What do photographers need to know about intellectual property?

Photo by Trevor Brown on Unsplash

Words by Todd Bateman
 

Introduction

Photographers often create hundreds of images every day and in doing so they are (whether they know it or not) engaging with intellectual property in a meaningful way.

Awareness of intellectual property can benefit photographers significantly, helping them monetize and sell their images. Equally, a lack of awareness can cause problems down the line, should they find others use their images without permission.

In this article, we will take a look at the main intellectual property rights and considerations that photographers benefit from being aware of and how this can benefit them.

Let's get started!

The different IP rights that photographers should be aware of

There are a number of different intellectual property considerations that photographers need to be aware of, whether they are working professionals or amateurs who create and share their images from time to time.
These include but are not limited to:

• Copyright
• Licensing and commercial rights to images
• Privacy and data protection
• Trade marks

In the following sections we will cover these rights, considerations for photographers, common questions that we get asked and provide some examples of this in practice.

Why are you best able to speak about this?

Virtuoso Legal is an intellectual property specialist law firm, helping businesses and creators protect their ideas via copyright, trade marks and other forms of IP rights. the firm was established in 2007 and works exclusively in this area, with dedicated solicitors who have decades of specialist experience in this area.

If you are a photographer who needs help surrounding copyright, alleged image rights or anything else, do not hesitate to contact our team for support.

Can photographers put photos of other people on public display?

In the UK, there are no specific laws regulating whether photographers can put photos of other people on public display. However, there are a number of potential legal issues that could arise from doing so, and as a result, it is often important for photographers to careful and considerate approach.

Identifiable subjects

For example, if the person in the photo can be identified, then the photographer could be accused of breaching their right to privacy. If the photo is taken in a public place, then there is a risk that the photographer could be accused of trespassing if they entered private property to take the photo. (If the photo is taken within private space, and of people in a private setting, this also requires informed consent). For example, if the photographer takes an image from public space through a window into a residence, this will be infringing on someone's privacy within their home.

Defamation

There is also a risk that the photographer could be sued for defamation if the photo was taken in a way that could be seen as derogatory or offensive to the character of the people presented. For example, should a photographer take images late at night outside entertainment venues, participants who are intoxicated or in a state of duress may consider images which present them negatively as defamatory should they be disproportionately presented. 

Commercial use

Furthermore, should the image be planned for use in a paid commercial context (i.e. a magazine or online advertisement), best practice means that a signed participant release form is completed, though these are more commonplace in video, broadcasting and film.
Typically, commercial photography is highly staged and prepared, meaning that identifiable subjects within images are typically models or paid subjects.

Overall, while there are no specific laws in the UK prohibiting photographers from putting photos of other people on public display, there are a number of potential legal risks that could arise from doing so.

Depending on the type of photography being created it is important for photographers to be careful and considerate around other people's involvement in their images.

Photographers and copyright

Notably, the copyright for each image comes into existence at the point that they are created.

Copyright law in the UK protects photographers by giving them the sole right to control the use of their images. This means that anyone who wants to use a photographer's image must get permission from the photographer first.

In essence, this provides the creator of copyright work with two sets of rights: economic (i.e. the right to benefit financially from the photo) and authorial (i.e. the right to be attributed and associated rights). It is possible to sell or transfer economic rights, but it is not so for authorial rights i.e. this is commonly achieved by licensing the rights to an image to a commercial entity.

There are a few exceptions to this rule, but generally speaking, if you are a photographer in the UK, you have the right to control how your images are used. This includes the right to decide who can use your images, how they can be used, and how much they will be paid for the use of your images.

If you are not careful, it is possible to give away your copyright without meaning to. For example, if you sell your image to a stock photography agency, you may be giving away your copyright along with the sale. Be sure to read any contracts carefully before you sign them to make sure you are not giving away more rights than you intend to.

How to maximise copyright protection

As above, copyright comes into existence at the point that new work is made - so it does not have to be registered in the same way that some other IP rights do.

Despite this, there are a number of ways that photographers can be savvy around their copyright to prevent infringement.

• Use a copyright notice. This should be placed on all image annotations, and should include the photographer’s name, the date the image was taken, and the copyright symbol. This will make it clear to anyone who views the image that it is protected by copyright and should not be reproduced without the permission of the photographer.
• Use a watermark on images. This is a logo or other mark which is placed on an image in order to show that it is the property of the photographer. Watermarks can be placed on images electronically, or they can be added when the images are printed.
• Share low-res images. A lot of photographers share their work online, via various platforms in order to generate interest in their work. However exposure goes both ways. and sharing full resolution images may allow others to exploit them.
• Include copyright notices and information in image metadata. Cameras write metadata to images, including things like camera settings, date of creation and more. In many instances you can programme your camera to include copyright information in the metadata at the point of capture - or failing this, apply the same to the information field once the image is imported onto your computer.
• Document the creation of images. Finally, copyright typically relies on chronology to determine when original works have been made - and whether an alleged infringed work had been copied. Documentation of when and where work was made is key when claims arise to avoid issues relating to the primacy of other work.

