Watch This Episode of MwahTV About Photography Copyright Law
Today I want to get crystal clear on common misconceptions around photography copyright law. This is something I get asked about A LOT as a professional photographer. Here is what you need to know.
There is a good chance that if you have never really worked with a professional photographer before, and you don’t work in the creative industries you find the whole business around copyright infringement to be pretty confusing.
I Got You
Having studied this at length in college as part of my photography degree, and then having used it in real life in my 10 years in the Photography Industry, I want to help clear up a few things around copyright law that have been the cause for confusion and sometimes heated debate in my experience.
Breeching copyright law is a criminal offence. Protected here in the UK by Copyright, Designs and Patents Act 1988.
and just in case...
Usually in the first instance, when in breach of copyright, a claim will be taken out against you. This could constitute formal written notice of your offence, with a request to remove the work, pay for your use of the work, or if the offence was deemed to have already caused damages you would more likely hear from a lawyer.
Here in the UK right now, we have some of the toughest copyright laws. The maximum term of imprisonment for copyright infringement or piracy here is up to 10 years. No amounts are stated in damages awards other than the term “substantial penalties”.
Stateside
In the US things are a bit different. Maximum offences can bring $250 thousand dollars and in extreme circumstances up to 10 years in jail.
The common Misconceptions
Misconception Number 1
“I’m in the photo, so I get the copyright.”
Nope, this is wrong. All copyright laws state that copyright law in itself is there to protect the creator. If you are in the photo then you probably didn’t create it.
If I set up my camera and a beautiful mix of lighting and I got you to come into my studio space and hit the shutter, then technically that would make you the creator.
Operationally Speaking
Now, I’m never gonna do that as a professional photographer, unless, I have you sign one of my assistant photography agreements.
This would protect you under my insurance so that if any of my equipment fell on you or something you would be covered.
It would also state that any work created on the date we were in that studio space is by default my copyright.
Misconception Number 2
"But I'm a professional model"
The rule still applies. If I’m paying you to be in the picture I create, then I created it so it is still my copyright. A couple of extra measures would need to be taken in this scenario to protect us all. Firstly if you are a professional then I’m going to be paying you for your time. The sum paid would be pre-agreed directly with you, or your agency. At this same time, I’m going to get you you’re your agent to sign a model release form that will state that I still own the copyright of the image.
Operationally Speaking
The final layer on this scenario is to make sure you can then use the fab photo we created to book yourself your next job, by adding it to your book or onto your agency online profile. As part of our contract signing before shoot day, I’m going to make sure that you are issued a licence to use the image. In this case, that licence is going to cover use for commercial gains.
This means you can use the photo without infringing on my copyright to make some money for you and your agency.
Misconception Number 3
“What if I didn’t know you’d taken a photo of me then I found out and wasn’t happy about it?”
This is where it starts to get tricky and actually also where it gets a little bit political.
In 2000, the law was changed to adapt to different terrorist world events. This website does such a good job of showing how these laws are frequently being misused and misunderstood against photographers who are trying to document the world around them for a living.
A Helpful Link
If you have never heard of the photographers' movement I’m Photographer Not A Terrorist then you can find out more information on this at https://phnat.org/.
Misconception Number 4
"What if I was in the photo and you hadnt told me about it, then I saw it and it made me unhappy?"
If you were in the background looking worse for wear at a big event like a music festival, then you would not have a claim. Take a look at most event websites and sometimes at tickets and you will see that by buying a ticket you enter into a default model agreement with the event host to release any images of you participating in the event.
Narrative
If my hypothetical photograph was potentially adding some kind of disparaging narrative about you as a part of my creative commentary about what I was creating, you still wouldn’t have the copyright. You could potentially make a claim for damages against your reputation but that probably wouldn’t affect who owns the copyright.
Paparazi
Even if I was a paparazzi and I was following you and your family around all day to catch you at your most vulnerable to make money on your fame, I’d still own the copyright of the work I shot. As you know this is a huge part of our media today, and celebs have a hard time claiming damages around this.
Common sense needs to be considered here. If I heard from you that my political piece including you in an urban landscape had really caused you to lose a job or had genuinely made you miserable in your life, then I’m going to negotiate some kind of a rational human-to-human settlement with you. If you are ever in a position where a photograph has caused you to harm them please pause this video and contact the photographer who created it to resolve the matter in a calm and rational way first.
Misconception Number 5
“It’s ok cos I cropped it a bit”
This is one that never ceases to send me into a spin. I had a blogger once tell me this was totally ok and we had a heated debate about it.
If you took a photograph of a famous painting and then did a bit of photoshop on it and then put it for sale in your online store then you would be in breach of copyright law.
Yes, you can argue that you have created a brand new rendition of the original oil painting, but you are still trading on the original creation, so this is still copyright infringement.
Mariah
This is why Mariah makes so much money at Christmastime. It doesn’t matter if it’s her singing the song or a bunch of chipmunks or a cartoon Santa.
It's still her song so she gets paid from youuuuuuuuuuuuu.
The TOP 5 Things You Need To Remember About Photography Copyright As An Entrepreneur
Here is a quick list of things to pay attention to as a modern entrepreneur when it comes to the different aspects of photography copyright in your world.
1. Photography Contracts
Photography contracts. When you work with a pro there will be a contract. In this contract, there should be a couple of clauses about copyright and management of copyright.
2. Event Releases
Event Releases. When you are at an event and creating your own content at an event. Releasing the other people should be covered by the event host. When in doubt ask them. You may need to apply for a permit or make arrangements in advance.
3. Your Website
When you want people in photos on your website. When in doubt make sure you have copies of model releases. If you are handling this and not getting your photographer to manage this ALWAYS get them signed and sealed BEFORE the shoot day. It's a royal nightmare to get signatures after. Trust me.
4. Understand what "Commercial Gain" means
When you want to use photos to make money in your business, you must have commercial licence documentation to prove you can do this.
5. A Licence is a legal document
Do as your photographer asks in the licence documentation. If you don’t include a backlink or use the right caption then you are subject to action being taken against you at a later date.
Fancy A Chat & Cocktail Together?
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The TOP 5 Things You Need To Remember About Photography Copyright Law As A Professional Photographer
And five things to note if you are a professional photographer like me and you want to make sure you did everything right.
1. Contract Timing
Use proper contracts that get signed before the job.
2. Using Models
When in doubt get a model release.
3. Check in advance for RED Tape
Always ask about permits in new locations for your shoots and just do the red tape stuff no matter how annoying it is.
4. Metadata!
Put the metadata in comprehensively to your work before showing it to the client.
5. Veritent
Veritent is a new copyright management service. They check the ENTIRE internet for breeches on your copyright as a photographer, then, they take care of all the legal bit for you too. It's super easy and takes the nightmare out of checking up on naughty clients as your archives grow. Head here and find out lots about how this new service works and be in with some bonuses through me when you use it.
Timestamps for this Episode of #MwahTV
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If you think this might be you, this is a tremendous next episode to take a look at. Let's get you back on track!
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