on November 10, 2020.
As a photographer, professional or otherwise, it can be frustrating to find out that someone used your copyrighted images without your permission. A photo infringement. Unfortunately, this happens daily to hundreds, if not thousands, of photographers. The ease of image sharing online and the general lack of understanding about image copyright and photo tracking means that copyright infringement is rife worldwide. Find out what can be done about the infringement of your rights.
At PhotoClaim, we work to track our clients’ pictures on nearly every continent. We help them prevent image theft and get paid fairly for their image use. Through working with hundreds of photographers, we have found that there are some common misunderstandings amongst creative professionals. Not everyone is aware of what classifies as an infringement of rights when it comes to copyrighted pictures.
To help clear up some of the confusion around copyright on pictures, we have put them together. Here is a list of the 10 most common things that you might not know they classify as an infringement of your rights.
When a fellow creative gets inspired enough by one of your photographs that they decide to use it in the creation of their own art it can be flattering. They obviously regard your work highly. However, it is also an infringement of copyright law and infringement of your rights.
There is often confusion around this particular nuance of image copyrights. There are indeed some instances when they deem derivative work as no infringement. Cases, such as that of photographer Patrick Cariou vs artist Richard Prince, have seen courts rule in the favour of the artist – the creator of the derivative work. Though this kind of case is rare.
Copyright law states that copyright also protects against derivative works. So, if someone uses your image as a part or base on which to create what they deem to be an original work this should not stay unnoticed. They could be opening themselves up to copyright infringement penalties.
Here is one of the common beliefs that we often come across. 10% or 30% alteration of an image still classifies as an original work. This is not actually true and can lead to legal action. If you have not given explicit permission for your image to use it, then it classifies as an infringement of your rights.
Selling prints of your photographs is a great way to build your brand as a photographer. It is also a handy way to supplement your income. Selling your prints does not mean that you are handing over any of your copyright though. Just because someone owns a print of one of your images that does not give them the right to reproduce that image in any way.
It can often be the case that the proud new owner of an impressive artwork (aka your photograph) decides to share their delight. They do that by posting an image of the said print on their social media. Technically, this action is an infringement of your rights. But it is up to you if you request that they remove the image or accept it as free publicity instead.
They might also decide to create copies of the print to share with loved ones or even to sell. Again, this is not allowed and people rarely realize that they should check copyright rules when they invest in art and imagery. To avoid this, include a polite note with every print. Explain that whilst you are grateful for their patronage you would appreciate it if they respected the copyright of the image purchased.
Your photographs get copyright from the moment that you create them. Literally from the second that you click the camera shutter. Publishing them on your website portfolio or social media does not diminish your copyright. Nor do you have to add the copyright symbol to retain the copyright.
Unfortunately, a lot of photographers find others use their images for unauthorized merchandising. Printing companies, online and off still quite often take images found on the internet and reproduce them. Your pictures may appear on T-shirts, mugs, canvas prints, and similar products. Then they sell it, without you reaping any of the rewards.
Much of the time it is a misunderstanding about the copyright status of an image. Sadly, there are times when they use images even though the printer knows that the photos are subject to copyright. They would rather take the risk of being caught by a picture tracking service than ask permission or purchase a license for using copyrighted photos. Ironically, when caught, it ends up costing them a lot more in infringement fines. They would pay less if bought a license in the first place.
You would be forgiven for thinking that it is impossible to prove that someone used just a segment from one of your photographs. You would also be forgiven for believing that you have no right when this happens. The truth of the matter is that you have every right to request compensation. Even when they use a small percentage of your image.
Whether you spot a snippet of your photo in a marketing campaign, an album cover, in a magazine, or somewhere else entirely, you are still within your rights to request payment for use. Make sure you retain all originals of your photographs to help prove your case.
You might have experienced an incident similar to this. A person or company using your image might have told you that they ran a check for copyright and the didn’t see your image registered. This is a common line of reasoning used in an attempt to avoid payment but is irrelevant. The copyrighting of an image happens when it is created and not when it is registered. In fact, it is not necessary to register copyrighted photos at all.
Marketing is an essential part of any photographer’s business. Where better than on the increasingly popular forms of social media? Using a platform like Facebook, Instagram, LinkedIn, Twitter, even TikTok is a great way to grow your brand and showcase your talent for photography. We have worked with a lot of photographers. A lot of them incorrectly believed that once they shared a photo on a social media site that they were forgoing all copyright.
