Thursday, August 4, 2011

On the topic of Copyright and Likeness....

Recently I saw an article a friend had posted which covered the basics of where you were allowed to shoot. (i.e. street photography). It made me think that so many people out there who are getting into photography have no idea about their rights to the images they take. On the flip side, so many clients and potential clients do not truly understand basic concepts of what they can and can not do. So I decided to whip up a blog entry which covers the basics on two major areas. All this info comes from several years of operating as a portrait photographer, dealing with clients, and making my own mistakes. Please save yourself some trouble (that I had to deal with) and read on:

First lets look at the topic of Copyright...
Copyright is essentially ownership of the image. When you take a picture using a camera (ANY camera) you own the copyright to the resultant image. This means you own the rights to that image and no one else can use it, publish it, or create copies of it in ANY form without your expressed permission.

This does not extend to just using your own camera. If I borrow a friend's camera and take a picture that picture belongs to me. It makes no difference if I used someone else's hardware to do it.

The only caveat is if you are doing the photography work "for hire". So if someone hires you to take pictures, and the contract is structured such that the photos are owned by the client, then you do not own them. But this must be expressly put into writing. The same thing is true if you work for a company and as part of your job, during working hours (for which you are being paid), you take pictures. Unless something is put into writing those pictures belong to the company since you generated them on work time (same as if you come up with an idea or invent something during working hours that belongs to them as well).

Most of the time, when you do "for hire" work, copyright ownership is jointly held by the client and the photographer. But again.. this needs to be worked out ahead of time. DO NOT WAIT TILL AFTER A "FOR HIRE" ASSIGNMENT TO FIGURE IT OUT! Get it on paper before you do anything. Also make sure that if your employer asks you to do some photography "on their time" that the ownership of the resultant work is understood (and in writing!)

So now.. you own the copyright.. what does that mean? It means only you control how and where the image is used. No one can just make copies without asking you. No one can publish without your permission. This ownership is where most of a photographer's income comes from. You take pictures and sell copies to your clients. You sell publishing rights to magazines, web sites, and so on. You sell usage rights to corporations so they can take your pretty image and put it into a corporate slide show. You sell the rights to a musician who then puts your image on their album cover. NO ONE ELSE can make any money off the images without your permission.

So lets take a look at some examples..
Lets say I sell you a print of one of my images. Now you "own" the print itself. Which means you own the paper and the ink used to generate the image. You also own the "right" to display the image in the normal ways you would do that.. on the wall, in a frame.. etc. This is no different then if you buy a CD from the store. You own the plastic, paper, and metal which make up the CD and it's packaging. You also own the right to listen to the CD on your stereo, or maybe even play it during a gathering at your house.

But do you OWN the image? Absolutely not. You no more own the image then you would own the song that is on a CD. You have no rights to the image to do anything other then look at it in the formats which you purchase. This means you can not:
  • Make copies of the image using a copy machine.
  • Scan the print and create a electronic file containing it.
  • Hand it to a publisher and have them publish the image in some shape or form. (yes even those engagement announcements in the news paper)
All of the above effectively create new copies of the image, or publish the image in some way. You can not do that. Period. You do not own the rights to the image so you can not create any new work using the image or publish the image in any way.

A 2nd example.. lets say I take one of my images in electronic form and publish it on my web site. In that situation I have chosen to publish the image and am effectively licensing web site visitors to look at the image on their web browser. Some people think that if it is on the net, it is there for the taking.. so they right click on the image and do a "save" to their hard drive.. guess what? You just stole from me. You are NOT entitled to save my image for any use other then viewing it within the context of the web site I have published it in. You can't make it your screen saver, nor your desktop background, and you certainly can not make a print (see above.. same thing). You can not email the file or put it up on Facebook.. why? Because you are effectively publishing it.. which you have no right to do.

A 3rd example... lets say I provide to you (my client) a low resolution jpeg which is a proof of a image. Now you love that image so much that you make it your Facebook profile picture. Guess what? You just broke the law. You *can't do anything* with that file other then look at it on your own computer. You can't even forward the email to someone else to look at because that is publishing as well.

