Image Protection 101

Browncoat

Senior Member
PART I - COPYRIGHT

If you're the anxious type who doesn't like to read walls of text, here's the Cliff's Notes version:

Are your photos REALLY protected by copyright?: In a word, YES.

Let me preface this post by stating the obvious first: I am not a copyright lawyer. All the information contained here is from research and personal experience. This is not a substitute for real legal advice.

I'm constructing this thread because it's something that's never been addressed on these forums in any official capacity. There are tons of posts on these boards about watermarks, copyrights, and image protection from theft. Also threads about rights grabs by photo contests, stock agencies, Flickr, 500px, and crowd sourced photo submissions.

Hopefully this short Q&A will answer any questions you may have about your rights and protections. Furthermore, what rights and protections you may be forfeiting when you upload your photos online to the above mentioned services and/or contests.

Q: What is a copyright?

In terms of photography, it means owning property (your photo). With that ownership, certain rights are granted:
  • to display the photograph publicly
  • to create derivitive works - convert your photo into a collage or pencil drawing for example
  • to reproduce the photograph
  • to distribute the photograph via sale - either in whole or part (such as with limited use licensing)

Q: Who owns an image copyright?

For the most part, the person who pressed the shutter button owns the copyright. The exception to this rule is called "work for hire". For example, a photojournalist working for a newspaper. There is a specific contract that must be signed stating that the photographer agrees to hand over image copyright to the newspaper. This is part of an employer/employee contract. Performing normal photography services for clients is NOT considered work for hire - such as portraits, wedding photography, etc.

Q: Do I have to register my photos with the US Copyright office?

This is where things can get sticky. You always retain copyright protection for your work, registered or not. However, if someone steals your photograph, you can only legally recover actual damages for the copyright infringement instead of statutory damages. The court will calculate damages based on your normal fees, and if any profits were made on your image by the defendant. If you do not normally charge for your work, it would not be worth it to you to pursue damages in court.

Q: Should I watermark my photos with a copyright symbol?

While completely unnecessary, it can help deter image theft. You can prove ownership of the photograph without a watermark, and it's a good idea to digitally embed copyright information in the image EXIF data.

A proper copyright should be displayed as follows: © 2013 John A. Smith
<copyright symbol> <year image was first produced> <full name>

Using your business name or some generic watermark like "Bob's Photography" is just a watermark, and not a copyright notice. Additionally, be sure to use the official copyright symbol and not (c). The word "Copyright" or even abbreviated as "Copr." can be substituted for the symbol.

Q: What is "Fair Use"

Fair Use is a provision in copyright law that allows the use of a copyrighted work without the owner's permission. Fair Use is granted when the use of the material does not infringe on the owner's rights, and is not an exploitation of the material.

Some examples: criticism, comment, educational purposes, news reporting, and other non-profit use.

Q: What can you do if your photograph is used without your permission?

1 - Nothing. It's often not worth getting your shorts in a wad about. Taking legal action is expensive, and often not worth it.

2 - Request photo credit in writing. Your best course of action is simply to ask for credit, and possibly a link to your website.

3 - Write a DMCA takedown notice. More on this in the next section.

4 - Write a Cease and Desist letter. You can request payment for licensing of your image if you would normally charge for its use. Most photographers who do this request 2-3x above their normal licensing fee. While this is not a court-approved practice, it has often held up in document court cases.

5 - Hire a lawyer and file a Copyright Infringement lawsuit. Don't even bother with this unless you have actually registered your images with the US Copyright office, it's just not worth it financially. The current statutory damages maximum is $150,000...but you can only collect actual damages with an unregistered image.

Q: What is the DMCA (Digital Millennium Copyright Act)?

There is a lot of stuff in that thing, but the part photographers need to be concerned with is this: if your photograph is published on a website, you can not hold the ISP (service provider) liable for damages, as they often have little to no control over what actually gets put up on a website. However:

The ISP must remove material from the website if it is protected by copyright.

This is very real, and it does work. I've issued DMCA takedown notices on Facebook for people using my images, and they were taken down very quickly. The DMCA also offers some compensation if the website owner digitally removed the copyright data from your image, up to $25,000.

I would argue that the DMCA is the most powerful tool in your legal arsenal as a photographer, because it's something you can handle yourself without having to hire a lawyer.

Q: I just photographed someone else's artwork. Who owns the copyright?

Not you! If you're in an art museum snapping away, you can not claim ownership. Copyright applies only to the original creator of the material.

Q: Can I register my images with the US Copyright office?

Yes! Do it here. The fee is $35, and you can bulk upload images by filing them all under a single claim. Most pros I know bulk upload images quarterly, or 3-4 times per year.
 
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Browncoat

Senior Member
Part II - Licensing

Above, we detailed how once you press the shutter button, you are magically granted ownership of your work and offered certain rights and protections by US Copyright law. It's your photo...you own it. And unless you expressly give up those ownership rights in writing, you control that ownership until 70 years after your death. You can also transfer your copyright to heirs in writing as part of your last will and testament.

Licensing is what allows someone else to use your photographs. This is how all of those photo contests and image uploading sites are able to display photos. What you need to know is exactly what you're giving them.