Some social media sites do express a right to use any images published on their site for commercial purposes within their terms and conditions. Let’s be honest, how many times have we clicked ‘yes, I agree to the T&C’s’? Without actually reading them… Don’t worry, most people don’t read them. However, though the terms and conditions may contain this clause, it does not extend to everyone that uses the site. Just because you share a photo on a social media platform that does not mean that it is then free for anyone and everyone to use. Commercially or otherwise.
Photography exhibitions are an exciting opportunity to showcase your work and to reach potential buyers. Since Charles Thurston Thompson held the first-ever photography exhibition in 1858. People have flocked to see the creations of photographers in their national and municipal galleries.
Though your work may be publicly on display in a gallery, this does not permit photographing it for any use other than personal use. Many galleries and museums have started to relent on their existing strict and traditional rules. They forbid visitors from taking photos of exhibits. This is mainly due to the huge popularity of smartphones and digital photography. Both of which make it near impossible for a gallery to enforce no-photography rules. The use of visitor images from an exhibition is still a grey area. For many though a photograph of an exhibition could be deemed as a derivative work and therefore infringe the picture’s copyright.
When a gallery exhibits your work they should do it with the explicit direction that the copyright remains with you. Not the gallery. Granting permission for the gallery to use your work to advertise the exhibition is up to you as the owner of the copyright.
With all the confusion online about how to correctly use and credit images that already exist on the internet, the rules around copyrighted pictures have become somewhat muddied. For example, have you ever found that an image that you published on your website gallery has suddenly appeared on someone else’s website or blog? And they published it with full credit given to you but not your permission? This happens a lot because of a misled, but unfortunately common, belief. That belief is that as long as someone (a) already published online and (b) credited an image to the photographer or source then it is completely acceptable to use it this way.
Through our picture tracking services, we have found and corrected many of these types of copyright infringements. For the most part, the mistake is innocent and made because of the confusion about copyrighted pictures. To lessen the chances of your images getting used this way, ensure that you include details about the copyright rules on your website.
Digital stock libraries have evolved rapidly in the last few years. Once it was as simple as having to have a paid account to view and download images for limited use, such as Getty. There are now stock libraries which allow multiple downloads. They also offer free image access and have little or no follow up as to how that image is being used i.e Pexels or Unsplash.
For the most part, all library types require the photographer’s permission to include any of their images. Some libraries are not as vigilant as others when it comes to checking who owns the images being uploaded to their sites.
With the growing availability of free stock photo libraries comes the risk of images used in ways that you have not expected or permitted. Even if you upload your image for free use on a stock site then your rights may be infringed. Despite the best efforts of the library, some users do misuse stock images on merchandise or by implying brand endorsement through the use of an image. In these instances, they infringe your copyright.
Curious about stories when photographers found their pictures on the stock markets when someone used them without their consent? We have something for you here.
This is a bit like the chicken and the egg scenario. Some believe that a model owns the copyright to any picture of themselves. While others believe it is the photographer who owns the copyright.
When you take a photograph of a model, that model does not then have the automatic right to share the image. It is definitely the photographer who retains the picture copyright. If the model wishes to use the photograph, then they must have the explicit permission of the photographer. If the model uses a picture you did not allow if is the infringement of your rights.
However, the photographer does not automatically receive the absolute right to use or distribute the image as they see fit either. What happens in this instance is that a model retains the right to deny the use of the photograph taken of them if they are unhappy with how it is going to be used. For instance, if a photographer was planning to use a photograph of a model in a publication which the model felt would misrepresent them, then the model can prevent it. To avoid this scenario, the best practice is to have all models sign a release every time you photograph them.
Your reputation as a photographer is invaluable as a good reputation is beneficial to retaining clients and gaining new ones. For fine art photographers, a good or bad reputation could be the difference for you being selected for an artist residency or exhibition. Protecting your reputation is therefore paramount. Achieving a good reputation is partly to do with how and where your images are used.
Monitoring the usage of your images is not that easy and obvious to do on your own. We have been there as well. Did you know that a photographer who had his rights violated created PhotoClaim? Getting back the money that he deserved from his copyrights turned out to be impossible without solid cooperation with a lawyer. Soon he realized that there are more photographers who would need similar help and hence set up PhotoClaim
Avoiding any infringement of your rights is nearly a full-time job. Being a photographer, you do not necessarily want to spend your energy on doing that. All you have to do to have your rights protected is to sign up here for free.
When you come across one of your used photos and are unsure of your rights, contact us at firstname.lastname@example.org. Let us know rather than letting your images being stolen. Help other photographers protect their rights. Do so by clearly communicating your experience and options to seek help on all of your available channels.