Article

Copyright and Photographers

With the increasing use of the internet and the fact that many photographers are using online storage facilities to store their creations, copyright is becoming more of an issue for photographers. It is so easy today to get your work online whether it be via submitting to picture libraries, having your own website, using free storage websites or network websites or just merely submitting images to competitions, magazines or newspapers. With the age of digital, it is also so easy to create images and many more of them, as we don't have to worry about the cost of processing them anymore, only how much we are prepared to spend on extra storage media to store them all. But just as it is as easy for us to put our images on the internet, this medium also means it is just as easy for our images to be exploited by others. It is also becoming noticeable that when entering competitions, or submitting images for news items that companies are becoming more blatant about asking you to give over your rights to an image when submitting to them, so that they may publish and do with them as they will, without reward.

Photographs are protected by copyright just like any other piece of creative work, and is protected in UK law by the Copyright, Designs and Patents Act 1988 and some EU directives that came into force in 1989, and under these acts they come under the classification 'Artistic Work'. The overall policy of this legislation is 'to prevent the unauthorised copying of material forms of expression resulting from intellectual exertions of the human mind' ... To put this simply it prevents the copying of an actual piece of work, but not the use of the information, thoughts or emotions expressed within it. Copyright not only protects you against unauthorised reproduction of your photos, but also entitles you to economic benefit and seeks a fair balance between you and the user.

Copyright is established from the moment the image is created - the only qualification is that it has to be original. It is a right granted to the photographer under the law and it comes into force immediately. These rights are then held by the photographer through your lifetime and for 70 years beyond your death, when it is transferred to your heirs. Beyond 70 years it becomes public domain. This is a little over-simplified as with all laws there are exceptions and because of some EU directives, which came into force in 1996, extending the period from 50 years to 70 years and therefore bought some items back into copyright, known as 'revived copyright', and also special protection for non-European artists where their protection extends to the length of time it is protected in their country of origin.

As with any law there are always exceptions. If, as a photographer, you are an employee and the photos are taken for the employer or on behalf of the employer then the copyright of these photos belong to the employer, unless you have signed an agreement to the contrary, or if your employment is as a journalist for a newspaper, magazine or similar publication where the copyright is split. In this case the employer retains the copyright as it relates to press publication, while for all other uses the photographer holds the copyright. Another exception is where as photographer you have signed an agreement which assigns the copyright to another party, so for example if you have been commissioned to take photographs for someone or a business, and as a part of the assignment you have assigned the photos to the commissioner then they hold the copyright on those images. In all other cases you retain the copyright, if you have been paid for your work the payment is usually for your time and typically an allocated number of images, so the copyright of the images remains with you.

So as an illustrative example lets take the case of a wedding photographer. If you are employed by a wedding photography business to shoot a wedding, i.e. they pay you a salary and National Insurance and this is your job, then the copyright of the images taken for that purpose will be the property of the business and not you as the photographer. On the other hand if you are a freelance wedding photographer and paid by an individual to take photos at their wedding then the copyright remains yours, they merely get copies of what you have agreed and if they require further copies of these images then they should negotiate a subsequent rate.

The copyright owner has the exclusive right to authorise the reproduction of a his work in any medium by any other party. Any reproduction can only take place with the copyright owners consent, permission usually being granted with the payment of a fee.

The law also contains provisions to deal with both moral rights and paternity rights. Moral rights deal with both the photographers rights and the right of the individuals in the photo. Your moral rights remain with you regardless of what happens to the copyright, and they include: the right of integrity and therefore not to have your work subject to derogatory treatment, this can include distortion or mutilation, the right to be identified as the photographer whenever it is used, the right of privacy for photographs commissioned for private purposes, the right not to have work falsely attributed to you. Where as your 'paternity rights' deal with the right to be identified as the photographer and entitles you to a reasonable prominent credit whenever your work is commercially published or exhibited. Although the right to integrity is automatic, the other rights are not and must be dealt with when granting permission for your photo to be used. These rights last as long as the copyright of the work, although the right not to have work falsely attributed to you expires 20 years after death. These rights also do not apply in some circumstances such as when published in a newspaper, magazine or similar, or contributions in an encyclopaedia, dictionary, yearbook or collective work of reference.

