Photo Copyright and Release 101

[nautical62]

I'm not sure if this is the proper forum for this, so any moderator please move it if appropriate.

Many cruisers here take images of their trips, of people on their cruise, or may come across images taken by other people they wish to use. As I was posting some photos today, I came across a few situations that made me think I should share my knowledge of image copyright and release. I'd like to preface this by saying, my knowledge is mostly U.S. based and also that I don't claim to be an expert or lawyer, so none of this should be taken as legal advice. I am only an hobbyist photographer who has read up on this and I present my understanding for purposes of general knowledge and awareness only.

Copyright Basics:

In the U.S., in most all circumstances, an image is copyright the instant it is created by the creator of that image (photographer). An image does not have to be registered, say "copyright" or have a copyright symbol on it to be copyright. In addition to the U.S., there are many cooperating Berne convention member nations.

There are some "fair use" purposes in which a copyright image can legally be used including educational and editorial use. However, a common misconception is that if an image is displayed on the web it is in public domain and can be legally copied and used. If you grab an image from someone else's website, you may be violating the owners copyright to that image. While this is common, there are now special search engines which search for such copyright violators.

In addition to compensatory damages, copyright infringement can also carry statuatory damages. These awards can be very high. In order to receive these damages, (in the U.S.), the owner must have their images registered with the copyright office of the library of congress. This is now easier and cheaper to do than it previously was. This fact combined with with common copyright infringement is causing more and more photographers to register their images.

In addition to fair use, you can use someone else's copyright photo when you have been given license or useage rights to do so. In the U.S. this does not legally have to be in writing and can even be implied. Transfer of copyright needs to be in writing. Again, posting an image on the web, does not necessarily infer other people have license to copy and use it.

Image copyright infringement is much like illegally downloading music: It happens all the time with no consequence, but every once in a while, someone gets caught and pays the price big time.

The official government site on copyright is actually one of the few things I've ever seen posted by the government which is fairly easy to understand. I suggest you go there for more "official" information regarding copyright:

Copyright Office Basics

Public display of images of other people/release.

There can also be a lot of confusion surrounding the issues of posting images of other people and what rights you may have to an image someone took of you.

As mentioned above, ownership and copyright of an image lies with the creator of that image. As a subject, you have no inherent right to that image. What you do have are others rights which a photographer (or other user of that image) does not have the right to violate. The most common of these is rights of privacy, but defimation of character and issues of being wrongfully associated with something are examples of other issues that may apply. The fact you as a subject do not have copyright to an image is exactly why places like walmart photo labs will not copy and print professional looking images without a license agreement from the photographer.

A general guideline regarding getting into trouble over rights of privacy is to ask yourself if the person you may be photographing first can be recognized and if so are they in a situation or location where they have an expectation of privacy and also if you portray them in a negative manner which may offend them.

The above however, has it's limitations because unlike copyright, rights of privacy laws can vary from place to place. Some states in the U.S. have very tough rights of privacy laws, some have almost none at all. Many countries provide more privacy protection than does the U.S., so think about this when cruising in other countries. (My understanding is this can include public beaches)

The end use of an image can also come into play. An image may be able to be used in one application and not violate a persons rights, but may in another. For example, commercial use of a persons image is more likely to violate their rights than private use. Since the end use can matter, often taking an image is not a violation of a person's rights, but rather publishing it, or making it public is. For this reason, it may also be the person making the image public, not the photographer who is violating the law. In other words, just because someone gives you an image of someone, doesn't mean you are free to use it in any manner you please. It is your obligation to make sure it is properly released for your intended use.

Releases: A release is basically a statement from the subject that you have the right to use their image in all or some circumstances and in doing so you are not violating their rights. Like usage rights, a release does not have to be in writing and can even be implied. (Of course any agreement, not in writing can be difficult to prove.) Since the laws which may require a release, vary so much from place to place, many photographers just get a release as a matter of course. This practice can lead people to believe someone always needs permission in the form of a release to publish a photo of someone. This is not the case. One only needs a release when the image may be breaking the subject's rights.

I find the following a good explanation of the issues surrounding someone taking and using images of you. It is written from the perspective of someone who is a model, but would apply to anyone who has an image taken of them:

All About Model Releases

Again, I don't pretend to be an expert, but thought this might serve to raise some people's awareness of issues surrounding image use as you publicly share images here or elsewhere.