Licensing and selling commercial rights to images

There are a variety of ways that photographers can license and/or sell commercial rights to photographs in the UK. One way is through stock photography websites.

These websites allow photographers to upload their photos and then sell the rights to use the photos to businesses or individuals. Another way is through a direct licensing agreement with a business or individual.

This type of agreement typically involves the photographer setting a price for the use of the photo and then the business or individual paying that price.

Finally, some photographers sell prints of their photos. This allows businesses or individuals to purchase the physical print and then hang it in their office or home, though this does not involve an assignment of copyright, which is typically still held by the photographer.

If you are a photographer looking for help assigning or selling commercial rights to an image or images, get in touch with our team for support.

Image rights, privacy and data protection

In the UK, there are laws in place to protect an individual’s right to privacy and data protection. These laws apply to images that are taken of people, whether they are in a public or private place.

If an individual is identifiable from a photograph, then they have a right to privacy under the Human Rights Act 1998. This means that they can object to having their image used without their permission unless there is a legitimate reason for doing so.

There are also data protection laws that apply to images that contain personal data. This includes images that are taken in a private place, such as a home or office. These images can only be used with the individual’s permission, and they have the right to object to their use if they feel their privacy is being infringed.

It is important to be aware of these laws when taking and using photographs, as you could be breaching someone’s rights if you do not adhere to them. If you are unsure, it is always best to seek permission from the individual before taking or using their image.

If you require guidance in relation to this, whether as a photographer or someone who has appeared in an image, get in touch with our team to find out more.

Trade marks

Finally, it is quite important for photographers to have a grasp of trade mark law.

Whether you include trade marks in your images (e.g. shots of Mcdonald's, Coca-Cola, Disney logos etc.) or you are establishing a brand around your photography, it can be important to understand how trade marks come into play.

Trade marks in images

Trade marks can be found on anything from products to buildings, and if you capture them in your photos, you could be infringing on the trade mark owner's rights. This could lead to legal action against you, so it is important to be cautious when taking photos that contain trademarks.

There are a few ways to avoid infringing on trade marks in your photos. First, try to avoid taking photos that focus on the trademarked item. For example, if you are taking a photo of a product, don't make the trademarked logo the main focus of the image. Instead, focus on the overall product. Second, you can edit your photos to crop out or blur any trade marks. This is a good option if the trade mark is not essential to the photo. Finally, you can get permission from the trade mark owner to use their logo in your photo. This is the best way to avoid any legal issues, but it may not always be possible.

Ultimately, trade marks function as a designation of origin, and if included in your image seems to suggest that your photo originates from the brand included, it is best to avoid using the image. By being cautious of trade marks, you can avoid any legal issues and ensure that your photos are not infringing on any rights.

How photographers can benefit from registering a trade mark

A trade mark can be an incredibly valuable asset for a photographer. It can help to distinguish their work from that of others in the same field and can also help to build a strong reputation.

A trade mark can also be used as a marketing tool, helping to promote a photographer’s work and attracting new clients with a unique visual presence or name.

There are a number of benefits that come with trade mark registration, including the exclusive right to use the mark in relation to the goods and services for which it is registered. This means that anyone who uses the trade mark without permission could be liable for trade mark infringement. If handled correctly this can protect a unique look and feel for your photographic services in the wider marketplace.

Conclusion

In this article, we have reviewed a number of different intellectual property and data protection issues that photographers may experience.

We have also discussed the key areas of IP that photographers can benefit from understanding in greater detail. In doing so, photographers are much better equipped to avoid risks relating to creating images, as well as maximise opportunities to stand out and protect their unique offerings in the marketplace.

If you need assistance with protecting your images, creating a unique brand, or dealing with any IP disputes do not hesitate to contact our team to receive an outline of how we can support you.

Happy snapping!

 
For more IP answers, review our FAQ section here.
 
Are you looking for intellectual property support for your business?
 
Contact our team today to speak to a team member about how we can help you turn your ideas into best-in-class assets.
 
 

Contact us
​

Disclaimer: This FAQ should not be construed as legal advice on any specific facts. The contents are intended for general informational purposes only. You are urged to consult your own solicitor on any specific legal questions you may have.