A 4th example.. Lets say you work for a company and you are putting together a in house presentation. You need a particular graphic for a slide. You search the net and find one of my images on my site. It is perfect, so you save the image (somehow) and then put it in your slide. Guess what? You just opened up your company to litigation. Even if you are not making actual money off the image (by using it in house) you are still using it for purposes far beyond what is allowed. In this case you SHOULD have gone to a stock photography site.. picked something from there, and made a micro payment to the owner. You could also have contacted me with your request and I'd probably let ya do it for a small fee.

5th example.. I shot some photos for you of your kids, and now you want to enter them in one of those online baby contests, or one of those mall pageants (which you shouldn't do anyway.. its a rip off.. trust me.. been there done that). So you take one of my shots and give it to them... without asking. Bad idea. Sometimes these places have fine print in that when you submit an image they assume some rights for publishing the photos or using them in some way. Obviously you are not a copyright holder, and you do not have the right to extend that permission to them.. so their agreement with you is null and void.. which means if I happen to see one of my shots in a magazine somewhere I am going to sue you, the company you worked with, and the magazine.

You would be surprised how many people out there break the law by doing any of the above. You would be surprised how many times I have seen clients putting up proof images on Facebook, or have heard about them scanning a print and using it for something. I know it happens more then I am aware. It is just a fact of life. The truth is I am a pretty easy going guy when it comes to my work. As long as you aren't planning on selling my photos I am usually more then willing to let you do what you want with them. I have never turned down a request from a client to use shots for news papers, or even submitting pictures to competitions for their kids. I've shot bands and provided them with tons of pics and given them the right to do what they want... all I ask is that somewhere it says "Photo by Chris Onjian" (or something to the effect of that).

As a photographer it is up to you to protect yourself from people violating your copyright. If you do not protect yourself your right is essentially worthless (And then someone can later claim that since you did not defend your right that it no longer exists.. and they can win). Obviously we want others to see our work, and we want those who buy our prints/etc to enjoy them as well, but we also have to be careful. Most of the time it isn't an issue.. but you never know when you are going to take that one special shot.. that one memorable shot.. which has an impact.. and then somehow some way it spreads across the internet (and thus the world) like wildfire.. and you are left standing in the dust with nothing to show for it because you didn't protect yourself...

(Example.. that person who shot that picture of the last shuttle launch from an airplane as it flew near the launch site.. put it up on a blog.. and it spread all over the world within hours.. )

So what can you do? Obviously you can't protect against everything. But there are some practices you can follow which will help.
  • Never EVER give anyone a high resolution file unless you are giving them "rights" to the image as well. If you ARE going to give someone a file make sure it is a compressed jpeg, no more then 600x400 in resolution. That should be good enough for screen viewing but not really that great for making prints (less then that would be even better).
  • Use watermarking where possible for proofs or examples. Be aware that people can very easily crop out your watermarking if it is just around the edges.
  • Share your images only on web sites which allow you to add "right click protection", and give you control over allowing (or not allowing) people to download the images. I.e. NOT FACEBOOK. Two that I use are Zenfolio, and Smugmug.
  • Distribute proofs on a web site like the above.. never via jpegs sent through the email. Never put your work up on a blog without protections.
  • Wherever your work is published clearly mark the ownership of the image on each page, and also under the image if possible.
  • Make sure your prints are marked (on the back) DO NOT COPY. Most pro papers such as Kodak Endura have this built in. I also suggest creating labels with your name/studio on them and applying them to the back of anything you hand out. At the very minimum if the person takes that to Walmart/CVS/etc and asks for a copy they will flat out tell them no.
  • Password protect online galleries that you do not want open the public (more on this later).
Now.. there will be some times when you DO want to give rights to someone. Maybe they purchased a "high resolution" digital copy and you want to give them the right to make prints. This is very common. In that case all you need to do is write up a copyright release and sign it. They can present that release to anyone who questions their authority.
  • Make sure the release is as specific as possible. Date/Time of shoot, File name or image number, and you may want to include a small thumbnail of the actual image.
  • Make sure the allowed use is as specific as possible. You may want to allow them to make prints, but you might not want to allow them to publish the image in a newspaper. You will most certainly will want control if the client can use the image for commercial purposes. Be as restrictive as possible.
So now lets say you have a client that you take some portraits of. You love how they came out, and you would like to display them on your online gallery. You figure "I own the copyright.. so I can do whatever I want with the pictures".


