Copyright and photos: how to legally protect photographs

Words by Dr Martin Douglas Hendry

Introduction

Whether you are a professional photographer or a casual Instagram snapper - photographs have become an important part of our day-to-day lives.

More images are being created today than ever before. There is also an increasing number of opportunities for creators to use photographs in their products and services and generate revenue for their efforts!

This means there is also more opportunity for “bad actors” to acquire and use people’s images in ways that damage the photographer’s interests.

Intellectual property rights and particularly copyright, protect photographs – but it is important for photographers to know how to best protect their work, so they can:

1. Minimise the risk associated with misuse of their images
2. Maximise the potential they have for generating revenue from their photographic work

This guide provides an overview of copyright and photos and how to legally protect photography.

It explains:

1. What copyright is
2. How copyright applies to photos
3. Practical considerations for photographers
4. Social Media: Facebook, Instagram, Twitter and more
5. Copyright infringement
6. “Image rights”: and the Rights of those Appearing in Photos

Part 1: What is copyright?

Copyright is an intellectual property right (IPR) that protects creative works.

Copyright is one of the longest-lasting rights, typically lasting the length of the life of the original creator – plus several years thereafter. (In the case of photographs this is usually 70 years following the life of the photographer).

In most countries, and under unified copyright convention (the Berne Convention, specifically) copyright is considered to arise at the point of the creation of the work and can be broadly enforced.

As such, whenever a copyrighted work is created (or “affixed”) is then attracts copyright status.

It is considered to be an “automatic right” although in certain countries (e.g. the United States) it can also be registered with the intellectual property office which provides a further benefit in certain cases.

In essence, copyright confers the creator or author of a work with a set of moral and economic rights to the work.

Moral Rights

Moral rights typically involve rights to attribution and authorship, as well as the use of the work in a non-derogatory fashion (e.g., use of the copyrighted work in a way that contravenes the original intended use, and in doing so undermining the creator).

Attribution based rights grant the copyright holder the right to: be identified as the creator of the work; as well as not be attributed as the author of work that you did not create.

Derogation Example: Celebrity Publicity Shot Misuse

This right may be enforced if an image of a celebrity was created for a publicity piece then used in a highly critical way.

The derogatory usage here may impinge on the creator’s moral rights, as they had created the image to promote not damage the reputation of the person appearing in the image.

Attribution and constraints around usage are a very powerful way of maintaining control and boundaries around the use of the copyrighted work and is something that image creators and photographers should be acutely aware of.

It is important to note that you are not able to give away or sell moral rights associated with work.

Economic rights

Economic rights grant the owner of the copyrights to a work a set of financial claims over its use.

In this way, as well as having the right to determine the use of the work, the creator of a work also has the right to benefit economically from it.

Copyright holders can deny or permit:

• Copying of the work
• Rental or lending of the work
• Exhibition of the work in public
• Broadcast (including internet broadcast)
• Adaptation of the work into a new format, including translation

In doing so, a copyright holder can grant a license to those using the images for them to partake in these activities for financial consideration.

In addition, a copyright holder can assign economic rights to a third party – which may also be undertaken for financial consideration. This would then give the assignee the exclusive ability to grant their own licenses for use.

Notably, a copyright holder can sell or transfer their economic rights to another person or business.

It is important for creators to be aware of when and where they are doing this, insofar as retaining and controlling economic rights over their works is key to controlling the financial consequence from their creative work.

If you are looking to create a license or assignment for your work, our team can assist you. Get in touch with our experts by clicking the button below.

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Employment and copyright

Do note that the creator of work retains copyright and associated moral and economic rights to the work unless they are an employee of a business and the work is created in the course of typical working activities.

In this case, the copyright for the work then reverts to the business in question.

Where the creator is working for the business in a freelance capacity, or as a contractor – they may still own the copyright to the work.

As such it is typical for professionals to have agreements in place to assign copyright to the company as part of the agreed work in these circumstances.

Granting not only usage rights but assigning copyright to the business in receipt of creative work is an opportunity for creators to derive greater financial reward for their work.

Example: freelance assignment of copyright of a photograph

A freelance photographer has been hired by a clothes company to produce a range of images. These images are printed on a range of t-shirts – which later when sold had become incredibly popular, selling millions of units.

In relation to their work – the photographer can contractually negotiate:

1. A royalty for licensed use – typically the amount the image would normally be sold for in the marketplace
2. A percentage of profits, an amount proportionately related to the success of the t-shirt sales and the images’ relevance to that
3. An assignment of copyright to the company, at a static higher price, allowing them to use the image in perpetuity how they wish

Many times, photographers, or other freelancers may not be aware of the possibility of securing lucrative economic rights for their work. As such, many copyright holders tend to sell themselves short as they are unaware of the legal nuance.

Effective negotiation is key to balance the clients’ prerogative with your own financial remuneration for work.

