Every photographer’s worst nightmare is to find out someone has stolen your work and called it their own, and worse if they’re making money off of it. So what can you do photography copyright infringement happens to you?
You can’t believe your eyes, you see your photo – one you took with your own camera and spent valuable time editing – on another person’s portfolio. Maybe you see it on Instagram or Facebook, or perhaps its on some sort of stock image site. Unfortunately has happened to other photographers many times before and will likely happen many times to others in the future. But what can you do to if photography copyright infringement occurs? Is it worth the effort?
How to handle clients editing your photos and other tricky situations.
What does copyright mean in photography?
Someone that creates their own material has the legal right to choose if and how someone else or another company uses their work. In photography specifically, this means that you as a photographer get to decide if someone else can use your photographs and under what conditions and circumstances. It means that no one else may use your photographs without your explicit consent.
Copyright affords rights under two categories. economic rights and moral rights. Economic rights allow the photographer make money from the use of their photographs. Moral rights allow the photographer to claim authorship of photographs and to object to any modification of the image. In some countries there are further photography copyright protections. For example, in the United States photographer holds the right to display their photographs publicly, put their images on the internet, and sell or cede their rights to others.
Are there limitations to copyright?
When it comes to ideas, copyright only protects the original expression of the idea and not the underlying ideas themselves. This means that if you came up with a brand new pose that no one has ever seen before, the photograph you took of it is protected but not the actual pose you used. Similarly, if you came up with a brand new theme for a cake smash photo shoot, the photographs are protected but the theme is not.
Canadian photographers should know that the law allows for private individuals (ie a family) to share with others, print, display online, and reproduce your images as often as they wish without the photographer’s consent. As long as the individual is not making money when transferring it to another individual. Canadian photographers can put a clause in their contract forbidding the client from sharing or reproducing photographs.
Essential items to include in your client contract.
Do copyright protections apply internationally?
It is important to note that photography copyright differ from country to country, with some countries providing no protection for photographers. Similarly, copyright law in one country doesn’t necessarily apply to citizens of another country. To combat this issue many countries have made pacts on how to handle the situation when copyright content is misused in another country.
Two notable international copyright treaties exist: the Berne Convention (1886) and the Buenos Aires Convention (1910). The Berne Convention provides more protection to creators because it automatically protects your content as soon as it created until the copyright period ends or until the creator disclaims them. The Buenos Aires Convention, in contrast, requires creators to apply for protection and have a copyright notice (i.e. “all rights reserved”). Each nation signed on onto the convention could choose shorter duration on the copyright and allow creators to renew the copyright. In 1995, the World Trade Organization incorporated the Berne Convention into their TRIPS agreement, making the Berne Convention applicable in 177 countries in the world.
Even with the Berne Convention applicable in almost every country, certain countries like the United States still accept copyright registration for content. Your work is protected under photography copyright regardless of registration, however the act of registering your work provides you with extra protection. For example, a registered copyright holder can seek statutory damages and attorney fees. An unregistered copyright holder can only receive actual damages and lost profits.
How long do copyrights on photos last?
In general, the content is protected 50-100 years after the creator dies, depending on where you live. In the United States photography copyright lasts for 70 years after the creator dies. Canadian photography copyright lasts for 50 years after the photographer’s death.
Are photographs automatically copyrighted?
Depends on where you live. Some countries automatically protect your work without you needing to apply for protection, while other countries require you to register for protection. In the United States you are not required to register a photography copyright as you have automatic copyright protections. However if you choose to register your photographs, it could enhance the amount of damages you could receive should you file a lawsuit due to a copyright infringement.
Canadian photographers were not the automatic owners of their content until 2012. Prior to that the client commissioning the work got copyright to the work. That meant that a family who paid you to take their photo owned the copyright to your work, unless you got them to sign an agreement stating you owned the copyright. This is no longer the case. It is good practice to get clients to sign contracts with you, the photographer, regardless where you live. Outlining how photography copyright and other business aspects work in your contract. You can’t expect clients to know anything about copyright.
Want to try to sell your freelance photography? See our pricing tips here.
How do you claim copyright on photos?
You most likely do not need to claim copyright on your photos as you likely live in a country that affords you automatic rights. However if you still want to register for copyright, many countries allow you to. You can register your photographic works in the United States through the US Copyright Office’s website. You can submit an application electronically or via mail. Electronic times are faster, ranging from 1-7 months versus the 1-18 months for mail. The copyright office checks for errors in your application and makes sure the item you are trying to register is covered under copyright laws. The office does not compare your photograph against other’s work or checks for infringement.
How much does it cost to copyright photos?
Registering for copyright is relatively inexpensive if you only intend to submit a few photographs. The fee to submit one photograph for copyright in the United States is $35 at the time of writing. Just fill out the form and send in a copy of the work with the registration fee. You won’t get the work back, so don’t send in the original. If a company hired you to carry out a photo shoot on their behalf, you cannot registered those photos for copyright. You may register up to 750 unpublished works, and 750 published works.
What happens if I see someone using my photographs without authorization?
In the US, you can contact your Internet Service Provider (ISP) to report a photography copyright infringement. The ISP can then remove the image from the website. In the US you can also report the infringement with the Digital Millennium Copyright Act (DMCA) website. You can also request a photo credit linking your name and portfolio on the stolen image. You can send a DMCA notice requesting the person takes down your work. Even if you don’t live in the US, you can send this notice to someone in the US. As a last resort, you can file a Copyright Infringement Lawsuit with a lawyer.
Ultimately, you are the one that can decide if taking action is worth it. Filing a lawsuit on a 20 follower Instagram account that calls your image their own might not make sense. However it might be worth it to file a lawsuit against a company selling your images on their product. Only you can decide. We commiserate with you, having your image stolen feels terrible and the act of stealing someone else’s work is wrong. The only silver lining is that your work must be very beautiful if someone took the time to steal it.