25 Sep How Not To Get Sued for Your Photography
We take a look at Legalese’s guide for photographers to help them ensure that they are paid for their work and that they don’t infringe on anyone’s rights through their photography.
Photography is probably the most accessible and popular modern form of art. We all interact with photography every day and many people have made their life’s work contributing to this art. But, fortunately or unfortunately, behind every art there is a business. And business has rules. “It’s just photography,” you may say, “so why does it have to be so complex?” Well, welcome to the world – things are complex. So if you’re taking photographs, whether for yourself, for your friends or as a career – here is Legalese’s guide to doing so while not getting sued.
Who owns the copyright in a photo?
The general rule is that the person who takes the photo owns the copyright to the photo.
However, there are exceptions:
- If the photo is commissioned (i.e. if someone pays you to take the photo).
- If you take the photo as part of a job you are getting paid for (i.e. your employment).
- If you are not the person responsible for the composition of the photo, but merely the person who took the photo.
What if I take the photo with someone else’s camera?
If you take the photo, you are the owner of the copyright in it, regardless of whose camera was used.
When Am I Allowed to Use a Photo?
You are allowed to use a photo in 1 of 3 instances:
- If you are the owner of the copyright of a photo.
- If you have been given permission by the copyright owner of the photo.
- If the use of the photo falls into a copyright exception or limitation.
What are Exceptions and Limitations?
Laws often are not as strict as you would think. In fact, many laws have certain exceptions and limitations to them. Copyrights are no different and in certain instances you can use copyrighted work without permission. In South African law, one of these exceptions is known as fair dealing.
The fair dealing exception allows you to use another person’s copyrighted work, without permission in certain instances – like when using a photo for news reporting. Or, for example, a photo may be included in a film or television broadcast, without permission, if the photo is just in the background or incidental.
Unfortunately, there are no hard and fast rules here.
It should be noted that fair dealing is similar, but not the same as the American concept of fair use. Fair use takes into account several specific factors in considering whether the use was fair.
How do I Get Permission to Use a Photo?
Permission can be granted in various forms such as written permission, a license of use or some sort of a public license such as creative commons.
All permissions, with the exception of exclusive licenses, which must be in writing, can be given verbally. The problem, however, is that if anyone ever denies that they gave you verbal permission, it may be hard to prove that it actually happened. So writing is always best.
That being said, you don’t need a formal contract. If it’s just a simple permission with no payment, then a clearly written email should do the trick.
Am I allowed to Take Pictures of an Artwork in a Public Space?
Yes. You are allowed to take a photograph of buildings and statues. However, there may be bylaws for the particular city that you are in that prevent you from taking pictures for commercial purposes without the necessary permission. There are also laws that prevent photographs of National Key Points, for example, certain government buildings.
And what about Public Art, Like Street Art?
The artist (or person who commissioned the artist) owns copyright in his/her street artwork. No one can stop you photographing street art, but if you are going to use the photo of the artwork for a commercial purpose and the artwork is the subject of the shot, such as the backdrop to a model shoot for a magazine, then you are going to need permission. However, if the art is only incidental to the shot and it’s not the focus, then no permission is needed.
Am I Allowed to Take Photos of a Person in A Public Space?
Generally speaking, you are allowed to take photos of people in a public space. Merely taking their photo does not infringe on that person’s right to privacy. You should assume that by being in public, people may take photos of you. It is in the publication of the photos that issues arise.
While you may be allowed to take photos of people in public, you would not be allowed to publish those photographs, or use them for any commercial gain, without the permission of the people in the photo. Doing so may infringe on those people’s right to privacy or dignity.
That being said, if someone is in a public setting in which he/she has a reasonable expectation of privacy, then the answer changes and you would not be allowed to take pictures of that person. You would then need their permission.
What Does a Reasonable Expectation of Privacy Mean?
If someone is in a public toilet, you cannot take a photo of them, as that person has a reasonable expectation of privacy, even though they are in a public space. However, if someone is taking part in a public gathering where they know there are going to be photographers, then that person would probably not have a reasonable expectation of privacy and you could snap away.
It should be noted that reasonableness doesn’t work equally for all people. Politicians and public figures may not have the same level of privacy as the average citizen. In the same vein, children always have an expectation of privacy, so if you want to take pictures of children, best get permission from the parent.
What about at a Private Space, Like at An Event – Can I take Photos of People There?
When attending an event, the same reasonable expectation of privacy would apply. However, there is one added complication. At an event, you are in someone’s private space and that person gets to set the rules.
So, before taking pictures at an event, its best to check the policies on the event’s website. A good rule of thumb is to get permission from the event organizer and always check with the subjects of the photographs themselves before taking or using the photos.
Does The Same Apply for Artwork at An Event?
If you are at an event where artwork is being displayed, the same rules would apply. You need to check the policies of the event in order to take the photos, as you may well need to get their permission from the event organizer and the artist.
Moreover, if you plan to use the photos for commercial purposes, you should get all these permissions in writing and go through the accreditation process of the event before selling or using the photo.
If I am Allowed to Take A Photo, How Can I Use That?
Once you have been given permission to take a photo, the next obstacle relates to what you are allowed to do with that photo. This is where photo licensing, laws and permissions come into play.
