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If you know nothing about Copyright, start here...
Copyright law restricts the legal right to copy photographs to those who have permission. Permission can only be granted by the copyright holder or their agent.
'Copy' in this context includes making prints, publishing or distributing photographs in any medium, or making copies of files and distributing them electronically. It includes plagiarism, the taking of a photograph based on another. If the copy resembles the original image closely enough to be recognisable as a copy of the original, copyright has been infringed.
Thanks to international agreements, copyright law is broadly similar in most countries of the world.
The original intention of copyright was to provide a means to ensure the public had a copious supply of 'good books' to read, and this principle has been extended to other forms of creative work such as paintings, music, designs of buildings and photographs.
The early proponents of copyright took the view that it was not sensible to rely on wealthy individuals to find the time and generosity to do creative work and donate it to the public. It limited the character, quality and quantity of work created, and there needed to be another mechanism capable of supporting the creative work of 'ordinary men'. The choice was between patronage (which we would nowadays recognise as employment) whereby the patron would acquire ownership in return for sustaining the work of the author, and copyright, which created proprietorial rights for the author so that an income could be realised from the work itself.
This principle has remained unchanged, although the world has certainly altered a great deal. Copyright is now widely perceived as a tool of monopoly and price control in the hands of large corporations, but for individual creators there remains no alternative mechanism of fair reward.
As soon as you place your work on the public web, you lose the innocence of not having to pay any heed to copyright. Your work may be used for any purpose unless you take care to control what others may do with it. There are no effective physical means to prevent anyone who can see your images from copying them, perhaps using them commercially or on sites and in ways that you personally disagree with or find abhorrent. Your copyright is the only tool you have to restrain such things.
Copyright is unfortunately deeply tedious and dull, and the temptation is to allow any use without considering the possible consequences. Some people have utilised the Creative Commons licenses to formalise their generous wish to share to an extent that they find acceptable whilst reserving rights they wish to retain. This is certainly worth considering, but be aware that Creative Commons licenses are complicated and consequently widely misunderstood even by some of the people who use them. They are also interpreted quite often as a sign of someone who is unlikely to enforce their rights, so may be safely disregarded. All told, it's simpler to use a copyright statement and require people to ask for permission.
Ultimately you have to decide whose photos they will be. They are yours by right, but unless you take care they will be taken from you by opportunists who have no interest in you, and whose only interest in your work is how much profit they can make. Any photograph that is good enough to use commercially or steal is not worthless.
Copyright is automatically conferred by making the photograph so there is nothing to do. This is the standard position in most countries of the world that are signatories to the Berne Convention.
Some countries operate copyright registries where you may additionally record your ownership of copyright with the benefit of additional legal protection. EG registration with the US Copyright Office allows much higher punitive damages to be sought from infringers.
The UK does not currently operate a registry. This may change. Registration was a key proposal of the 2007 Gowers review of intellectual property law.
Copyright expires 70 years after the death of the author. At that time the work becomes public domain and available to anyone to use without permission or payment.
However, even if a photo is sufficiently old for for the original copyright to have lapsed, agencies that have gone to the trouble of scanning old work often assert that the electronic version is a new work and that they own copyright. So the age of the photo is not a reliable indication of copyright status.
The author of a photograph automatically owns copyright unless they have created the photo in the course of their employment, in which case the employer owns copyright. In either case copyright can be assigned to someone else by agreement, but the assignment must be in writing.
'Moral rights' are certain legal rights under the 1988 Copyright Designs and Patents Act. They include
- The right to be identified as the author, eg byline credit
- The rght to object to derogatory treatment of a work (but only, curiously, where the author has been identified)
- The right not to have work falsely attributed, ie someone else's work appear with your byline
- The subject has a right to privacy in certain photographs, eg photos taken for private or domestic purposes may not be distributed, published, broadcast or exhibited to the public without consent. This includes weddings, private portraits etc.
There are very significant limitations to the rights to be identified as the author and to object to derogatory treatment of work:
- Moral rights do not apply to photos made for the purpose of reporting current events. Whilst news is clearly exempt of moral rights, almost any journalistic photography may be ineligible. This get-out clause and the following one were late additions to the legislation c/o lobbying by newspaper and magazine publishers - the very areas where these rights would be most significant.
- Moral rights do not apply to work published in newspapers or magazines
- Where they may apply, they must be asserted to do so by the author, usually by means of a statement such as 'Full moral rights are asserted by the author in accordance with the 1988 Copyright Designs and Patents Act', or even 'Byline obligatory'.
- Moral rights may be waived (in writing) but cannot be assigned to another party. Rights-grabbing clients often insist on a waiver so even the right to a byline is lost.
- There are limited legal sanctions for violating moral rights. A complainant may apply to the court for an injunction to prevent violation, but there are no penalties available for failing to print a byline. However photographers own terms of supply can stipulate penalties that are enforceable as contract conditions.
An included work is someone else's copyright material that appears in your photograph. Provided the inclusion is incidental, this does not infringe. The difficulty is deciding whether incidental or deliberate copying is involved. The courts use the question 'is the copy a substantially new work?' to decide this point.
This all means you have to be careful when photographing. Putting someone up against a background of a painting might be unwise, unless the painting truly is an incidental inclusion. Buildings and scupltures are copyright, but as public works they may be photographed, although a sculpture in a private location may not.
A further consideration is the inclusion of registered trade marks such as company logos. Again, incidental inclusion is OK, but a straightforward photo of a logo may constitute an infringement. Some companies are very aggressive, the London tube 'roundel' being a famous case in point. Many stock libraries exclude any image that includes the roundel whether incidentally or not, thanks to threats of legal action.
There are various ways in which a photograph or other artwork may 'derive' from another. The most common example is montage, where elements of multiple images are combined to make a new but 'derivative' work.
Compositing in this sort of manner is very routinely done by photographers and graphic designers. The new work will be copyright of its author, but infringement will arise if permission was not obtained for inclusion of someone else's copyright imagery. The owner of the original can then sue for damages or even claim joint copyright in the new work.