Definitions here can be a bit of a grey area, as such, it is important to contact a specialist if you are a freelancer and you anticipate that your work will be used within considerable business activity.

If you have an issue relating to copyright ownership, freelancing or assignment of copyright, get in touch with our team by clicking the button below:

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If you would like a more in-depth description of copyright, please click here to read our dedicated “what is copyright blog”.

Part 2: How do you legally protect photos? Copyright and photographic images

Now we understand what copyright is and how it works, we can look to apply this concept specifically to the protection of photographs.

Photographs are a visual creative work, which are, in essence, created at the point where the shutter button is pressed. Light hits the film, or electronic sensor, “fixing” the image.

At this point, the image attracts copyright, and as such, confers the above moral and economic rights to the image creator.

Copyright protection over the image lasts for the lifespan of its creator plus 70 years.

Notably, this status is afforded to the copyright holder until the point where they assign or license the rights associated with the work to someone else – unless the work is created as part of their typical working activities as an employee.

It is commonplace, however, for photographers, to grant rights to the use of their images without being entirely aware of this – for example through terms and conditions of an online media network.

This among several other practical considerations are important for photographers to think about prior to operating as a business.

Part 3: Practical Considerations for photographers

The main practical considerations for photographers when it comes to copyright are as follows:

Number 1: There is no need to register

Copyright is an automatic right.

As such, there is no requirement for the owner of copyright to register a photograph to assert copyright protection.

This may be useful in the United States of America and other countries which offer registration services for copyright at their respective intellectual property office – but it is not essential to gain protection.

It can be useful to do so, as it helps with the documentation process, especially insofar as it comes to enforcing in the countries that have a registration regime.

• There is no need to register copyright
• Only consider registration in jurisdictions where this can be registered with the relevant intellectual property office
• Be wary of online services touting the ability to register copyright, as 99% of times these offer little legal benefit that cannot be attained by effective record-keeping

Number 2: Mark your work as copyrighted, use watermarks and low-res thumbnails

Whilst there is no onus on the copyright holder to register their photos as “copyrighted”, photographers may benefit from adopting a number of different techniques to deter copyright infringement and maximise the economic benefit they get from their photographs.

The first of these is to clearly mark their work as copyrighted.

This can be done by declaring copyright on each page of a personal website (typically in the footer) as well as alongside each instance of the image (e.g. in the annotation / comment that appears alongside each image). This is typically undertaken by stating

” © Copyright [Entity or Individual Name] [Current Year]”

As such, this article may have the annotation:

” © Copyright Virtuoso Legal 2021”

This may also be included in the image as part of a small watermark.

Including a declaration of copyright in this way lets those viewing the image know that you consider the image your intellectual property and thus would seek to assert your moral and economic rights over it.

This acts as a deterrent for copycats, as well as provides more substance to a complaint should copying occur.

Watermarks applied over an image as well as the use of lower resolution images in examples shared online (e.g., on social media etc.) will also reduce risk and capability for infringers to meaningfully copy work.

You may also use very subtle watermarks as a largely invisible artefact, proving that you have processed the image.

Be aware that should full resolution images be made available online without watermarking – that it would be much easier for a would-be-infringer to appropriate and derive value from photographs.

• Mark your work as copyright to alert the public of your awareness to your rights, and deter would-be-infringers
  
• Use watermarks and low-resolution thumbnail version of images to make sure that images are far less likely to be appropriated – especially on images which you deem to be the most valuable
  
• Remember that if an image has been shared in its final, un-watermarked full resolution format online, this is much easier for bad actors to appropriate and use for their own means
  
  

Number 3: Be aware of what you sign up to

Nowadays many photographers make their name online.

Simply put – it is easier that even for a photographer to get their work in front of an audience on the internet, and especially by sharing work on social platforms.

However, it has also become equally as easy to “sign rights away” to images when engaging with various resources online.

For example, the use of social media platforms, within terms and conditions, typically grant the social media platform (e.g., Instagram) a perpetual license over the images which are shared there – this can be wide-ranging and also potentially include a scope of economic rights.

Typically, the platform would not use these cynically (e.g., to sell images) but they may, for example, use images posted in advertising and other activities lawfully without needing to pay or seek permission from the owner.

In fact, legally speaking, to reproduce the image on a different computer and to its audience, the company (e.g., Facebook) need to reproduce electronically it under license typically granted in terms and conditions of use.

Regardless, when engaging with platforms including social media, stock libraries and even cloud storage – it is important to be aware of which rights are being granted to the service provider.

Common parlance is “if you are not paying, you are the product!” In this way, part of that value can be the images you have shared being made use of by the platforms providing you with free services.

For people who are seeking to retain rights surrounding their images, a careful approach to what you share online and where, is recommended.