Q: How can I license my photography to collect a fee?

I'm not going to touch on professional photography licensing here. It doesn't apply to 98% of the members of this community, and it's way too in-depth to go into in a forum post. Entire books have been written on this subject. If you're interested in learning more, check out ASMP Professional Business Practices in Photography and Best Business Practices for Photographers.

Q: What is Creative Commons?

Creative Commons allows for certain licensing provisions:
  • Attribution - others, even commercial (for-profit) can publish, distribute, and alter your work so long as you are credited
  • Attribution NonCommercial - same as above, but excludes commercial use
  • Attribution NonCommercial NoDerivs - excludes commercial use, and can not alter material
Creative Commons is essentially a non-profit "movement" to provide free images for use and distribution. Flickr is a huge contributor and supporter of CC. From a professional photographer's standpoint, Creative Commons licensing is a bad idea.

The entire purpose of CC is for copyright owners to give up a portion of their rights for the sake of image sharing. Who really benefits from this? Certainly not the photographer who would otherwise be paid for the licensing of their work. "Fair Use" is already interpreted very broadly, and online image "borrowing" or outright theft runs rampant on a daily basis.

Q: What am I giving up when I join an online photo service like Flickr, or sign up for a photo contest?

Rule #1: READ THE FINE PRINT There should always be a Terms of Service when you sign up for this stuff. READ IT. If you've managed to get this far, you undoubtedly have a better grasp on the terminology used, which usually reads something like this:

By uploading Your Content, you grant _____________ (which includes its subsidiaries, affiliates, joint venturers, and licensees) the following rights: a worldwide, perpetual license to display, distribute, reproduce, and create derivatives of Your Content, in whole or in part, without further review or participation from you, in any medium now existing or subsequently developed, in editorial, commercial, promotional, and trade uses in connection with _____________ Products.

_____________ may license or sublicense, in whole or in part, to third parties rights in Your Content as appropriate to distribute, market, or promote such _____________ Products. You also grant _____________ permission to use and authorize others to use your name and any profile picture you provide in association with Your Content for identification, editorially, publicity related to Your Content or the Service, and for similar institutional promotional purposes.

You also agree that _____________ may make Your Content available to users of the Service who may display and redistribute it in the same way that _____________ makes all other Content available.


After everything you've read so far, the above seems pretty damning, doesn't it? The keywords above are "worldwide" and "perpetual"...which means all-encompassing and forever renewing.

These contests and services can't claim ownership of your photograph(s), so they grant themselves an unlimited use license that allows them to do whatever they want with them, including: deny you any compensation, alter your work, re-license your work to someone else so THEY can make a profit on it, and even allow others use your photo(s) without your consent.

In every sense of the word, they are staking claim on the exact same ownership rights you have as the original creator. Furthermore, and even more damaging, is that these services specifically EXCLUDE themselves from any liabilities that may arise from the use and distribution of your work.

Let that sink in for a moment or two. Then, read on:

Q: Uhh...so what does that really mean?

Let's say for example that you take a photograph of a pretty girl, a high school senior who is a friend of a friend. It's a good picture and you want to show it off, so you upload it to Flickr. You get a few comments and/or likes, maybe it's even good enough to be a featured image. Time goes by, and that photo probably gets tossed around the internet for a year or two. Possibly uploaded to a few other sites that you never know about.

Next thing you know, your photo winds up on a poster advocating a local neo-Nazi group. Now this girl's face is identified with being a white supremacist. Her mother is out shopping for new hats one day, sees the poster, and is outraged. The family decides to sue. Guess who is going to be left holding the bag here?

Not the neo-Nazi group, their defense is that they just pulled the image off the internet. Certainly not Flickr, they just distributed the image, they don't actually own it. And they have a nifty and perfectly legal Terms of Service agreement created by high-priced lawyers that holds them harmless from such things. That's right, kids following at home. YOU are going to be responsible for this. YOU are the creator and owner of that image, and YOU are going to be in hot water, especially if you didn't manage to secure a Model Release from this girl.

Also, read about and watch the video of The Stolen Scream. Here is a kid whose simple photo project became a worldwide phenomenon and started appearing on merchandise.

This stuff is real, it happens. Which is why it is very important that you retain control of your photography. "I didn't know" is not going to hold up in court, it's just not a valid excuse when you signed up for a service without reading about what you got yourself into. It just doesn't work that way.

Know your rights, know what you're giving up, and protect yourself.
 
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WayneF

Senior Member
I am no lawyer either, but just to permitt any court dispute about your work, then copyright registration is required. Without registration, it is only your word against theirs about who was the creator of it.

With registration, Library of Congress has a copy of your work filed away with a date on it, which the court can see. The other party needs formidable early proof of any dispute to work around that. A day and night difference in the evidence.

Copyright cost is only about $35, and can include a CD full of images. If there is any monetary concern, we are stupid to ignore registration. Without it, you really have no proof of your prior ownership.


The Library of Congress has a very good FAQ about these questions:
U.S. Copyright Office - Frequently Asked Questions

Click their HOME button at top to access their entry page.
 
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