Few photographers can honestly say that they understand everything they should about photography law. That’s not entirely their fault. The laws relating to photography are anything but straightforward and when faced with a Cease And Desist letter, most photographers find that it pays to obey rather than fight a case that even if they win, would leave them with legal bills larger than the photo is worth.
The result is few test cases and lots of fuzziness about what can and can’t get a photographer into trouble. In general though, it’s the user of the image — not the photographer — who’s the first port of call for someone with a lawyer on their speed dial. As long as you’re honest, up-front and don’t do anything as silly as stealing someone else’s images, you should be fine.
Here though, are five things that might get you into trouble:
1. Breaching Logo Copyright
It’s not easy to get away from corporate logos these days. Shoot a street scene and you’re likely to find half-a-dozen in your viewfinder. But copyright holders get to say how those logos can be used. Put an image that contains the Coca Cola logo in a website design or a commercial, for example, and you can expect the drinks company to get in touch. (Put it in a newspaper though, and it’s editorial use, which is fair.)
Again, the logo rights holder will turn to the person who used the image not the person who took it. But don’t expect your buyer to be happy about that, and they might sue you to get their money back, and perhaps their costs too. Whether they’d win would be another question — you’re not responsible for how they use the photo — but you don’t really want things to get that far. If you’ve got a corporate logo in your photo, then that photo has limited use and you need to tell your client it’s there.
2. Breaching Image Copyright
Logos are easy to spot. The copyright surrounding images of locations are much harder. Some buildings are copyrighted, others aren’t. And some are copyrighted only under certain conditions. Julie Wohlberg, Director of Communications for Fotolia, points out that photographers can sell images of the Eiffel Tower, for example, but not if they were shot at night when the lighting display is copyrighted. “I worked as a journalist for many years with a major US media company and even though I was responsible for finding imagery to accompany my stories, I was never made aware of what landmarks are copyrighted,” she says.
If you’re selling a shot of a building for commercial use then, it’s worth doing your copyright homework about the site.
3. Selling An Image Without A Model Release
The conventional wisdom is that if you’re selling an image of a person for commercial use, you’ll need that person to sign a model release form. If you don’t have a model release form, you should tell the client; they’ll only be able to use the picture in an editorial context. If they use it for anything else, they’ll get sued, not you.
But tell that to photographer Philip-Lorca diCorcia who took a shot of a man in Times Square in 2001, sold ten copies for between $20,000 and $30,000 each and included it in a photography book. The man sued the publisher, the gallery that displayed the work, anyone who sold it… and of course, the photographer himself. He lost. The judge said that the image was art not commerce.
But who needs the hassle? If you’ve got a person in your photo and want to sell it for commercial use, either get a model release form or tell the client you don’t have one.
4. Using Someone Else’s Work To Make Your Own
Selling someone else’s work as your own is obviously a big no-no (although apparently it’s not big enough to stop some people from doing it). But taking someone’s image and using to create a derivative work does seem okay to some people.
It isn’t. Unless the work is in the public domain — and some useful images, such as many from NASA and other government agencies are — you can’t use it without the copyright holder’s permission. Not even if you distort enough to become unrecognizable.
5. Not Realizing That You’ve Given Away Your Copyright
Sounds too silly to mention, doesn’t it? And yet the opening up of commercial photography to talented amateurs has created two classes of people: rapacious buyers and naïve suppliers. The first feel it’s acceptable to ask photographers to give them their rights to a picture, not just a license to use it, and the second don’t understand what they’re agreeing to.
The result can be a photographer not being aware that he’s sold his copyright for a song — which is bad enough — but also being sued by the buyer for selling the image again — which is even worse.
The best solution is simple: make you’re signing away a license, not a copyright