Note that you do not have to use an entire work for this to arise, even small elements cut from the whole are problematic. Nor does modifying those elements avoid problems unless they have been altered to the poiint that they are unrecognisable. If recognition is possible, it's an infringement.
Plagiarism, where a new work is based wholly or in part on someone else's copyright work, may also be a form of derivative work. Again, recognition of the original is the key factor.
There are not at present any special fair use provisions for derivative works in UK law, although legislation to permit fair use for the purpose of parody is expected, having been recommended by the 2007 Gowers Report
As the owner of copyright of your work, nobody may use your work without permission. In recent years, publishers and competition organisers very frequently embed clauses within terms and conditions that take unjustifiably extensive rights in any work that you submit to them. It is common for such clauses to assert blanket permission for any commercial use including the ability to sell on to other publishers or exploit in other media, and to waive your moral rights to a byline or to object to misuse.
Despite such T&C nearly always asserting that 'you retain copyright in your work' effectively the rights taken are as extensive as copyright itself, They just steal the economic value. Always read T&C carefully so you know exactly what you are agreeing. Also be on the alert for liability clauses that make you legally and financially responsible for actions of the publisher that are beyond your control.
The reason for rights grabs is of course that the 'grabber' wants the photograph to be their financial asset, not yours. Amateurs who don't think of their work as having monetary value should consider that it certainly does have value to the 'grabber', and they are effectively demanding a blank cheque. This is generosity they would be unlikely to bestow on a needy stranger in the street, let alone well-heeled corporates and their shareholders. Professionals should recognise that their work is the only asset they will ever own, and giving it away c/o 'rights grabs' is a fastrack to insolvency in the same way that 'Buy One Get Twenty Free' would be a dumb way to run a shop.
It is a legal framework for intellectual property, so inevitably it is a mechanism to regulate who owns what and who pays whom. Some would argue that this makes copyright law itself undesirable because it stops people sharing freely. However the implication of sharing freely is that nobody will bear the costs of creating the work except the creator. And that is exactly why copyright was oriiginally introduced, because without some means of ensuring reward, only the rich could afford to create anything and it was believed to be unhealthy to rely on the rich alone for creative works.
The situation has changed considerably since. Because of digital communications copies can be stored and circulated at near-zero cost and in vast numbers. And the explosion of interest in photography means that a huge population of photographers is busy creating and sharing. But still there are limits to what amateurs can achieve in their spare time and out of their own pockets. If we want photographers to take personal and financial risks, to cover subjects that require more depth than just weekends and holidays, then there has to be money involved, and copyright as a framework for the market seems inescapable.
Copyleft is the generic name for licensing schemes that permit some free copying, adaptation or derivative work provided the copy is also issued with an identical licence.
Note that copyleft is not in any sense the opposite of copyright, and seldom means the same as 'public domain' (where no copyright exists). Copyleft licences actually rely on copyright for their enforceable limits on what may be done. For instance copyleft usually forbids copying for commercial purposes and without attribution. Breaking the terms of a copyleft license is no different from any other infirnging use.
Copyleft licensing is most commonly applied to software, where Free Open Source Software has proved highly successful, typically using the GNU General Public Liicense. This allows software to be freely used, improved and distributed by users but disallows commercial exploitation or rebranding. Revenues are not derived from sales but from indirect services such as installation, training, and consultancy.
There are attempts to adapt copyleft principles to writing and artistic works such as photographs, Creative Commons licenses being the best known. The intention is to encourage sharing without necessarily relinquishing economic rights or bylines. However a major problem is that rather often neither the terms nor consequences are well understood by photographers or photo users and clients. Creative Commons licences are widely interpreted as meaning the copyright user has little interest in asserting the terms so are relatively safe to steal. This perception is reinforced by an almost total lack of case law against infrinngers.
Creative Commons and other 'share-and-share-alike' licenses are sometimes called viral licenses, because they require anyone who creates a derivative work to apply an identical license to their new work. Sharing with others is thereby perpetuated.
Your photographs are your work and they are your asset. If you work as a professional photographer they are your only asset. Copyright is your title to that asset.
Make no mistake, the reason others want your work is so that it benefits them. For non-commercial use this may be acceptable, you may choose to donate your work to support charities or other causes you approve of. But it is difficult to imagine why anyone would give away their work to commercial entities whose only real interest is using your work to make money for themselves. If you license your work for a fair fee, it benefits you as well. But if you assign copyright or give a free license, you must be one of those rare people who hand out wads of money in the street to strangers who are sometimes better off than you are. Who, by the way, would not think about supplying you with free goods and services just for a credit.
If you really have no interest in money and think charging for use of your work is somehow vulgar or distasteful, ask for it anyway and then donate to your favourite charity.
Please remember that even if you do not care about copyright, others do. If you allow free use of your work it undermines every other photographer who wants or needs to retain their rights. It sends a message to clients that photographs are valueless and photographers are gullible. The law reforms that gave authors control of their own work were hard won, and are an ongoing battle to maintain; commercial publishers would like nothing better than to be able to use photographs without payment or permission, as their constant lobbying for free use of 'orphan works' demonstrates. Moreover they commonly disregard assertions of the moral right to be identified as the author.
Another major issue is that of control of how the image may be used. If you do not restrict use, you have little practical influence on whether your work may be used in ways you consider objectionable.
Finally, also bear in mind that photographs can change in significance and value unpredictably with the passing years. What may seem of little interest today may be special and far from commonplace someday. Whose photographs are they anyway? Yours, so keep it that way.
If you pay for admission you create a contract with the owner, and terms of admission are often used to restrict or take rights in your photos. These are often stated in small print on the ticket itself so you cannot claim you were not made aware of the terms of the contract. Motorsport and other sports venues are particularly fond of these conditions, sometimes claiming all intellectual property rights of anything you create, but they crop up at music venues and all manner of other places. They are open to legal challenge, mainly on the grounds that they are unfair and/or that the terms were not stated before payment. It's worth remembering that a copyright assignment has to be in writing. But a court would ask why you didn't immediately return the ticket and ask for a refund if the terms were unacceptable. The safest course is to boycott such venues - and report them in the forums here, so others can do likewise.
