I may not be a lawyer or expert on matters Intellectual Property, but from my experiences, I’d like to share some personal opinions on the issue with regard to photographs.
Over the last couple of years, I’ve had a few individuals and organizations use my images for commercial gain i.e. to market their services and products. Unfortunately, in most cases this has been without my permission, which constitutes Copyright Infringement.
In almost all instances, the answer from the infringing entity is the same – we gave the info to our designer and we did not know the image was used without permission. So, to help anyone out there, here’s some useful info.
So, what exactly is Copyright?
The subject itself is wide but in simple terms, copyright is a law that gives you ownership over the things you create – a painting, a photograph, a song or a script. If you created it, you own it and it’s the copyright law itself that assures that ownership.
It’s important to note that copyright covers the “form of tangible expression,” not the ideas or concepts in one’s head. In short, a work must be in ‘material form’ to receive copyright protection i.e. Photograph, Painting, Script, Audio Recording, Visual Recording etc.
In photography, copyright is established the moment the photographer looks through the viewfinder and clicks the shutter to photograph the subject matter. This means that whether the photograph is registered with a relevant Copyright body or not, the above applies.
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How about infringement?
This happens when someone, without permission from the creator of a work;
Reproduces the work
Prepares “derivative works” – similar works based on the original work
Distributes copies of the work – sell, lease, or transfer ownership
Performs the work publicly – song, screenplay etc
Displays the work publicly – online or in print
Many artists are happy with their work being used as listed above, but, there is usually a process for acquiring the rights to use the works for commercial or personal purposes. It may or may not involve monetary compensation to the artist but it’s up to the user to state clearly where and how the work will be used.
Now, you’ve seen an image online and you’d like to use it for whatever reason – here’s what to do;
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1. Get in touch with the artist.
Most artists have either direct contact info on their online platforms [Website, Instagram, Facebook etc] or have agents who handle such matters.
Take a little more time and seek that info, reach out to the artist/agent and state your intentions. They’re more than happy to help, and most importantly, start an amicable long-term (business) relationship.
2. Do a simple Google Image Search
If the image is on different platform, try to ask the owners of the platform whether they have the photographer’s contact info so you can get in touch with them. Some sites like Pinterest have links to the website the images appears in.
If it’s a public forum or there’s no info linking back the photo to the photographer, do a Google Image Search by right-clicking on the image to show the ‘Search Google for image’ tab which should bring up links to where the image appeared originally. That should, most likely, be the photographer’s page(s).
Google Image Search screenshot showing the image upload option.
FYI, Google has even added image rights metadata to the photo search results on Google Images.
3. Be, and remain, Informed
As they say, ignorance is no defense so if you’re not well versed with the topic or intricacies of such a matter, do a bit more research. Talk to someone who’s more experienced than you, scour the internet and see what others are saying about in online, join professional organisations where such topics are addressed etc.
Don’t assume that just because an image is available online and is download-ready, it’s free to use. That’s like passing by your friend’s house, seeing their bike parked on the driveway and riding away with it without asking.
If you’re in the creatives’ sector, you can also follow blogs that are dedicated to the matter, like IP Kenya.
4. Ask what it costs, and budget for it.
Find out what the value of the photo is before asking for free licenses and if you can’t afford it then, go the old-school way – Barter.
Let the artist know what you’d offer in return and present actual valuable options for them to decide whether or not to batter. Show that you value their work.
Please ask what it costs to license images for whatever use. It’s always polite to ask what it’ll cost you than heading straight to “we don’t have a budget” or “it’s good exposure for you” blah blah blah.
5. When you’re on the wrong, admit it
When an artist reaches out to you with regard to a ‘stolen image’, understand the situation first, then respond accordingly. This will, in most cases, yield an amicable and speedy solution to the matter.
Ignoring the situation only makes things worse as it tends to communicate arrogance, which leads to the artist to pursue legal means to solve the issue since diplomacy has failed.
6. Train your teams/staff
If you are in charge of a team that has access to and uses photos for your work, hold trainings on matters copyright. I’ve had to deal with managers who’ve assigned design work to a member of staff and did not bother to find out where the images for the artwork came from.
Unfortunately, both parties have to take responsibility when there’s copyright infringement.
Now, as a photographer, you’ve seen an image online that’s been used without your permission – here’s what to do;
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1. Get in touch, directly and professionally
I’ve found that it’s easier to approach an infringement matter by doing a simple but firm letter to the concerned party, directly and privately. It’s not always a good idea to start by lambasting the infringing party on social media especially if you haven’t reached out to them first.
What I do is;
Take timestamped photos or screenshots of the artwork and attach them to the letter
Bill them for the license and include a penalty for using the photos without consent, after which they can continue using the image(s) for the agreed purpose and duration.
Copy my lawyer in all communication regarding the matter
2. Be easily reachable
Have contact info, preferably at the bottom/corner of your website (or whatever platform you’re sharing your work). That way, interested parties can easily reach you, plus they have no excuse if they steal an image since all they had to do was ask via the channels provided.
3. Involve a lawyer
If you fail to reach an agreement, reach out to your lawyer and have them do the follow-up for you. Bring them up-to-speed by sharing all info with them regarding the progress of the matter from your side, then ask them to do a demand letter and build a case, if need be.
Pay them for the service, obviously, and bill the infringer for the trouble.
4. Have T&Cs on your websites
Always display your Usage Terms on your online platforms. That way, users know exactly what the conditions are with regard to images uploaded to your site. I have mine listed here.
5. Metadata
Be sure to include copyright info on both your Camera and your Cataloging software whenever you import and export images to and from your computer. I use Lightroom and the Metadata tab is to the right of the Library tab.
Check your camera manual or software instructions on how to go about that.
6. Copyright your work, officially If you’re in Kenya, register your work with the Kenya Copyright Board.
It’s a very easy process and costs Ksh. 1,000/= to process your body of work, last I checked. It should take a couple of weeks to get your certificate and you can always add more works to your file, preferably annually, without having to pay additional fees.
Check out http://www.copyright.go.ke/.
7. Be on the lookout
Make use of the available online tools and dedicate time every few months to conduct searches on where your images have been used. There are several websites [e.g. Pixsy] and browser extensions [e.g. PhotoTracker] to help you with that.
This takes a bit of patience and time, so, be warned.
So, whether you’re in need of images to use for your works or you’re a photographer sharing your work online, I hope this helps in dealing with any copyright or licensing issues you may encounter in your line of work.
If you have any questions or suggestions, please hit me up. I’m happy to engage.
You can send an email to eyeconic-media@mail.com as you check out more of my work.
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