[Janet H]

Thanks for the detailed info
We occasionally do have a report of copyright infringement and take quick action to establish the veracity of the claim and take action. Your post mirrors some of the language from our rules:

Do not post protected / copyrighted content:
Information copyrighted or owned by any individual or entity other than the member should not be posted on the discussion forums without the consent of the owner. Copyrighted material includes images and text produced and owned by others. If such an event occurs, the individual posting the information shall be held solely responsible. You cannot legally post entire articles or news in the forum without permission from the copyright holder. Even if you attribute the article correctly it’s still copyright infringement. Under Fair Use provisions you can legally post a small abstract of an article - or perhaps the opening paragraph. The exception to this rule is press releases; they are meant for distribution and can be copied and distributed. If you are not sure if you can copy something then always err on the side of caution and simply post a link to the material.

[nautical62]

Thanks Janet. I see the rule you posted includes a very important misconception I missed, and that is the false belief that quoting a source means one is not violating copyright.

A point I forgot to mention about releases: For the reasons I mentioned above under that topic, many publishers will not accept photos submitted for publication of a person who can be recognized without a release, so if you have taken a great image you want to submit somewhere, obtain a release from the person in the image before you part ways.

[hellosailor]

There are also various state laws that may apply, such as expressly prohibiting the use of a person's likeness or identity for commercial purposes. That's typically why you need a signed model release.

And, even under the Berne Convention, in the US if you haven't registered the work you are not automatically entitled to the same compensation that you would receive if it had been registered. The Copyright Office has had great pamphlets explaining the US laws very clearly for ages now. First by faxback (before there was a public internet) and now on the web.

[delmarrey]

So lets say your in Somalia, who's going to prosecute you?

Don't get me wrong, I'm for the law but how can it possibly be enforced? It's kinda like PhotoShop'n child porn. An adults body with a child's head.

I'm sure the US and other modern governments will track you down if your making $$$ from it but can they cross borders to do so or just pull your servers plug?

[hellosailor]

International enforcements and prosecution for almost anything ARE possible and folks often get surprises. Like the folks who used offshore banks and credit cards to hide their income form the IRS for most of a decade--until the IRS and some diplomatic threats of reprisal got those banks to surrender customer lists and data. Ooopsie.

And then just recently, perhaps you read about how UBS has made a deal with our IRS and the financial papers are talking about "the end of Swiss banking as we know it" as, again, confidential data is being turned over to allow prosecution?

Heck, even the Chinese are making token attempts to prosecute forgery rings. Any Disney DVD you want, full color professional packaging, identical to the one that sells for $20 here in the US, only $1 in China. Not much crack down, but they're making noises and motions.

Back to your original question, in Somalia, your local warlord will prosecute you. After all, he's the one that allows you to have electricity and water in some random fashion, once in a while. Isn't he?

But in most of the non-failed states, there are international treaties, mutual enforcement, and diplomacy to deal with. Sometimes...they catch up with the players. At other times, the players have simply paid off enough folks to stay safe.

[GordMay]

A created work is considered protected by copyright as soon as it exists.
However, many countries have a national copyright office, and some national laws allow for registration of works for the purposes of, for example, identifying and distinguishing titles of works. In certain countries, registration can also serve as prima facie evidence in a court of law with reference to disputes relating to copyright.

From the U.S. Copyright Office:
About Copyright
Copyright Basics
Frequently Asked Questions (FAQ)
and MUCH more ...
U.S. Copyright Office

From the Cornel University Law School:
Berne Convention (for the protection of literary & artistic works) ...
BERNE CONVENTION, AS REVISED

The World Intellectual Property Organization FAQs:
Copyright and Related Rights - Frequently Asked Questions

[MarkJ]

Having delt with wavers and copyright for yonks... can I tell you that in reality anything you own (photos videos etc) you put on the web can and will be used (if good enough) by anyone anytime, so get used to it. Try and sue and you'll be laughed out of court and have huge bills to pay. Your own image or photos you have taken are not really worth diddly-squat.

Running websites and forums, unless its blatant commercial misuse, the showing of a photo or video linked form another site is going to happen, so just let it happen the world won't fall on your head. The most that will ever happen is you will get an email asking you to take it down.


Mark

[nautical62]

Originally Posted by MarkJ

Having delt with wavers and copyright for yonks... can I tell you that in reality anything you own (photos videos etc) you put on the web can and will be used (if good enough) by anyone anytime, so get used to it.