• Be aware of the terms and conditions of platforms and services that you use online and how this affects your copyright status

• If you are experiencing an issue related to the use of an image because of it being shared online, review the relevant agreements to ensure that you retain legal standing

• Again, sharing watermarked, low-resolution versions can ensure that your high-quality final versions are retained

Number 4: Keep comprehensive records and get to know “metadata”

A big part of enforcing a copyright claim is to effectively be able to prove that copying has occurred.

In some instances, a similar work may have been created incidentally, so it is important to be able to prove that your photograph has primacy and that it was in fact copied by the infringer.

To do this, it is a good idea to keep comprehensive records of the creation and processing of your photographs.

This will ensure that you have dates of creation and editing which can become highly relevant when comparing to other images which appear to infringe.

The good news is that most digital cameras encode “metadata” on images at the point of creation.

A range of digital information encoded as metadata becomes a “part” of the image data (albeit not displayed visually) including things such as:

1. Time and date of creation
2. Camera settings and model (e.g., lens settings and aperture etc.)
3. Geolocation information (where the camera is GPS enabled and setting are set)

You can also sometimes set automatic metadata so that certain information is included with the image automatically through processing software such as Adobe Lightroom and others.

Many photographers will, for example, put their license declaration and copyright information within the metadata of all their images upon processing.

Again, this can be very useful and convincing when a copyright infringement claim is experienced.

Be aware also, that certain processes which duplicate or result in loss of data (e.g., transferring an image from one file type to another) can scrub metadata and lose this vital information. As such, it is often useful for photographers to consider metadata and its appropriate handling when they work out their workflow from creation of the image to final export and distribution online.

• Keep documentation and records in relation to the creation and processing of images – this may be useful if copying occurs

• Become familiar with metadata and ensure that your key images retain metadata which is relevant to copyright throughout your workflow

Part 4: Copyright infringement

When a creative work, including a photograph, is used without the permission of the copyright holder, this is known as copyright infringement.

In essence, unauthorised use infringes upon the creator’s moral and economic rights over the work – and is something that the creator can seek redress for.

The redress they are typically able to seek is either:

1. A “reasonable royalty” – which typically results in the amount that it would typically cost to license the copyright material
2. An “account of profits” resulting in an amount relative to the profits made through use of the infringing work.

The best remedy sought by someone who has been infringed can depend on which is most beneficial to the infringed party, and indeed, which one is most likely to be awarded because of the proceedings.

When infringement has occurred it very important to contact an intellectual property specialist – as they will be able to ascertain the nature of the claim and help identify the best resolution.

Notifying the alleged infringer can also cause problems – as they will then likely “take down” the material, limiting the ability of the copyright holder to gather evidence needed to enforce their claim.

Please contact us if you are experiencing an issue relating to copyright infringement and we will be able to provide you with an solution outline and a quote if commercially appropriate.

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To read more about copyright infringement, read our blog here which covers the topic in depth.

Part 5: Social Media: Facebook, Instagram, Twitter and More

At Virtuoso Legal we often receive enquiries relating to misuse of images on social media.

Images that are shared on social media become widely available across the networks they are shared – and often far beyond what individuals originally intend when sharing.

It is important to note that the use of these images by the platforms themselves (e.g., Facebook) is likely legitimate, and legal on the basis of terms and conditions of use.

However, if an image is shared on a social media platform and is appropriated by another user of the platform that may constitute copyright infringement.

This is because the platform typically has rights over the use of your image (e.g., Facebook sharing your image) but you do not have an agreement with other users.

This is, however, a bit of a grey area. As such, if you are experiencing an issue in relation to this – please contact our team below to find out more.

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Part 6: “Image rights”: and the Rights of those Appearing in Photos

Within the UK there are no legally recognised "image rights" as widely understood in the public sphere - though these do exist in one form or another in other countries (e.g. Italy).

Despite this, disputes emerge from time to time relating to the appearance of individuals in images, particularly as it relates to high-profile individuals. 

Legally speaking such issues, depending on circumstance would need to be approached via copyright, passing off, data protection or other avenues.

In most jurisdictions, this remains a grey area and claims are likely difficult to enforce unless a significant infraction has occurred (e.g. use of a high-profile celebrity's image on clothing).

If you are an individual who is experiencing an issue in relation to your appearance in an image that has been used in the course of business, contact our team to find out whether you have legal recourse by clicking the button below.  

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Conclusion

Photographers can often create hundreds of images a day – each of which attracts copyright at the point they are created.

It is important for photographers who are seeking to build a financial base around their work to understand how copyright, and in particular the moral rights that it imparts impacts them and their work.

But being conscientious of copyright prior to any copying event will put photographers ahead of curve in protecting and enforcing their economic rights over their work.

If you are a photographer and you would like some legal advice around copyright protection and establishing a workflow, get in touch with our team by clicking below.

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Disclaimer: This Virtuoso Legal article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own solicitor on any specific legal questions you may have concerning your situation.​