How you can protect your work
A few cameras allow copyright ownership information to be included in EXIF data that is automatically attached to files at the time of shooting, but this is not a common feature and is not where most people would expect to find it. If it is not a menu option in your camera, you can't do it.
The standard location is within IPTC metadata, specifically the copyright field. This will cause Photoshop to flag the image as copyright. It is also a good idea to include ownership information in the main "description" field used for captions, because this is the only field that many publishers ever look at.
Unfortunately IPTC is not written in camera, but has to be added during editing using software that understands IPTC. This could be Photoshop, for example, or a raw processor, or a digital asset management program - whichever suits your workflow. But beware that much lower-end photo software has no ability to read or write IPTC, and in fact erases all IPTC metadata when saving the file.
No statement of copyright ownership is required by law, and its absence does not weaken the protection of copyright. But it is still a good idea to include one in order to counter someone arguing that they were unable to find out the copyright status of the work or whom to ask about permission. Images whose rights status and ownership cannot be determined are called 'orphan works'. The copyright statement should appear on the same page as the image on the web, on the back of prints, and also in the metadata of all image files uploaded or emailed anywhere.
In UK law and most other countries, a copyright statement is not formally required, but if you use one (and you should) a valid copyright statement comprises 3 essential elements
- © - the international copyright symbol
- Your name - the copyright holder's name
- Year - the date of first publication
So © John Doe 2008 is correct. You may add other information as well, such as 'All Rights Reserved', a telephone number, address, website address and so on. EG © John Doe 2008 All Rights Reserved - www.johndoephotos.co.uk
Metadata is textual information embedded in an image file. Not all image file formats are capable of holding metadata, but JPEG, TIFF, PSD and most digital camera RAW formats support it.
Metadata text is only viewable in programs that are capable of displaying it. Photoshop and most advanced image editing and management tools have the capability.
There are two common formats for metadata, EXIF and IPTC. EXIF is most widely used for recording information at the time of exposure. IPTC information is added later.
IPTC information is the standard location for the copyright statement, along with contact details and other information relevant to the image. Neglecting to embed a copyright statement in a file can lead to it becoming untraceable and an 'orphan work'.
Deliberately altering copyright metadata is an offence under UK and US law.
Altering or removing copyright ownership information, in IPTC or anywhere else, is a criminal offence in UK under the Copyright and Related Rights Regulations 2003 (which extend the 1988 Copyright Designs and Patents Act) if done with the intention of depriving the rights holder of their intellectual property rights. However the practice is commonplace among publishers, who then fail to seek permission or pay the unknown rights holder, or syndicate the material as their own. Prosecution is virtually impossible since intent would have to be proved.
Altering other metadata such as captions may also be unlawful, contravening the author's moral rights if they have been asserted.
The short answer is that you cannot. The only certain means of making sure your work cannot be copied is to keep it off the public web, and never allow any copies into the hands of someone who might publish anywhere. Anything that gets printed is quite likely to end up on the internet.
Some people advocate technical tricks such as slicing your image into lots of small pieces and having the browser reassemble the parts for display. This certainly makes 'saving' from a browser hard work, as there are many parts that need to be saved. But a simple screen grab defeats all that completely.
The same applies to web authoring techniques that place the image in the background of a table or layer, and also disabling the right mouse button ability to save a file. The latter is especially annoying to Windows users who will find all their other right button options inaccessible too. Neither method will deter any but a casual user who isn't trying very hard.
Likewise, embedding your photos in Flash presentations or Acrobat PDFs offer little protection. Tools to capture and extract from these documents are freely available on the web.
And anyway, if it can be seen it can be screen captured. Visible watermarks are currently probably the most effective deterrent, if you find their appearance acceptable.
Watermarking can be of two types, visible or invisible.
Visible watermarking - where you emblazon '© John Doe 2008' across the image - has the obvious problem that it spoils the picture. Watermarks like this also are usually quite easy to edit out unless large and intrusive and placed across the most important parts of the photo. They are however a clear and simple warning, and worth thinking about.
Invisible watermarking uses steganographic techniques to invisibly embed a hidden, registered creator's code in the image itself. This technology is offered commercially (and at quite high prices) by Signum and Digimarc, among others. The theory is that their hidden code can survive multiple Photoshop procedures or even printing on a commercial press, so images can always be traced back to the rights owner. In practice there are methods for attempting to corrupt the code, and questions about how robust such watermarking really is. It also degrades image quality to an extent that some find unacceptable.
How to allow use of your photos
In general, yes, they must, and if they use your copyright work without your agreement they commit an unlawful act.
There are a few exceptions:-
- If you have previously assigned copyright to someone else you have surrendered all ownership and negotiating rights. The copyright holder must grant permission.
- Certain types of usage are regarded as 'fair use' and are allowed by copyright law. It is still polite for the user to ask, but they are entitled to use the work so long as it really does fulfil the criteria. Infringers frequently excuse themselves on the grounds of fair use meaning not-for-profit, or that any image found on the web is eligible, or similar misunderstanding of the law.
- If you have previously released the image under licence, usage within the terms of the licence does not require permission. Uses outside the scope of the licence are still protected by copyright law and require your agreement. For this reason do not grant licences that allow wider usage than necessary.
Copyright law permits some uses without the need to ask permission of the copyright holder, and these specific instances are called 'fair dealing' or 'fair use'.
Fair use of photographs comprises:
- Personal copying for the purpose of personal study or research. This means it is OK to copy a photograph or a published photograph provided it is one copy made for the personal use of the person making the copy. Multiple copying, such as that a teacher might do for an entire class, is outside the scope of fair dealing. NB: US law differs significantly here, as virtually any educational use within schools or colleges is treated as fair use. US educational establishments will often be completely unapologetic about use of photos even in their marketing material, and even where UK photographers are concerned.
