Let's talk about Copyright... uggh!

This is a conversation I hate having. This is something that I don't want to discuss or even deal with. I guess I am just someone who thinks that everyone will appreciate other peoples hard work. But this has come up several times in the last six months or so, and was really blatant recently. 

Let me start by saying that "I am not a lawyer, or have any formal law education." But I have studied people who are. And the best complete work on the topic is  - Photographer's Survival Manual; A legal guide for artists in the digital age" by Edward C. Greenberg, J.D. and Jack Reznicki. There is a link to it on Amazon, it is a must read if you are a photographer. This is written by a photographer and an intellectual property lawyer to help artists deal with the digital sharing revolution, and the majority of information on this page will be from this book.

There are two instances that I have dealt with recently. And I am going to address these circumstances directly. There is much more to copyright than I am able to write about, or am qualified to comment on.

1. Copying and sharing other peoples photos on social media or via electronic distribution. (Even if it's not for profit or promotion)

I got into a conversation with a photographer today who shared a school photo on their facebook that said "COPYRIGHT PROTECTED - DO NOT COPY" across the photo so that it covered the child's head. It also had a watermark in the lower right corner that said "Proof Preview - (studio name)"

So I sent this Photographer a private message explaining why I think this is a mistake. I politely explained that by violating the big corporate copyright so blatantly, they were hurting all photographers by way of horrible example.

The photographer proceeded to explain that they had not done anything wrong, and that because the image had the company's watermark, there was no copyright violation. Then proceeded to make sure that I knew they were  not a "moron" and that of course their photo lab wouldn't print it. 

But the fact of the matter is that by reproducing the image electronically on Facebook they had already violated the copyright of the image. But this person could not understand that, and I had to just apologize for wasting their time.

AND THIS WAS A PHOTOGRAPHER WHO HAS BEEN IN BUSINESS FOR MORE THAN A DECADE!

First off, let's define what Copyright or © actually says about this matter.

Title 17 of the U.S. Code state:

The Right of Reproduction: You have the right to control how, when, and where your work is reproduced. You can specify and control this through how you license your work.*

THIS INCLUDES ELECTRONIC REPRODUCTION! So scanning those proofs from the wedding photographer to put on your social media is a copyright violation without a license to use the work for that purpose. And scanning that school photo and putting on social media (even with the studios watermark) is against the law without a written license to do so.

In this specific instance, the big studio did not give permission to the photographer on how, when, or where their work was reproduced, and the photographer reproduced it anyway.

*Updated for Clarity* So, let's give the photographer the benefit of the doubt. Let's say they have the license to reproduce an image that say "DO NOT REPRODUCE" in bold letters across it. The part of this that frustrates me the most, is that this photographer could not understand that by doing this, they are telling their clients (and possibly other photographers future clients) that it is ok to reproduce copyrighted proofs. This photographer just kept justifying their actions to me over and over, but couldn't understand the message it was sending to those who consume and pay for copyrighted material. All anyone sees in their post is someone who should be an authority on copyright, (it is their business after all), apparently, blatantly breaking copyright. Whether or not they are legally allowed to is irrelevant, it's about what is being perceived by those who see it. 

2. Do you have the right to know where your likeness (portrait) is being used?

The second circumstance was very blatant bad advice by another photographer to a modeling group. The advice was bad enough that I had to disassociate myself with the group. I could not stand by and watch a "Professional Photographer" give absolutely incorrect legal advice.

This is another one of those circumstances that I tried very politely to let them know they were wrong, but apparently the blog they had read was more accurate than my information from legal counsel. This particular photographer went so far as to assure me that her lawyer had told her that what she was spouting was accurate. 

So, what was she saying?

She was advising models that they had the RIGHT to know when and where their images were being used. And this may or may not be the case. In most situations, it is not the case. I don't shoot without a model release. The model signs it, and it is super simple. It says:

"I, as the model identified by the information herein, consent to be photographed in accordance with the shoot dates and other information indicated on this form. I future authorize that the photographs may be published for any purpose and in any form."

This is fairly common for a model release. I can use MY photograph of you for any purpose I want. Period. It gives the model absolutely no license to use the work for any reason. That is a separate agreement. But with a standard model release there is no RIGHT to inform the model of where and when you are publishing or exercising your 'Right to Reproduce' your copyrighted work.

Now, before you all jump all over me. I personally like a good relationship with people I work with, and I discuss what and when the images may be used. But let's face it. If you are a model, you probably want your photos to be seen. I have only once been asked to not "tag" a model in facebook, as she wanted to keep her personal and professional modelling pages completely separate. And I of course obliged.

If you want to work with people again, and not get a bad name in the community, it is a good idea to let models know if you are submitting their images to a magazine, but until I see something that says otherwise, my understanding is that I own the copyright to the images and can do whatever I want with them.

With that being said, I did hear of a case about a woman who was a "stock photo" model and the image was sold to the company that makes Herpes symptom control medication. She was, well let's say, less than happy about being the new Herpes poster girl. She sued, but I am not sure what the outcome was. And if I ever am in a situation that remotely resembles this situation I will contact an Intellectual Property Attorney and find out what is legal, and what is ethical.

Phill HarndenComment