You may own the copyright.. but if you took the picture of a person you do NOT own the rights to their "likeness". You can not do *anything* with these images other then produce products for the client (in the picture) unless you have their permission. You can't make your own copies and show them to others. You most definitely can NOT put them up on Facebook, or on a publicly accessible online gallery. If you do, and they have a problem with it, then you are in for big trouble. At the very minimum they can get mad and demand that you take the pictures down (and you have to, no matter how inconvenient it is). Even worse they can sue you and anyone that had had anything to do with publishing the images (the newspaper, magazine, etc). This is very bad stuff. ***You do not want to go there***

So what do you do? Simple.. have the client sign a release which allows you to do what you need to do. It should be standard practice to have your clients sign this agreement and it should be worded so that everyone in the images is covered. So lets say grandma hires you to shoot pictures of her two kids and their families. You need to make sure that your agreement covers EVERYONE in the images.. both families..and grandma. Everyone needs to sign. If there are any children then a legal parent/guardian needs to sign for them. It is a big ass hassle, but a totally necessary one.

My suggestion is to create a single one stop shop client agreement which also has a likeness release incorporated in it. Therefore you cover all your bases. Get it signed BEFORE the shoot. And make sure that they understand what is in it. Do not just spring on them later that pictures of them are up on the internet. Not everyone is thrilled with that idea. If later on you decide you want to use some of their work as examples in your galleries you should let them know in a very nice and congratulatory way, offer them some token gift in appreciation (extra 8x10, whatever), and lightly word it to them that they can decline this honor if they wish. If they say no... honor that (even though you DO have the rights). It is NOT worth the hassle... and pissing off a client is a sure fire way to have them never to come back and never to recommend you.

Some Do's and Don'ts:
  • Do create a client agreement with a iron clad likeness release.
  • Do have everyone in the shot sign it, as well as parents of the children involved.
  • Do honor requests NOT to publish images. Don't argue. Just go along with it. There will be other shoots.
  • Do use non publicly known (preferably password protected) sites to provide online galleries for proofs to clients. Don't just throw a link up on your main page for them to click on.. that is effectively publishing it (bad). Give them a link instead via email.
  • Do take down any proof web sites as soon as they are done with them.
  • Do be very sensitive about the content of the images. This is especially true with pics of children, pregnancy shots, and anything else of that nature.
  • Do NOT published ANYTHING client related on Facebook. Ever. Just don't do it. Its wrong in all sorts of ways.
  • Do NOT keep clients in the dark about how their images are being used. They can still file a lawsuit against you even if you are "in the right". Lawyers are expensive. Avoid them at all costs.
  • Do NOT assume that likeness covers just people. Pets, personal property, and especially corporate property (logos, designs, products, etc) are all in the same boat.
  • Do NOT assume that just because a client is a friend that "they won't mind" you doing what you want. Treat them like any other client. If they are your friend they will understand signing a piece of paper.
  • Do NOT ever, ever, ever, stand on verbal agreements on photo usage. Verbal agreements are worthless. Everything MUST MUST MUST be in writing otherwise it don't mean jack.
Rule of thumb.. when in doubt.. ASK PERMISSION. You can't go wrong (even if the answer isn't what you wanted to hear).

I hope that some of that info is helpful... and also.. I am in no way an absolute expert on these topics... everything I have learned I have done so in the battlefield of being a working photographer. I have made plenty of mistakes, pissed off a few people, gotten into arguments, lost a few friendships (which i guess goes to show how much of a friend they were in the first place), and so on. Each time was a learning experience for me. If you happen to disagree with anything I have written.. if i have any of it wrong.. PLEASE feel free to let me know (just don't be an dick about it). I would be more then glad to correct my txt and give you proper credit for setting me straight.