- Copying for the purpose of criticism or review is allowed as long as there is proper attribution. This allows for example, book reviews, or for someone to talk about your work on a web page. This fair use is widely misrepresented or misunderstood by webmasters, who seem to believe it means any attributed use is allowed. They are wrong : criticism or review is the key context here.
Images in the public domain lack copyright protection and may be freely used. This arises on expiry of copyright 70 years after the death of the author.
It is possible for photographers to effectively create public domain status for their work by granting a broad enough licence, eg the Creative Commons Attribution(BY) licence which permits any use on the condition a byline is provided..
It is important to realise that the issue of such a licence is effectively irrevocable. You cannot later revise the license to more restrictive terms, since existing copies will undermine any attempt to assert the subsequent terms.
There are three different methods and it is essential to use the correct and appropriate method in order to avoid unintended consequences.
Permission is a simple, informal agreement that the other party may make use of your work. Really, this means just saying 'yes' to their proposed use. You would be wise to specify exactly where and for how long and in what context they may use it, but if you start asking for payment or a byline in return you are creating a license instead. Informal permission stops short of forming an enforceable contract, so you have no real redress against misuse except copyright law, but conversely the other party can impose no conditions or penalties. Permission is really only appropriate for non-business use by friends and family.
A license is the usual form of agreement, and comprises a legally enforceable contract. A contract is an exchange of value between two parties, and imposes terms and conditions on both which specify the nature of the contract. It is essential that you read the terms offered by the other party and are careful about specifying your own. The small print of commercial publishers, organisations inviting reader submissions and competition rules must be read carefully as they often include copyright grabs and impose serious legal liabilities. Licenses are subject to contract law, and damages my be sought by either side for failure to complete the contract.
Assignment of copyright permanently and irrevocably surrenders all copyright and transfers it to another party. Assignments must be in writing, but are sometimes buried in contract terms and conditions or simple forms, so be very careful. Once you have assigned copyright you cannot use the photo you made without permission of the copyright holder.
First British Rights (also known as First British Serial Rights) is the traditional form of licence granted to commissioners of photography. It allows the client exclusive first use of the work produced, after which the photographer regains full rights to re-sell the material. If the commissioning client later wishes to make further use of the work by republishing or publishing in additional media or territories, a further fee must be negotiated.
The advantages of First British Rights are:
- The client need pay for only the minimum rights that they need. This keeps their costs to a minimum.
- The possibility of resale allows the photographer to work cheaper than is viable for work that cannot be resold.
- It is fairer to both parties and recognises the intention of copyright law, that freelances are independent small businesses who need to retain the title to their assets.
- The gearing of use to reward is an incentive for the photographer to try hard to produce work of maximum value to the client
- Exclusivity is protected for the client. The photographer cannot sell the work to a competitor or anywhere else until after the client has used the photos. In the case of magazines and newspapers, resale rights are restricted whilst the edition remains on sale.
The disadvantages are:
- Keeping track of reuse across diverse media is practically impossible for the photographer, who must rely on client honesty
- The administrative burden of tracking further uses and negotiating additional usage fees is inconvenient to clients
- Clients may feel they are being 'held to ransom' over fees for subsequent use.
In recent years commissioning clients have often used market forces - the oversupply of hungry photographers - to move away from First British Rights contracting. It is now commonplace for commissioners to require copyright assignment - exactly the right that an employer has over an employee's work but with none of the costs - or a perpetual licence to republish without further fee. Either deprives the photographer of revenue, but fees have not increased to reflect this. Worse, it has led to a perception of photographers as interchangeable and disposable content suppliers rather than creative partners.
A rights-managed (RM) license is one where specific, defined reproduction rights are granted to the client, usually limited to a set period of time. A RM license will typically comprise a package of defined usage rights specifying size, media, purpose (eg editorial, promotional, advertising), and duration of the agreement.
The advantage to the photographer is that they retain precise control over how and where and for how long the image is used. If the client subsequently requires other uses they must be negotiated as additional license terms.
The disadvantage to the photographer is that RM licenses are necessarily modular and complicated to price. This complexity makes RM somewhat offputting to clients and especially hard to formulate automatically for online sales (although the PLUS! initiative has devised a pricing matrix to simplify this).
The advantage to the client is that they buy only the rights they need, keeping cost to a minimum. Further, exclusivity is possible and may be guaranteed via RM terms.
The disadvantage to the client is that further usage beyond the licensed terms will incur further negotiation and fees. Usage requires active monitoring and management by the client, who risks infringement by usage outside the terms. There is also a concern that they may be 'held to ransom' for license extensions, although this may be avoided by prior agreement of prices for possible expanded usage in the future.
A royalty free (RF) license grants a broad bundle of reproduction rights to a client. Typically this will include unlimited repeat use in any media, at any size and for any purpose, by the client.
The advantage to the photographer is the easy sell of a proposition that appears extremely generous, almost equivalent to copyright itself. RF licenses are perceived much as 'all you can eat for £10' bargains by clients. In fact the small print may impose conditions such as maximum size, or prohibit advertising use. RF licenses are also well suited to e-commerce and immediate download , in contrast to the complex modular pricing of RM licenses.
The disadvantage to the photographer is that RF turns photographs into commodity items. As with any commodity, volume and price are the key factors. All control of usage is permanently lost as soon as an image is issued with an RF license. The worst aspect of RF is that many clients have come to expect RF licenses even for commissioned work that has little or no resale value, yet with no compensating increase in fees. Further there is no ongoing relationship with the client after delivery.
The advantage to the client is that RF grants almost complete control over when, where and how many times they use the image and at a fixed price. As price is not geared to usage in any way they do not need to monitor or manage use.
The disadvantage to the client is that exclusivity is unobtainable. The basis of RF pricing is volume, and that means the same image may be purchased and used by competitors. RF stock is often sold as collections at very low per-image prices. This looks irresistible but few clients ever use more than a small percentage of the rights bought. They may end up paying more than if they had licensed specific rights via rights managed (RM) licenses.
