For most of us, taking photos is just for fun. For professional snappers, it’s their bread and butter.
So when someone comes along and takes their hard-earned shot without permission and uses it without credit, it doesn’t just hurt personally, but financially.
Photographer Kate Wall, of The Light Chaser, has found herself in this situation a number of times.
“It’s just one of the curses of social media, and people thinking they have the right to take images and not even care,” she said.
For the past year she’s been trying to track down a market stall selling one of her photos on a postcard.
“I’ve had people contact me to say they’ve seen my photo. Between Brisbane and Coffs Harbour, there’s someone who does the circuit. I know other photographers who’ve also had images taken,” she said.
“Basically they find images online, they save them, and print them as cards, and then sell the cards for up to $8 at markets … but they think because they’re selling these small prints no-one’s going to notice.
“It’s just so disheartening, it hits you for six. People say, ‘You should be happy, your photos are out there and people are buying them’. But that’s not the bloody point. It’s your property and they’re reselling it without asking.”
So what can be done about it?
Thanks to a discussion on photography and privacy on Focus with Emma Griffiths on ABC Brisbane Radio this past week, we know that the photographer owns the image they snap, not the subjects of the photo.
If anyone else wants to use that photo, they have to seek permission first.
Here are the answers to a couple of questions about your rights when a photograph you’ve taken is used by someone else, either for their own personal use, or profit.
What should I do if someone uses an image of mine without permission?
First things first, decide what outcome you want.
Do you want them to remove the content? Retrospective payment of a licensing fee? Addition of an attribution? Publication of a correction?
- I take a photograph on my iPhone — I am the author and copyright owner.
- I take a photograph on your iPhone — I am the author and copyright owner.
- I am a photographer employed by a museum — for photos taken “in the course of employment”, I am the author of those photographs but the museum is the owner. This is due to different ownership rules in the Copyright Act for employee-created works. These rules may be adjusted or excluded by the employment contract.
Once you decide, then it’s time to make contact with the person or entity responsible for the unauthorised use and then finally, negotiate.
“Do not assume that any infringement was deliberate or done in bad faith — clearing rights can be tricky, and many entities will welcome the opportunity to retrospectively strike a deal,” Emily Hudson, an associate professor from University of Queensland, says.
“For some entities there are standardised procedures for copyright complaints, especially as regards the removal of infringing content on sharing websites, for example YouTube and Facebook have notice and takedown procedures.
“These procedures are often connected to safe harbor protections in copyright statutes. These protect organisations from claims of copyright infringement in relation to material posted by users, so long as the organisation follows the takedown processes as required by the statute.”
Dr Hudson said lawyers could end up being involved, but that many disputes could be resolved without.
Why do people take photos and not ask permission?
It could be for a couple of reasons.
“There is a degree of legal ignorance, in that people sometimes believe that placing a photograph in the public sphere, especially online, means that it may be freely used,” Dr Hudson said.
“And there will be those who understand copyright but choose to ignore it.”
Dr Hudson said the volume of potentially infringing acts is very high.
“The ubiquity and power of technology means that we are constantly creating works that are or might be protected by copyright: photographs, videos, and written posts, for example,” she said.
“We distribute these works to one another, including by making them available on social media platforms.
“This infrastructure encourages us to copy from one another and to share and build on other people’s works.
“A lot of these acts will infringe copyright, as they lack permission, whether express or implied, from the copyright owner, and do not fall within privileges in copyright legislation such as fair dealing.”
But Dr Hudson said just because there was widespread infringement, it did not mean there was widespread harm.
“I would say that harm is more likely to arise for works created by professional creators — uses that are usually paid for, or which divert income away from the copyright owner, uses without proper attribution of the author, and/or uses that the author objects to on moral or ethical grounds,” she said.
“It is very difficult to quantify how much harmful infringement is taking place, as much depends on the framing questions, assumptions and available evidence.
“When one thinks about all the photographs that are available online, I imagine a plausible argument that only a small percentage are the subject of any harmful infringement. But I also suspect that where harm occurs, it can be significant.”
But as social media and other platforms are based on sharing, and the tacit understanding that copying — or at least, certain forms of copying — is OK.
“Many creators have moved away from an ‘all rights reserved’ business model, for instance by releasing content subject to Creative Commons licences, or by encouraging users to modify and re-imagine their works,” Dr Hudson said.
Say someone does use my image without permission, can I send them an invoice?
It’s not a good idea, according to Dr Hudson, “as there is no pre-existing agreement to which the invoice relates”.
“It would be much wiser to approach the person or business to request a payment,” she said.
“If a polite approach is ignored or rejected, the photographer could decide whether to press more strongly, for instance by a letter of demand sent by a lawyer.”
Photographer Jordan Cullen, owner of the Cullen Collection, sent a business an invoice after he discovered it had used one of his images without permission.
And he was successful in receiving payment.
“Posting to Facebook is relatively harmless, but it’s when a business uses your images to make money off that’s definitely an issue,” Mr Cullen said.
“It should be treated the same way as any other theft.
“I provide photography as a professional service and it makes up a large part of my business and that’s why I will always invoice a business which takes my work without permission.”
If I post a photo to Facebook or Instagram, do they then own it?
No, but they can use them how they see fit.
If you delve into Facebook’s terms and conditions, you’ll come across a section about sharing your content and information.
“You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings,” it reads.
For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
To break it down for you: Photos and videos you upload to Facebook can be used by Facebook how they see fit (royalty-free, worldwide licence), so long as you keep it on your page, or until your account is deleted.
Facebook can also sub-licence, or transfer licence entirely, to another entity (transferable, sub-licensable).
You, as copyright holder, still own the photo and can still use that photo elsewhere (non-exclusive).
“Even if the platform does not own content, its terms and conditions can give it expansive rights,” Dr Hudson said.
“Social media platforms have been criticised in relation to this, both on the grounds that their terms and conditions are not flagged to users in sufficiently prominent and accessible ways, and because the licences overreach and are excessively one-sided.”
If you’re concerned about other people getting being able to see your Facebook photos, best thing to do is to check out your security settings.
How can I prevent theft of my photos?
Here are some basic tips:
- Use a watermark— Using a photo editing program, or even an app on your phone, you can add your name or business logo to any photos before loading them to social media. But watermarks aren’t a guarantee. If it’s in the corner, it doesn’t stop someone from zooming in just enough to get the watermark out of the way and then copying that image.
- Only post low-resolution pictures online — Make sure they’re resized to a web-quality image. That way even if they are saved by someone who has the intention of blowing them up large and selling them, they’ll be unable to because the photo will be of a lower quality.
- Consider an image tracking service — There are programs out there capable of tracking copies of your images if they appear on the internet. If you want to check if a photograph of yours has been copied, you can always reverse image search through websites like Google and TinEye.