I agree that anything put online can easily be copied at its present resolution, but that doesn't mean it's legal, or acceptable.

Originally Posted by MarkJ

Try and sue and you'll be laughed out of court and have huge bills to pay. Your own image or photos you have taken are not really worth diddly-squat.

If I recall correctly Mark, you are in Australia and I can't speak knowledgeable about copyright law and enforcement there. However in the U.S., the main consideration for an attourney will be whether or not the copyright holder registered the images with the library of congress. If they have, the law here allows one to fairly easily collect statuatory damages. These are punitive damages that are not related to compensnatory damages, so it doesn't matter if the images are worth squat or not. Because of this there are many lawyers who will take on such cases on a contingency fee basis if the images have been registered. I've seen several posts in photography forums from lawyers wishing to take on infringement cases involving registered images. Registering of images is now cheaper and easier than ever before, so more and more photographers are taking this step. There are some attempts under some proposed versions of the orphaned works bill (again, U.S.) to reduce these awards, but for now they can be quite high.

Originally Posted by MarkJ

Running websites and forums, unless its blatant commercial misuse, the showing of a photo or video linked form another site is going to happen, so just let it happen the world won't fall on your head. The most that will ever happen is you will get an email asking you to take it down.

That's all that is likely to happen but in some cases, especially commerical use cases, there has been no warning, they've just been sued. My understanding (not legal advice) is that hyperlinks and thumbnail use of images for links fall under fair use, at least in the U.S. and therefore is not copyright infringment. It's also my understanding that who is responsible may depend on the nature of the site and who is actually posting the image. I'm fairly certain myspace successfully defended a case on this ground not too long ago. (They argued they offer the webspace, but they themselves are not the publisher of images people may post and therefore not the infringers.)

As I said in the orginal post, copyright violation happens frequently with no consequence. I'm not arguing minor violations are likely to land one in trouble. However, that doesn't mean people never get caught and prosecuted. I recently saw a round table about this issue which featured several photographers who had succesfully sued for copyright infringment and the awards they received were not small. In lines with a comment you made, this was usually related to commerical use of registered images, but not always.

Again, I never claimed small copyright violations frequently are prosecuted. I wrote the original OP, just shed a bit more light on this frquently misunderstood topic. Copyright was also only half the OP. I'm also aware of many cases where photographers unfortunately were not able to publish images simply because the images were not properly released. If you have images you might like to submit for publication sometime, get a release!

GordMay, gives many useful, links from reputable sources including the official library of congress copyright office link I gave in the OP.

[Sandero]

This is an interesting discussion. Now for practical matters.

Say you take a photo and put it up on the web. And someone objects, their image, let's say. They can ask it be removed or sue for that and or sue for damages.

How do you figure out damages? And how much does it cost to prosecute such a claim in the courts?

It feels like this only makes sense when serious monetary claims can be pressed with the likelihood of a favorable judgment. Otherwise it might be a bunch of threatening letters.

What say you?

[MarkJ]

Originally Posted by defjef

How do you figure out damages? And how much does it cost to prosecute such a claim in the courts?

...What say you?

I say your image is worth nothing. A celebs image kissing the wrong person is worth something, but you and me and my turtle photos are not worth anything.
So if we take someone to court who has used it on the net linking from our own website or blog to cruisers forum (for example) the judge in any country will throw out your claim as being frivolous and you will probably have to pay your lawyers costs and maybe the court costs.

The reality is... reality I am talking about, is don't be precious about your image etc that you splatter about the internet, or any photos of video that someone takes of you and later uses.

Sometimes in the modern world we all get a bit litigious because on the face of it we have a claim. However the internet has changed all and everything. And all the celebrity crap has done similar.

Any pro photographer trying to sell photos will have his work watermarked.



Mark

[nautical62]

Originally Posted by defjef

This is an interesting discussion. Now for practical matters.
How do you figure out damages? And how much does it cost to prosecute such a claim in the courts?.

What say you?

Unlike many other civil claims, on the U.S., infringement awards are not based just on the value of the image, potential loss and compensatory damages. If the images have been registered, the infringer may also have to pay punitive, statutory damages which can be substantial. These are usually more if it can be shown the infringement was made knowingly. That's why it's valuable to put a copyright symbol on your images. As GordMay said above, they are copyright the second you create them. However, when you add a copyright symbol or otherwise say they are copyright, there is little room for doubt the infringement was intentional, which likely result in higher punitive awards.