Creative Commons is a form of licensing developed by the Creative Commons Foundation, which aims to facilitate free sharing of creative works within limits specified by the license terms.
CC licenses are modular and the following components may be mixed and matched to achieve a variety of different terms:
- Attribution (BY): Licensees may copy, distribute and display
the work and make derivative works based on it only if they give the
author a credit as specified by the licence.
- Noncommercial l (NC): Licensees may copy, distribute and display the work and make derivative works based on it only for non-commercial purposes.
- No Derivative Works(ND): Licensees may copy, distribute and display only exact copies of the work, not derivative works based on it.
- ShareAlike (SA): Licensees may distribute derivative works only under a license identical to the license that governs the original work.
EG a BY-NC-ND licence would permit only bylined, non-commercial copying but no derivative works. Omitting the byline or commercial use or making derivative works would break the terms of the license and would be actionable.
CC licenses are not without problems, both real and potential:
- Their complexity discourages people from reading or understanding exactly what the licence permits. CC is often assumed to mean much the same as free of copyright by image users, and that misunderstanding can encourage infringements.
- Despite CCF taking care to formulate terms that are in theory valid in many different countries there have been very few instances where the courts have tested their enforceability.
- Once an image has been released with a .'liberal' licence it is practically impossible to revert the terms to more restrictive permissions.
- Unforeseen outcomes may occur. For instance, if an image is released for non-commercial use and is then used by a non-profit site for purposes.that the author deplores yet finds his name alongside. As the license terms have been complied with there is nothing the photographer can do.
It is hard to see any benefit of CC licensing applied to photographs compared to traditional retention of full copyright. The latter does not preclude free usage or sharing, it just means the author's consent must be obtained,. The photographer therefore retains full control of how, by whom, where and for how much money.
A license is a contractual agreement that permits usage of copyright work in exchange for something. This can be payment of a fee, but may be anything of 'valuable consideration'. A byline or link to your site, or entry into a competition may be offered, and that is enough to form a legal contract if you accept it.
License contracts may be terribly simple, but with copyright they are often made very complex by one or both parties stipulating terms and conditions that define what will be agreed.
Never agree to contract terms unless you are able and willing to honour them. A license is a legally binding document.
A 'copyright grab' is a contract term that acquires an assignment of copyright or a licence of such wide scope that it removes most or all control of the image from the copyright holder.
Copyright grabs have become extremely widespread in recent years, and their usage by unscrupulous clients is so commonplace that you must carefully read the terms of any license proposed. They are often masked by reassuring statements that you retain copyright, but then go on to propose 'a perpetual, irrevocable, fully paid, royalty free, sub-licensable right to use, adapt and incorporate into derivative works the image for any purpose in any media including those yet to be invented, in all territories across the universe' or something similar.
Basically this means they can do absolutely anything they like with your photo, forever, and you have no further say in the matter whatsoever. And they get to keep all the income they generate too.
There is absolutely no sensible reason why anyone should ever agree to such terms. And if you do, you will almost always find an accompanying clause that places unlimited legal liability for costs onto you should their usage hit legal problems.
You might expect to be very handsomely paid in return for agreeing such generous terms, but copyright grabs often turn up in photographic competition rules and the small print of websites that invite users to send in material in return for nothing more than a byline. They are also a frequent addition to the terms of commission of newspapers, magazines and other clients, with little or no extra payment offered above that which they previously paid for First British Rights. All professional photographer organisations strongly oppose such exploitative terms.
What is actually happening here is that the client is attempting to (re)define the contract after you have fulfilled your part of it. This is common, either out of ignorance, presumption, or outright bullying and is generically known as a 'copyright grab'.
Legally, contracts and variations of contracts cannot be imposed, they are an agreement between both parties (unless one party already signed away the right to object). Since you made a verbal contract to do the work, then did it to the client's satisfaction, it is too late for them to now require terms they failed to specify. So, no, you are not obliged to accept their proposal.
However unless you have documented proof of what was agreed, eg signed T&C's or at least emails or letters or notes or recordings of phonecalls, what actually was agreed may be disputed by the client. Clients often mistakenly believe that they are the owners of copyright in commissioned work, although frequently it is a deliberate attempt to twist your arm to obtain more than has been paid for. But, in the absence of an agreement you own copyright as the creator of the work. Presumably you based your pricing on this understanding, too. The onus is on the client to prove otherwise, not you.
The diplomatic way out of this may be to point out that a copyright buyout will be very much more expensive than your quoted price for first use. Almost certainly they don't need the broad rights they are now asking for and will not want to pay this. If they do, they should pay accordingly, and the Association of Photographers recommend that a buyout should cost somewhere around 7.5x-10x the first use fee. You may be able to agree a license that includes the rights they really need at a price that is mutually acceptable. If not, then stick to the first rights fee for first rights.
Don't be intimidated by threats such as 'you'll never work for us/this industry/in the UK ever again'. Clients who don't play fair are not worth keeping.
How to trace and pursue infringements of copyright
The answer to this ought to be straightforward, the publisher is the party who commits the infringement.
However publishers often do not accept responsibility, and will blame the problem on a web or graphic designer whose services they have used. This may even be true, the publisher may have no idea that his site is displaying your work without permission.
Do not be diverted into chasing the designer or whoever the publisher claims is responsible. Legally your claim is with the publisher. They may in turn have a claim against their designer, but that is not your concern or problem. You will only end up being the victim of both whilst they squabble about whose fault it is.
Google is your friend. If you are dealing with infringement by a print publication you will likely be able to locate the publisher's registered office easily enough. Try to find out who the editor or publisher is so you can pursue the named individual.
Where web infringements are concerned, it is often easy to trace the domain owner using a WHOIS lookup. There is a WHOIS tool right here.
We recommend all communications with infringers be in writing and that you post your letter using Recorded Delivery. It is amazing how often such letters otherwise allegedly go astray. Email is also susceptible to loss and denial. Requiring a receipt only works if the recipient allows it.