Specific events may allow you to take photos, but restrict you from using the photos for commercial gain. So you could take a photo and put it on your personal social media accounts. But you are not allowed to take a photo and sell it to a magazine, as an example.
Unfortunately there are few hard and fast rules here. A lot is going to depend on the circumstances of each instance. For this reason, the best rule of thumb is to get permission from your subjects to do whatever it is you are going to do with the photo.
Can Someone Else Use My Photo?
Well, there are at least four answers to this question:
- If you gave permission, then yes.
- If you did not give permission, then no.
- If the use of the photo falls under an exception or limitation, then yes.
- If you posted the picture to a social media site, then much like when entering a private venue, the social media site makes the rules.
What If I Put My Photo on A Social Media Platform?
It depends on the terms and conditions of each social media site. Most sites will have their own terms and conditions that govern what one can legally expect when posting photos. None of the platforms regulate what someone can do if they take a photo off the platform. Instead they regulate what someone can do with photos on the platform. As a general rule, if you post your photos to social media, you should assume those photos are going to be shared by others.
When posting a photo on Facebook, you grant Facebook “a non-exclusive, transferable, sub-licensible, royalty-free, worldwide license to use any intellectual property content that you use post on or in connection with Facebook.” Essentially you are giving Facebook the right to use your photo for whatever it pleases. However, if you consider how Facebook actually works, this license just gives permission to allow people to share your photo on their profiles. The likelihood of Facebook downloading and selling your photo is slim. Possible, but slim.
You grant Instagram similar rights to Facebook. According to Instagram’s policy, “Instagram does not claim ownership of any content that you post on or through the service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensible, worldwide license to use the content that you post on or through the service.” So essentially, while you still own the copyright of your photos, you grant them the right to use the photo for whatever it is they want to use them. Again, this may seem extreme, but it actually just allows Instagram to function for the purposes for which you use it for.
By posting photos to Twitter, you retain all the ownership rights to those photos. “However, by submitting content to Twitpic, grant Twitpic a worldwide, non-exclusive, royalty-free, sub-licensible and transferable license to use, reproduce, distribute, prepare derivative works of, display… the content in connection with the service and Twitpic’s business.” So again, while it seems like you are giving Twitter the right to sell your photos, in reality you are giving them permission to allow your photos to be retweeted.
When posting to Flickr, you are provided with an option in regard to the use of your photos. You can choose whether you want to allow Flickr users to use your photo commercially, or you can choose to keep your photos unusable by others. In addition, Flickr has an option for you to be paid by other users who would like to license your photos.
What does ‘Commercial Use’ Mean?
Well it is quite broad. If you are selling the photos, using it for advertising or even self-promotion, that can be considered commercial use. In general, it means making money or getting some business-like benefit from using the photo.
To be safe, if you are unsure, then best to make sure that you have the proper permission to take a photo if you think it might have some commercial application. Generally, if you are going to make money off a photo, the person in the photo has to consent.
How Do Watermarks Work?
Watermarks don’t affect your rights. One function of a watermark is to prevent someone from saying they didn’t know that a photo belonged to someone else. If someone uses a watermarked photo without permission, it is easier to show that person has infringed your rights than if there was no watermark. The other use of a watermark is to just promote your brand if you know your photo is going be seen and shared.
What Do I Do Is Someone Uses My Photo Without My Permission?
If the photo was used on a website, you can ask that website to take your photo down. If your photo was used in a printed publication, obviously that won’t be an option.
In either case, if your photo has been used for commercial gain, then you should be entitled in part to that commercial gain.
The first step in getting paid for unlawful use of your photo is simply ask. You need to calculate what the gain was worth and ask them to pay you. If they say no, then you need to ask with more conviction. If they still refuse then the only way to get paid is to sue them in court.
How Do I Calculate What I Should Be Paid?
Generally, this will amount to a reasonable royalty. The calculation of a reasonable royalty will vary depending on a number of factors, such as the nature of the photo, what the photo is being used for and who took the photo.
If nothing was actually gained from the use of a photo, then there is nothing for you to gain from suing. You could still sue, in theory, but probably best to ask them to take it to be taken down and move on.
Once I License my Photo and Get Paid, What Next?
If you are making money from your photos then you are running a business and businesses need attention. The terms of license agreement that you enter into will determine what needs to happen next. As an example, you may need to be aware of exclusivity, re-licensing and moral rights.
What Are Moral Rights?
Moral rights concern the relationship between the author and their work. These rights remain with the author, even after the copyright has been transferred or licensed. As a result, the author of a work can object to a distortion, mutilation or other modification of the work that hurts the photographer’s honour or reputation. For example, if you only take photos in black and white, you may object to a copyright owner converting your photo to colour in a way that would distort your work or reputation. In addition the author has the (moral) right to be named as the author of the work.
Please note that this note is a guideline. A good guideline, but a guideline nonetheless. It does not constitute legal advice. The tricky thing about the law is that every situation can differ. It is good to get educated and know your rights and boundaries.
If you want to learn more about making sure that you are protected for your photography and that you do not infringe on other artists rights, visit Legalese for more. If you are also interested in learning more about managing your finance as a creative visit our new feature, DOUGH.