MA in Photography, Falmouth University, Module 4, Sustainable Prospects; Week Two
Copyright is an area of law that, like highway speed limits are relatively easy to understand and are broken even more easily. Attempt to create a highly visual PowerPoint presentation on a subject other than one’s own photographic practice and the temptation to incorporate imagery sourced from the web is often just too much to resist. Load that onto a USB stick and take to the seminar venue for example and load it onto the hard drive there and those images are adopted by a whole new sphere of viewers and users; perish the though such images could be your own under different circumstances. In the global ubiquity of imagery the liquidity of available images is cheap.
Copyright law differs from country to country and there is no standard international convention (Canvas course notes state; nevertheless nearly 180 countries worldwide have ratified a treaty – the Berne Convention, administered by the World Intellectual Property Organization (WIPO); this sets a minimum set of standards for the protection of the rights of creation of copyright works around the world.). I write here about the U.K. standards, whilst I am mindful that photographic practice is a ‘borderless’ medium.
Copyright law exists to provide appropriate right to the owner and originator of works. Bently, Sherman, Aplin and Davis are summarised on the thorough Wikipedia site in terms of the legal terminology and definitions embedded into UK law thus
• Subsistence: Does copyright subsist in the proposed subject-matter?
• Ownership: Is the claimant the owner of the copyright? If so, is the claimant a sole or a joint owner?
• Incidents of ownership: What rights flow from ownership? What is the term of the owner’s monopoly?
• Infringement: Has there been primary or secondary infringement?
• Primary infringement: Has the defendant committed (or authorised another to commit) a ‘restricted act’ without the consent of the owner?
• Secondary infringement: Has the defendant committed an act amounting to secondary infringement; for example, possessed or sold an infringing article in the course of business?
• Defences: Does the defendant have a defence?
• Remedies: What is the appropriate remedy for the infringement?
Caution lies with anyone carrying out the following with one’s product – the image (Canvas course notes);
• Make copies of your work
• Distribute copies of your work
• Display your work publicly
• Make derivative works
Common advice to photographer practitioners is to grant appropriate licences for image use, not to handover copyright. Through careful discussion between the client/commissioning party and the photographer a licence should define and provide the exact needs and versatility for the client and thus reflect the value paid for that right. A sample licence agreement template from a small UK photographic practice here.
In Setting Up A Successful Photography Business, Lisa Pritchard describes five reasons why you should never assign your copyright to someone else. These include:
• “Copyright protects the moral rights of the creator. If you assign copyright, you will relinquish control of where and how your photography is used. This might result in the images being used in association with something you are strongly against. For example, your picture of a fox could be used for a pro-hunting campaign.
• You expose yourself to liability. If, for example, your image of an Asian man is used to promote a political party with a racist manifesto, the subject of the photography could seek legal proceedings against you.
• Copyright protects the economic rights of the creator. If you sign over your copyright, the assignee can resell your image to third parties and benefit financially.
• The image can be altered or digitally manipulated by others but still be assumed to be your creation, thereby tarnishing your reputation and integrity as a photographer.
• A usage license granting exclusive, all media, worldwide, in perpetuity rights, fulfils the same needs to the buyer (unless they do intend to sell the image on) while allowing the photographer to retain copyright and full control of where the work is reproduced.”
Multiple Copyright Owners
It is increasingly prevalent for imagery to be produced by more than one photographer.
The UK Government web site holds this advice referencing the Copyright, Designs and Patents Act 1988 https://gov.uk/guidance/ownership-of-copyright-works/
Creator and first owner
In the case of literary, dramatic, musical or artistic works, the author or creator of the work is usually the first owner of any copyright in it. The joint authors and first owners of copyright in a film are the principal director and the film producer. However, there is an exception where such works are made by employees.
The Wikipedia page advises “If more than one person qualifies as an author then a work is one of joint authorship. Under the 1988 Act, a work of joint authorship is a work “produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors”. Where the work is one of joint authorship, the consent of all copyright holder is required to avoid liability for infringement”. https://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom
Practical actions to aid protection beyond exacting licence agreement for image use, as follows;
A File size
Create low resolution images from all files before forwarding to potential clients and social media sites.
B Apply Metadata
Metadata is hidden information inside an image and it can help to identify the photographer. Make sure to incorporate your contact and copyright usage details in the metadata of your image. You can do this in-camera (if using digital) or otherwise in Adobe Lightroom, Photoshop or Bridge.
The International Press Telecommunications Council has a detailed summary on the use of metadata.
What Is Photo Metadata? Definition, Types, and Relevance
Metadata is a set of data that describes and gives information about other data.
Photo metadata allows information to be transported with an image file, in a way that can be understood by other software, hardware, and end users, regardless of the format.
Data and information is entered into the image file by users, or by automated capture from cameras or scanners. Metadata is stored in two main places:
• Internally – embedded in the image file, in formats such as JPEG or TIFF.
• Externally – outside the image file in a digital asset management system (DAM) or by a “sidecar” file, such as XMP, or an external XML-based news exchange format file as specified by the IPTC.
There are 3 main categories of data:
Administrative – identification of the creator, creation date and location, contact information for licensors of the image, and other technical details.
Descriptive – information about the visual content. This may include headline, title, captions and keywords. This can be done using free text or codes from a controlled vocabulary.
Rights – copyright information and underlying rights in the visual content including model and property rights, and rights usage terms.
It’s important that the metadata stored in an image file stays with the image. Metadata is essential for identification and copyright protection. Metadata are also key to smoothing workflow, easily finding digital images via search – online or offline – and tracking image usage.
C Disable the right click download
It is possible to disable the ‘save image’ function on a web site, however ‘screen shot’ function can easily be applied and a usable image can be captured.
High Profile Copyright Legal Case
The case of Cariou vs Prince (USA Law) has been thoroughly covered because of Prince’s high profile and the value of his print sales.
Prince won the case. It is easy to forget in the fighting ring of case law that the subject was not addressed; according to Daniel Maclean’s Goldsmiths presentation ‘Art and Law; Value Escalating Machines’ published January 2015, he notes that the subjects were angry and outraged at Prince’s cliched visual descriptions in his appropriated imagery, yet they had little or no recourse to execute a claim or rights.
Prince had ‘form’ with the case of Prince appropriating Sam Abell’s commercial work;
However, given the ubiquity of the coverage of Prince it is perhaps inevitable that there was counter measures taken by an enterprising group here
Figure 1 – cartoon by http://jessecartoons.com/en/copyright/
Bently, L. and Sherman, B. (2014). Intellectual property law. Oxford: Oxford University Press.
Aplin, T. and Davis, J. (2013). Intellectual property law.
Pritchard, L. (2012). Setting up a Successful Photography Business. London: Bloomsbury Pub.
Useful Intellectual Property Office information: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/481194/c-notice-201401.pdf