The first thing to do is to get evidence of the infringement. If your work has been used without permission, get a copy of the publication. If the infringement is on the web, print out the pages that display your image along with enough information to positively identify the site and date. The next thing to do is to identify the infringer. You are then in a position to contact them and take the matter further. How you do all this and what outcome you may be able to achieve will likely depend on the extent and context of their infringement. Many factors may apply. Are they passing your work off as their own, or is it credited to you? Is the metadata intact or has it been altered? Is their usage personal or commercial? Whereabouts are they located? Broadly your choices are:
- You can insist that they remove the image immediately.
- You can offer to supply a retrospective licence on payment of a fee, to legiitimise the infringing use. Plus a further fee for agreed future use, if appropriate.
- You can commence legal proceedings against them for infringement of your copyright.
- You can forget it and give up
When claiming payment from an infringer it's advisable to think through the possible outcomes when considering how much to charge. The infringer has forfeit the right to negotiate price by using without permission, so within reason you can charge what you like. However you want them to settle early and easily, to avoid the expense, complication, delay and uncertainty of court action. Therefore how much you charge ultimately has to be defensible in court, but reduced sufficiently to encourage them to settle.
If you were to sue in a UK court, the damages for infringement would be based upon the market value of the use that the infringer has made of your work, increased perhaps by an amount that the court deems appropriate for flagrancy of the abuse. UK courts are restrained about this, unlike the US where punitive multipliers of up to 70x are applied for infringements against registered works. UK damages are closer to the US case for unregistered works, which are limited to 2x the lost revenue.
What this means is that the more flagrant the infringement and the better your evidence the more you can charge, but probably it should be no more than 2 or 3x the going rate.
If you win the case you would normally also win your costs from the infringer. So these costs can also be factored into your proposed settlement figure.
Because market value is central to damages, you will have to convince the court that the value you place upon your work is realistic. The other side will almost certainly try to challenge your valuation. For that reason you have to stay close to 'the going rate' unless you can prove that the work had exceptional value, either because you are able to command exceptional rates or the work itself is rare or exclusive or has required unusual skill and effort. If you are able to produce proof of previous sales at higher rates, so much the better.
So you need to base what you charge on the going rate, adjusted for any special considerations. Useful resources for finding out rates are the price calculators at Alamy and Getty photolibraries (you will need to register with these), and the NUJ Freelance Fees Guide (accessible to anyone).
NB: if you have a lot of work placed with microstock libraries charging (say) $1 per Royalty Free image, you have shot yourself in the foot here. Since you have established your going rate is $1, infringements are simply not worth pursuing.
Your final price will therefore be a calculation based on all of the above. This may of course be sufficiently high that the infringer will likely baulk at your offer of a retrospective license. A proven tactical device is to offer a sizeable discount for early settlement, say 30% off for settlement within 7 days.
Retrospective licenses may be offered as a way to legitimise unauthorised use after the fact. For example, if you see your work used without permission somewhere, you may wish to offer a retrospective license to cover the period of infringing use in return for a fee, as an alternative to taking legal action for copyright infringement.
This provides a quick and easy resolution provided the infringer accepts the proposal and pays the fee.
It can be. Copyright law in UK allows for criminal prosecution where there is deliberate intent or passing-off in a commercial context. However the difficulty of proving intent and the higher standard of proof ('beyond reasonable doubt') required for a criminal prosecution means that copyright infringement is almost always dealt with as a civil procedure with the aim of recovering damages.
Damages in a civil case are tied to the provable losses of the plaintiff plus the costs of the legal action. Civil courts do not act to punish, simply to restore a wrong situation. In theory damages can be increased to take account of flagrancy of abuse but generally the courts will award pretty much the fee that should have been paid for legitimate use.
There is no concept of punitive damages in UK copyright law, unlike the USA where damages can be very substantial for registered works. UK law is clearly only a weak deterrent to infringers as the worst that can happen is that they pay little more than if they had licensed legitimately. Since much of the time their infringements will go undetected, on balance it is sound business sense to be lax about obtaining permission.
This goes some way to explain why infringement is systemic among UK publishers. Although they will invariably explain instances as isolated mistakes, there is little motivation for them to take reasonable care and substantial benefit if they can get away with it much of the time. The practice is so widespread that this can only be a matter of deliberate policy, and the intentional nature means that criminal offences are being routinely committed by publishers, confident that they will invariably escape prosecution. It's a disgraceful way to run an industry.
Criminal copyright prosecution allows for imprisonment and fines, and infringing goods may be seized. It is important to understand that even if a criminal prosecution succeeds, a separate civil case will be necessary to recover financial losses caused by the infringement.
It is not the best idea to approach the average High St. solicitor with a copyright dispute, since it is a specialist area of law. It's preferable to use a firm that has expertise in intellectual property, who may be found via the Law Society. Alternatively, ask in our copyright advice forum, we may be able to suggest suitable lawyers as we know a few veterans of infringement recovery.
NUJ members are reminded that it is now Union policy to provide legal assistance in copyright cases.
What you can do, if anything, depends on circumstances.
As with any infringer, the hope is that negotiation and commonsense or threats, will prevail, avoiding the costs and risks of legal action. However it's best to know what is possible so you can adopt a measured and realistic response.
The best situation is that the infringer has local offices and assets in the UK. If that is the situation, they are accessible to UK courts.
If the infringement is a web publication it can be useful to approach the ISP to deal with an evasive infringer. Overseas ISP's may have parents in UK, and one large infringement was dealt with by approaching the UK parent of an Indian hosting company, resulting in the site being removed from Indian servers.
If the infringer is using GoogleAds, you may be able to have their account cancelled, thereby depriving them of revenue. Google's IP policy provides a mechanism for doing this, although it is quite laborious.
If the infringer is located in the USA and the work is registered with the US Copyright Office, you should not find it too difficult to locate a US attorney who will take your case through the US courts on a contingency fee basis. If it's an unregistered work, they won't be interested because it isn't likely to be financially rewarding to try and recover damages. You can however get a US attorney to apply for a take-down notice under the Digital Millenium Copyright Act (DMCA).
