After 180 years of discussion, ever since Louis Daguerre – the founding father of photography, has taken a shot of ‘Boulevard du Temple, Paris, 8 in the morning’ hardly anybody asked this question again: can a photograph be art? And if yes, what about photographer copyright? Whether and how to protect photos?
© Everett – Art
What about photographer’s copyright?
From the early reception as a mechanical recording, the medium of photography has come a long way to becoming a full-fledged partner of pictorial, graphic and sculptural works, and remained one of the most popular type of visual art. Every day all over the world millions of images are being taken. Is every expression of photo creators protected by law? What about photographer’s copyright?
Photography copyright law varies between national jurisdictions
The idea of copyright law is to balance between the rights of creators and the rights of the public – the former to have control over their artistic work and reap the fruits of their own efforts and creativity, and the latter to use and enjoy this work.
Copyright law varies between national jurisdictions. Particularly between the common law system (in Anglo-Saxon countries) and continental system based on the Roman law originating in Europe. However, some basic criteria for acquiring legal protections do exist. They are established by international multilateral agreements like the Berne Convention for the Protection of Literary and Artistic Works (1886) adopted over the years by over 170 countries, including the United States.
Some questions to ask
Now you might be wondering how to interpret photo copyright law nowadays. Under what category your photograph must fall within to be protected and match the criteria of the copyright for photographers?
Let’s have a closer look at the requirements needed to be met for a photograph to fall under photography copyright law. Are you as photographer protected by copyright?
“Author” in photographer copyright law means a human
The image is a result of creative activity of its author. As an author the photography copyright law means a human. The issue is not as obvious as it seems to be at first glimpse. The reason is the black macaque from Indonesia who took two selfies using David Slater’s camera. The story began in 2011 when the British photographer travelled to Sulawesi to follow troop of the endangered species and tried to tame the monkey with a camera for better artistic result. The famous photo, which immediately appeared in social media and went viral, led him to court where he has been fighting for years over who has the right to the image, sued by the macaque represented by the PETA organisation. What was known for sure – Slater was not the copyright owner of this image as he didn’t push the shutter button. The monkey did not seem to be the copyright owner either… but its rights went under dispute.
But can a monkey also enjoy photography copyright protection?
At the settlement between Slater’s and PETA organisation on behalf of the monkey both parties asked appeals court to drop the lawsuit and vacate a lower decision that found the macaque could not own the photo’s copyright. Photographer agreed to donate 25% of future legal revenue of disputed images for charitable organisations protecting endangered macaques. In the joint statement both parties expressed notion for supporting fight for rights to nonhuman animals.
This example shows that nothing can be taken for granted when it comes to the photography copyright. Most of the cases when there is a dispute concerning Europe or international copyright, when the photo gets stolen, are resolved between humans.
The photo is original to be protected by photographer copyright law
What is the attribute of originality required by copyright photography law? A sceptic could say that nothing is original. We all build from what we have already seen. In legal aspect, to be original an author must create the photo independently. No matter what the artistic value of work is, in the photography industry it is protected by copyright if was not copied from others.
In the era of the mass image usage it is getting more difficult to create an original image. It happens often that some of the images are being used by third parties with some changes and treated as separate, new photos. Photos gained in such way classify as stolen pictures.
What about creativity?
All that is required from photographs, as well as other works of art, is a minimal degree of creativity. It’s always a subject of individual opinion. However for the photo to be considered creative, there are certain criteria. The author has to be free to choose a place and moment of taking photo, frame and angle of viewing, distance from the photographed objects, light or other details. Even if a photo is the subject of a contract with specified suggestions and requirements, still the creator’s invention is necessary.
When do we talk about stolen photos?
What about reportage, and specifically war photography, which is often a result of an unintentional process, the effect of unplanned, decisions? Still, the same rule applies there. As long as it has some creative elements, it’s protected. If the picture is being used by a third party without the photographer’s consent it classifies as a stolen photo.
The controversial case of Gijsbert van der Wal’s photographer copyright
Now let’s leave the battlefield and jump to a museum. Does copyright for photographers apply also in case of the photo of another piece of art? Gijsbert van der Wal’s photo of teenagers looking down at their smartphones in front of Rembrandt’s masterpiece „The Night Watch” taken in Rijksmuseum, Amsterdam caused a stir in social media. The interpretation of the pictures varied. Does it show an unhealthy interest in digital media or deep research for a school assignment, it is an example of a copyrighted work. Why? The image is an expression of the author’s creativity. His ability to observe, and his social sensitivity. „The Night Watch” builds a context for the image, but it is not taking up the whole photograph. If the entire photo would be just Rembrandt’s painting with frames, it could not receive copyright protection for photographers. All original and creative work would be of the painter, not the photographer.
Have some evidence to better protect your photos
If you ever note down the ideas for the images you want to shoot, create a mood board or anything that shows how you came up with the idea for the picture or the progression of your work it is good to have it saved to protect your photos. Having such pieces of evidence give you extra proof in case you need to prove your photographer copyright. In theory, it is possible to fake such evidence but let’s face it – not many image thieves will put so much effort after having stolen a picture which usually takes them only a few seconds. If they do not want to spend time and effort on obtaining copyright in accordance with European copyright law, why would they spend time on creating evidence?
A tangible medium is needed
The creative work starts to be protected in the moment of its externalization. It has to be executed in a way that allows at least one person to know it. No matter if your photo is on paper, canvas or in a jpg file. The expression of the idea is important, not the idea itself. If you only have a great vision for a unique photo in your mind, even if it is shared with somebody, it cannot obtain photographer copyright. You need a tangible medium to express it.
In the majority of countries and according to the Berne Convention, copyright protection is automatic, without any registration or other formalities. However, in some countries (like the United States) registration gives some distinct advantages.
Register your pictures in the copyright office
You may wonder if registering your images in the copyright office bring you any benefits or will you just spent time on doing something that will not pay off? According to the law, your photography obtains copyright as soon as it is created. But when a photographer has their copyright registered it can help solve disputes over ownership or facilitate financial transactions. You can read more about how photographers copyright is treated and structured when it gets registered: here.
Watermark seems outdated
What about the watermark? Why is it not enough to have my photos protected? There is a couple of reasons for photographer copyright to not be protected so well by this method. Watermark has no legal value, can be easily removed, it does not look professional and it takes a significant amount of time to put in on every picture. If you need a broader explanation of why photographers resign from watermarking their pictures to protect their copyrights, you will find here.
It’s protected and it gets stolen!
Now when you know that your work classifies under copyright for photography, you should also be aware that your photos might get stolen. Approaching on your own someone who has violated your photographer copyright can be tricky and time-consuming. Our experience shows that individual attempts to get back the money from your stolen photos never brought significant results.
PhotoClaim’s history is bound to the story of its founder – photographer Nico Trinkhaus
This is actually how the idea for PhotoClaim was born. Nico Trinkhaus, the founder of the company, was in the same position. When he realized that his pictures were getting stolen and tried his hand at getting back the damages on his own, he soon realized how much of a challenge can this became. Having created a strong connection with lawyers boosted the fight for photographers’ copyright protection at a different level. Over a couple of years, a strong community of photographers who used to have their photos stolen was created. Now they do not need to worry about the protection of their images anymore, we do it for them. Would you like to join the community of happy photographers? All you have to is fill this short form. Want more info about how we work: you will find it here. In case you still have some questions, feel free to send us an email at email@example.com. We look forward to welcoming you in our community!
Author: Kinga Kijak-Markiewicz