I can't give you any specifics about court costs. I'm sure it varies depending on how much of a defense is put up. Most cases are settled out of court anyways. I'm fairly sure one can not sue for copyright infringement in small claims court. Since one can collect the statutory damages, I believe many who sue, don't spend much effort (read $$) on proving the value of the images. I imagine most lawyers will not take on a case against someone who has no ability to pay, even if it's a clear cut case.

The important thing to understand about image copyright infringement in the U.S. is that is carries statutory damages (for registered images) and that changes everything when compared to many other civil issues.

Again, I post this just to raise awareness of some of the issues related to image use. There are many misperceptions about what it means for an image to be copyright, what public domain means and what issues are associated with images of people.

As for your specific example, where I will agree with Mark, is that if the image is on a private site for fun, not commercial, I think it's very unlikely you'll get sued off the bat. It's more likely, you will be informed that the image is copyright and asked to remove it. Most photographers don't want to sue, they just want to protect their intellectual property rights.

However, your only danger isn't from the photographer, but possibly a company that paid top dollar to have exclusive rights to an image that you took and displayed for free. This could ruin a very expensive ad campaign for example. One magazine I frequently sell images to, insists images never be displayed online until after their publication release for this reason.

[nautical62]

Originally Posted by MarkJ

....Any pro photographer trying to sell photos will have his work watermarked.



Mark

Two comments on this:

1. This has not been my experience at all. (Again, perhaps there are different ways of going about this in different locations.) Take a look at the stock photography sites such as Istock for example. You will find most images are not watermarked. Obscuring part of the image limits its sales potential. Most professional photographers I know, register their images as their primary source of protection. Their protection is not in preventing an image from being copied, but rather in the knowledge they can obtain statutory damages if it is. (As you have said, anyone who knows anything can get around right click and other similar protections.)

Sources I submit (sell) images to would laugh and turn me down immediately if images I submitted were watermarked. I also sell framed prints and like most photographers take this seriously. Ever known anyone who buys framed art with a watermark across it? Ever see a coffee table book with watermarks across all the images? Many art photographers don't even sign the print itself, let alone water mark it. (I sign on the mat or print border if there is one.) Most all images I see for sale are not watermarked.

2. An image doesn't have to be for sale by a photographer to enjoy copyright protection. As mentioned several times in this thread, an image in most circumstances is copyright by the creator, the second it is created.

[nautical62]

Originally Posted by MarkJ

.....Your own image or photos you have taken are not really worth diddly-squat.
Mark

My images or photos are worth exactly as much as what someone is willing to pay for them. I have check stubs which indicate that since January 1, people have paid about $US 2,500 for my images. (mostly wholesale, add 50% for eventual retail) (My actual profit from that is sadly very small.)

My point is that what may appear to you to be diddly squat and of no consequence may in reality have important financial consequences and be considered valuable intellectual property by the copyright holder. It may even be their livelihood. You never know. What you should know, is it's theirs, not yours.

My images may also be worth the statutory damages I receive (after paying the lawyer - dang they are always the real winners in these things aren't they?) in a copyright infringement case.

I'll add that while I'm certainly no expert, I have had some experience selling images, books and art prints. I know some cruisers have wondered about these doing these things on the side - I'm happy to share my experiences and thoughts as limited as they are.

[MarkJ]

Originally Posted by nautical62

. I have check stubs which indicate that since January 1, people have paid about $US 2,500 for my images. (mostly wholesale, add 50% for eventual retail) (My actual profit from that is sadly very small.)

Of course its totally different to a professional who is getting ripped off by people making money illegally from your work.

I am talking about general people and their general piccies they snap while cruising and put on their blogs, websites and forums like this. I am saying those non-professional snapshots should not be jealously guarded with a "If I see it on the net I am taking you to court" approach.

Similarly I am saying forum users of forums like this should not be in fear of putting photos up in their posts if using it as an example, or other use thats not a blatant rip off. I just put up a photo of a radio ripped off the net, the radio manufacturer may or may not have it copyright (or whatever) but I don't need to worry, nor should other users or the forum owners.

Like the music industry, professionals affected by the internet must realise this technology is here to stay.


Mark