One thing to watch out for is that 'fair use' in USA extends to any educational use, and you will have no success against US schools and universities using your work for any purpose they wish.
There are also esoteric legal arguments surrounding what comprises 'commercial' use. In the USA editorial use is often distinguished from commercial use, because the press is protected as a constitutional freedom. In the last year or so this has given rise to an argument that press use is a constitutional obligation, therefore is not commercial and hence is fair use. This seems crazy because press publishing is commercial, done for profit, and they don't give away their product or copyright. The debate continues and is best ignored : until a test case has established otherwise they owe you the money.
Infringers in EC countries should become much easier to get at from January 2009, when the cross-border pursuit of damages will become available from any EC country rather than having to take action within the infringer's national jurisdiction. The process promises to be little more difficult than current Small Claims procedures within UK, with the facility to initiate online. If you suffer an EC infringement it seems likely to be worth waiting until next year to take action. We will report more on this as the details become clearer.
Elsewhere in the world you have little choice except to find a lawyer within the home country of the infringer and pay them to take legal action locally. This can bring you into contact with legal professionals and processes that will test your patience and wallet, so is best reserved for serious infringements where large sums of money are at stake.
In some cases local photographer or journalist trades unions may be able to advise or assist, and have done in Australia and Canada in particular. You probably want to start by asking the advice of your own TU or other professional organisation, if you have one. Similarly approaching the trade commission or bureau of embassies can assist. Some countries are sensitive about their trading reputation and will at least offer advice on how to resolve the situation. Others will sound sympathetic (or not) and show you the door.
Being realistic is essential. In many instances, your loss of income will be far exceeded by the costs of attempted recovery, and even if you win a judgement, enforcing it against people who have few or no assets and are thousands of miles away. Trying to get your £15 from 'What Yurt?' in Ulan Bator will simply not be worthwhile.
Having said that, it is essential to at least try and get the offending material removed and ensure that the infringer knows they owe you money. If you simply ignore infringement, you potentially weaken any future case for damages within the UK against some other infringer. If your failure to assert your copyright comes to light the argument could be made that you are simply now taking advantage of the court to demand money for images you had previously allowed to be used for free.
Issues that affect everyone who uses photographs
For an employee carrying out photography in the course of theirr employment, copyright of the work will belong to the employer unless agreed otherwise. This may apply even if the employee uses their own camera, and shoots outside normal working hours.
For a freelance working for a client, copyright will belong to the photographer, not the client, unless agreed otherwise. Despite client expectations this applies to commissioned work where the client provides a brief, pays a fee, pays expenses incurred and even the cost of equipment hire.
That is the simple and straightforward position described by the 1988 Copyright Designs and Patents Act. Unfortunately it has become muddied by market forces and opportunism.
For employees, it is not unheard of for employers to demand ownership of all photos taken whilst employed. EPUK knows of one instance where an agency photographer employee was told by their employer that work she had shot out of hours for her own portfolio were their property, including her family snaps. Check your contract of employment carefully!
For freelances, what precisely constitutes employment can be an issue. There is an argument that a contracted freelance who works shifts is employed for the purposes of copyright despite being self-employed in tax and employment terms. The test appears to be whether the photographer determines their own hours of work and is free to decline any given assignment.
A much more common problem is the imposition of rights-grabbing contracts by commissioning clients. A copyright buyout ought to command far higher fees than that payable
for first use because it represents higher value to both parties. Whilst the law allows assignment of copyright to the client, the arrangement ought to be equitably negotiated not coerced. Large clients have far too much market power for this to happen and photographers fears of losing work have only encouraged demands for ever greater rights for less money. The outcome is that many large publishing clients now expect exactly the same rights that they would obtain from employees, but with none of the costs of equipment, workspace, computers, software, pensions schemes, holiday and sick pay. The compliant freelance bears the costs and likely soon disappears under a mountain of accumulating debt on the fees and terms available.
The solution here is to be very careful about what you agree to, and if possible to require clients to agree to your terms and conditions.
In general no. But there are some fair use exceptions. For instance you may reproduce a copyright image for the purposes of criticism or review. And you can make personal copies for the purpose of study.
Yes, absolutely. The web is no different from any other publishing medium.
Virtually anything you can see will have been created by someone and they will automatically own the copyright. They do not need to make a copyright statement, copyright is implicit. So you should start from the assumption that everything is copyright unless and until you can establish otherwise.
It would be very helpful if they did, but for a variety of reasons they do not.
- Not all photographers are able to embed metadata in their files because they do not own software that has the capability. And some don't know they should.
- If images are uploaded direct from a digital camera to the web, there will be no IPTC caption or copyright information. Some cameras can embed copyright info in EXIF fields instead, but this is non standard.
- Most cheaper image editing programs cannot read or write IPTC data, and if you load an image which contains IPTC then re-save it, the data is lost.
- Rather a lot of the digital asset management software used by large media companies, especially newspaper desks, for many years allegedly contained 'bugs' that stripped authors' copyright statements. Remarkably these same bugs often substituted the newspaper's details, even though they were not the copyright owners. At the time of writing, these bugs do not appear to have been entirely fixed after nearly 20 years of use. Wilfully altering copyright statements is of course illegal.
- Until Photoshop CS3 in 2007, Photoshop's 'Save for web' option (incredibly) discarded IPTC information
- Until recently, web browsers discarded IPTC information when saving an image from the web. So even if the metadata was present, it was long gone by the time you went looking for it.
- Similarly some email clients lost the IPTC data when you saved attached image files. This was particularly an issue with Outlook and Outlook Express, which used Internet Explorer for their image handling, as IE did not preserve IPTC info.
- MSIE, the most commonly used web browser, insists on saving bitmap files (.bmp) from some sites where, in order to prevent 'leeching' the webserver technology does not allow direct access to the JPEG file. Bitmap files cannot contain IPTC records, therefore the data is lost.
One of the great advantages of digital images is that they can be endlessly replicated and distributed without degradation. Unfortunately, the chances are that at some time in their lifecycle they will encounter one of the issues above, and thereafter contain no copyright ownership information at all and become 'orphan works'.