Although many like to protect their photos against any infringement of copyright there are some aspects of the copyright law that deals with 'fair dealing' or 'fair practices', these are situations when copying of protected material is permitted without the need to obtain permission from the copyright holder. These are:

• Copies made for individual research/private study.
• Copies used for criticism/review of the photograph itself, provided accreditation is included.
• For education use (although there are strict rules on how the copies can be made).
• Libraries, archives and museums may copy your work to facilitate individual private study or to replace an object in their permanent collection that has been lost damaged or destroyed.
• Advertising the work for sale.
• Incidental inclusion, for example if your photo was accidentally captured in another photograph.
• Public administration such as evidence in court.

If you suspect that someone has used your photo without permission, the first course of action would be to contact them and point out that they did not have permission to use it. This can be dealt with in one of two ways, you could merely decide what you felt was a reasonable fee for them to have paid you and send them an invoice, or you could ask them to reimburse you with what they felt was a reasonable fee for its use. If this is an action that you wish to pursue, then you should do it straight away and see how they react, discussions may have to take place to clarify things, documents may have to be produced to try and prove something, but keep copies of everything. If what you consider a satisfactory outcome is not forthcoming and the process becomes protracted and delayed and you think they are trying to purposely get out of paying you anything then the law as it currently stands does allow up to six years for you to seek legal remedy for an infringement of copyright, but beware if it is a company you are dealing with as they come and go and may not be around in six years time.

If you find what you think is one of your photographs on a website, firstly consider if you mind it being there, if you do then you need to contact the website pointing out that you feel they have used one of your images and request that they remove it. Many images get submitted to public domain sites and to other websites and it is very easy for a web publisher to use one of these images as they have no means of knowing who the original photographer was. If its a large company using the image in a commercial way for example an advertisement then you may be able to negotiate a fee for it's further use, while with smaller and non-profit websites they will not have a budget and will be able to find an alternative picture elsewhere or just do without it.

Photographs that you have published anonymously or using a pseudonym such as on websites or online storage systems which you have not marked, or you have issued photos in the past and haven't taken the time to mark them so that you can be identified as the photographer then currently the copyright law still protects you. The period of protection is 70 years from the end of the calendar year in which it was first 'made available to the public', or if published prior to 1996 then it's protected for 50 years, unless after reasonable enquiry they are able to identify you then the normal 70 year rule after death applies.

However this may not be the same in the future as the use of metadata within digital images becomes more widespread and standardised. There are those within the picture business arguing that if in image does not include metadata and therefore they are not able to identify who the photographer is then those images should not be protected under copyright law and should be considered as available in the Public Domain. This would require a change in the copyright law to allow this, and whether anything comes of it or not it is probably a good idea to make sure all images you place on the internet at least do contain your copyright details for future possible changes.

So how does someone know that the copyright belongs to you, do you need to register your images so that potential users can find you and ask permission to use it. The short answer to this is NO, the obligation is on their part to find you, of course you can do things to make it easier to find you such as making sure your images are correctly marked with your details, but there is no central registration system or any legal requirement for you to have to register them anywhere, the copyright comes into force immediately you take/publish the photo. You may come across on the internet some sites mentioning registering your copyright, usually by companies and organisations, like the UK Copyright Service, who are asking you to pay an annual fee to register with them, there is no official registration system in the UK and it is not required under UK, European or International law, and as long as you have marked your images correctly, so that you can be identified and contacted, it is not in my opinion something worth considering, but the option is there for those who may want to.

Marking Your Images

Copyright is automatic once you create a work, and you don’t have to mark it, however there are a number of  reasons why you might like to.

1. If someone wants you use a copy of your work, and they cannot identify who to approach they sort of have half an excuse to just use it and feel that probably you won’t spot anyway. If you do they just say they thought it was pubic domain and while in theory you could take an action against them in practice the legal costs and time involved would not justify it. If they can identify who has the copyright then they have no excuse, and most would not risk just using it.
2. Someone may like your images and not being aware who created it feel it should get wider coverage and put it on one of the image sharing websites, then others who use it could justifiably argue that they got it from a public domain website.
3. Someone may create a near copy, or have taken a similar picture and it can be difficult to identify if this is your image or not.
4. You yourself may get challenged by others who feel you are using their work, while if it is and always has been clearly marked as your own, this is less likely to occur.
5. Your work is an advert for you, but only if people can identify it’s your work.