This does NOT however mean they are free of copyright. You must not rely on the absence of this data as evidence of lapsed copyright or public domain status. Copyright still applies exactly the same and the lack of information simply means you will have to look elsewhere to find out who the rights owner is. This is frustating for both parties but there is no solution at present, and no technical way to 'lock' the data.
Identifying the copyright holder may be straightforward or require some detective work. Take special care if you have found an image that you are interested in via a search engine such as Google Images. They only cache a copy and the thumbnail page does not display any copyright warning. You must go to the original site to see the image in its original context along with any ownership details. Many people have incurred large bills by assuming Google Image thumbnails may be freely used.
Work displayed on most websites will be associated with a user or domain owner who may be approached. Image files themselves will often contain metadata identifying the rights owner and giving contact details, but unfortunately browsers do not support display of this information. There is however an extension for Firefox called EXIFviewer which will display IPTC and EXIF metadata.
If you cannot find the rights owner it is only safe to assume that although the photo is an 'orphan work' it is still someone's copyright and is unsafe to use. Copyright persists for 70 years after the death of the photographer so some very old photos may be OK, but beware that some agencies regard scans as new work so within copyright even though the originals have lapsed.
Note that the copyright holder may not be the publisher, who may be using the image under licence. Equally, sometimes the credited author will not the copyright owner because they have assigned copyright to someone else but retained their moral right to be identified as the author.
Using an image that is copyright requires permission of the copyright holder. If you do not obtain permission, your use constitutes an infringement. The copyright holder can then sue you for damages.
Thousands of bills for retrospective licenses have been sent out by both Getty and Corbis, relating to images allegedly used without license by websites. These have asserted very high levels of fee in line with US statutory damages rather that UK peanuts even when they have involved UK based domains. They give 5 or 7 days to pay.
Many recipients have wondered whether these are scams. They are not. Getty Images is the largest stock photo library in the world, and Corbis is the second largest.
This is all discussed at great length in a panic-stricken and angry thread that is now 67 pages long and has been raging for over a year at the Federation of Small Business forums. Dozens, perhaps hundreds of these notices have gone to UK citizens.
Without exception these bills have not so far resulted in any court action. Getty seem to be trying to compel settlement rather than sue. They are using UK solicitors who are by all accounts very persistent. Some have paid but many of the accused are arguing - some claim to have legitimate licenses obtained elsewhere, others dispute the amounts (typically £1,500-£7,000) as bearing no relation to Getty's own prices for legitimate use, that there was no way they could know the origin of the images or their copyright status etc.
But there is an exception here, albeit from an anonymous poster:
Having been caught in the the middle of this almighty mess because of one $20 image I legally licensed from a 3rd party that defaulted Getty persued me for costs and fees of near $2500.
As I am UK based I responded to their threats that US court action had absolutely no merit and I challenged them to bring it to a UK court for settlement. They didnt and summary judgement was granted in a US court which means the next time I set foot in the USA I will be arrested. ...
Maybe it's true, maybe it isn't. Maybe web publications are able to be deemed to occur in the US if the site is visible in the US. Maybe Getty is building a class action against all the UK infringers who are arguing, which it will pursue later in the US courts. We don't know, nobody does. If you receive one of these notices we would strongly recommend you consult a specialist copyright lawyer as soon as possible - and please let us know the outcome
Model releases have little or no relevance to copyright. There is no copyright in the human face or form, so no claim can arise. Whether this remains true after the creative work of a cosmetic surgeon or tattooist is unknown, but we would expect a photograph to be deemed a new work as a representation rather than a copy.
A model release is a binding contract that agrees to relinquish specific future claims of equity in return for a 'valuable consideration'. This is usually payment, but can be prints or some other agreeable exchange. However it cannot be nothing; without 'valuable consideration' no contract is formed.
The requirement for model releases arises only in advertising and marketing use of images, where endorsement by the subject is implied. A simple model release does not provide for defamatory use, distortion or misrepresentation of the subject, it simply says in effect 'I am not later going to demand a further fee' for the purposes to which this photograph may be put'. More complex model releases can waive extensive rights of redress for defamation, privacy, publicity rights etc.
One other important issue revolves around model releases and minors. If a model is to be paid and is under 18 they must be licensed models else an offence is committed. Licensing is a function of local authorities.
Property releases are similar to model releases. A property release is a binding contract that formalises the agreement of a copyright owner whose work is the subject of, or featured in, a photograph. The agreement will set out what use may be made of the photograph and what rights, if any, are retained by the property owner.
Contrary to popular belief they are not generally required for images of buildings in UK, because although buildings are copyright designs, the 1988 Copyright Designs and Patents Act provides an exemption for certain works on permanent public display, which buildings almost always are. Most scuplture is also similarly exempt.
In theory any 'designed object' may be subject to the designer's or manufacturers' copyright, so a photograph that includes almost any product be argued to require a property release. However a photograph is not a copy of a product but a representation and will generally comprise a sufficiently a new and original work for this to be invalid.
The usefulness and applicability of property releases under UK law is therefore limited in most circumstances, although any marketing or advertising use that implies endorsement by the 'brand' could be hazardous without a release that explicitly permits this. This is not a copyright issue as such, but one of commercial interest, passing off or defamation. Such releases usually cost a great deal of money to obtain. Fortunately this issue does not arise in editorial use.
Releases may appear more to have more copyright relevance for photographs of logos or registered trademarks, where 'copying' goes beyond incidental inclusion. Here the mere act of photography may infringe. Despite the threats of some trademark holders, it is hard to see what damages could arise directly from the copying itself and the position remains uncertain for editorial use.
As with model releases, the client who publishes the photograph assumes ultimate responsibility for any infringement. This concern has led many stock libraries to require property releases to be available even when they are irrelevant or unobtainable.
This is an awkward or impossible requirement for photographers that also has its origins in rather different US law regarding buildings, which affords post-1999 buildings of US-registered design full copyright protection in limited circumstances.