So what is the best way to mark your images and is there a standard format that should be used. A copyright notice is a piece of text which accompanies the photo and expresses the rights of the copyright holder. The purpose of the notice is to let people know that copyright exists and to make it clear who the copyright holder is, but there is no standard format as such. It is recommended however that a format similar to this is used: Copyright Year of Publication Copyright Holders Name - so for example  Copyright Ó 2008 camera-images.com.

Marking your images doesn't mean you have to physically mark the image to destroy it, adding copyright information can be done in a number of ways.

You can mark the front of the image itself, by putting a small copyright notice somewhere on the image that doesn't distract from the image itself. You will find that many of our images on our limited edition website contain an element of text on the picture, this is done in a way that does not take away the focus from the image, its usually small, in the edge or corner and often we lighten it or part merge it with the background so that unless you look for it its nearly invisible. This is not intended to stop people using an image and of course could be just trimmed off.

For images that are going on the internet you could do what some others do which is to add a watermark (semi-transparent text) across the centre of the image, that makes it impractical for anyone to use the image, but I feel it also destroys the appeal and representation of the image, and therefore could be counter productive. A more effective way is to produce an image at just 72dpi and of a size that would not be useable for most applications.

Another alternative for digital images is to use EXIF Data, or Metadata. This is textual data which gets digitally embedded in the file. Most editing software allows you to add this information into the image or attach a file that accompanies the image and on some of the Nikon DSLR cameras you can set them up within the menu areas to put in base information as you take the images. Currently though there are issues with this method in that the metadata doesn't always travel with the images, some software packages put this information in separate files, which can become separated when copied. It is also not standardised so the information that can be included or is readable varies from manufacturer to manufacturer. There are groups being formed to look at this issue and to come up with a standardised format and there have been reports of the need for all images to be marked in this way in the future if the photographer wants to make sure they get reimbursed for the photos use.

On printed images you could put the details on the front, back or in accompanying documentation depending on what it is going to be used for.

On prints that we sell we don’t put anything on the image itself, but do have a title bar and information below the image. Prints that we produce to use at exhibitions and for sales portfolios etc,  have a note under saying that they are ‘not for sale’ but this is also superimposed in a smallish size type on the image and merged with the background in two places, so that when people initially see the image they don’t spot it. It just means that these images, even if trimmed, cannot get sold as limited editions. We tend to put a website address rather than a physical name in the images, as this then also entices those who do spot it to look at our other work.

Some photographers sign prints, but we feel this distracts from the image and there are problems about the life of different inks and effects on material. Wedding and portrait photographers often either rubber stamp or have stickers made that are put on the back of photographs. If you do this it’s a good idea either to get a local rate number that you can move with you easily, or put a web address rather than a physical address and telephone number that is likely to go out of date.

Of course images being used for other uses, i.e. like being sold through a picture library that will then get sold on to be included in magazines, on products etc the copyright notice may need to be extended to also include a statement that sets out how the image can be used. This statement will set out what permission you give the user to use the photo. How you go about this depends entirely on what you want the restrictions to be, you may want to permit certain activities, or withhold all rights, or require the user to apply for a licence. If you decide to have restrictions then add the statement as a sentence after the copyright notice. Some areas of restriction to consider include, the right to copy, duplicate or reproduce, selling, hiring, distribution, commercial or personal use, rights to be identified as the photographer, licences.

Remember copyright notices should be straight forward statements, the point is to state your wishes clearly. Some example statements are:

• All rights reserved.  A simple cover all statement, it means that you withhold all rights to the maximum extent allowable under law.
• Permission granted to reproduce for personal and educational use only. Commercial copying, hiring, lending is prohibited. This kind of statement can be of mutual benefit as allowing reproduction may help to promote you.
• May be used free of charge. Selling without prior written consent prohibited. In all cases this notice must remain intact. By specifying that the copyright notice remains intact you ensure that all copies will identify you as the photographer.

Of the photographs you take you will want to use different copyright statements and different licences for different photos and it is a wise move to keep your options open, not to restrict yourself to once particular licence method as this will restrict the potential income you could make. But one thing is certain irrelative of which licensing method, or marking method you use, the copyright of the photograph is yours, and as the copyright owner you have the exclusive right to authorise the reproduction of a your work in any medium by any other party. Any reproduction can only take place with your consent.

Disclaimer: We are not lawyers and therefore this article has been put together based on our understanding for looking at the various sources available and what we have read elsewhere, and talking to many people. Within this article there are links to various other websites that may be able to give you more help or at least allow you to work out whether you need more advice.

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