Copy rights and wrongs
Even though this post doesn’t talk about camera techniques, it is vital for anyone who wants to take and share their images. It covers what copyright is, what creative commons is and answers 4 important questions; ‘Can I use a photograph if someone else has used it?’, ‘Can I use a photograph without attributing the person who took it?’, ‘Can I use a photograph if I can prove that I’ve tried really hard to find the person who took it?’ and ‘Does it cost?’
I decided it was important to clarify these main forms of image licensing after giving a workshop to volunteers of the wonderful charity Kids In Museums.
What is Copyright
UK copyright gives the creators of literary, dramatic, musical, artistic works (including photography), films and typographical arrangements rights to control the ways that the material they have produced can be used. This also includes rights to be identified as the author and to manage or object to distortions of this work.
The rights cover copying, adapting, issuing, renting, lending, broadcasting and performing where these things are of that work or include that work, and specifically includes the use of that work in computer programs, apps and similar.
How is copyright conferred?
Copyright is automatic. The creator does not need to specify that their work is copyright but the work must be original and demonstrate that it has been created through skill, significant labour or judgement in its production.
Who is the owner?
If the creation (photograph or film, for example) is made by a freelance or independent operator they are automatically the owner. If the creation is made by a member of staff, as part of their employment, then the creation is owned by the employer.
Like any other asset, the copyright can be transferred or sold by the copyright owner to another individual, organisation or group. Sharing or lending the asset is called licensing, and outright sale of the copyright is called Assignment. Rights grabbers will go for Assignment even when this is not needed, and some shortsighted lawyers might mistakenly advise Assignment rather than licensing as a way to protect their clients’ long term rights to do whatever they want. It is often possible to negotiate this position and if faced with it I advise you to try.
How long does copyright last?
For films and photographs copyright lasts for 70 years from the end of the calendar year in which the last remaining creator of the work dies (if taken after the 1989 when the 1988 Copyright Designs and Patents Act came into force). If the creator is unknown then copyright lasts for 70 years from the end of the calendar year in which it was created.
The only exception to this are if the work is Crown Copyright in which case it is 125 years from the end of the calendar year the work was made or, if the work is commercially published within 75 years of its creation it will last a further 50 years from the end of the calendar year in which it is published.
How might someone break copyright law?
It is an offence to: copy, rent, lend, issue copies to the public; perform, broadcast or show the work in public or adapt the work without the specific advance permission of the copyright owner.
The copyright owner has additional rights, called moral rights. These are the right to be identified as the author or to object to derogatory treatment. There are a few important exemptions and qualifications of these rights, but some are too complicated and esoteric to explain in this post.
What are the main exceptions?
Called Fair Dealing, the following are allowed to a limited degree, provided the moral rights of the creator are respected. The degree to which each are limited is regularly tested by those who feel that their copyrights have been abused and the specific limitations of each often depend on the outcomes of the resulting instances of case law.
Fair Dealing does not apply to photographs.
The test used to determine whether Fair Dealing is fair is that it must not conflict with the rights holders’ normal exploitation or use of their work or prejudice their interests.
Fair dealing applies in different degrees to; research and study, copies for education, criticism, incidental inclusion, copies and lending by librarians, backing up something for personal use, caricature, parody, pastiche, use within legal, royal, statutory and parliamentary purposes and keeping something to view at another time. Photographs are specifically excluded from Fair Dealing when applied to news reporting and similar media.
You might be interested in: https://www.gov.uk/guidance/exceptions-to-copyright#fair-dealing
So how do I use someone’s work?
You agree with them the conditions and they then grant you a license to use the work. Licenses vary, some can be time dependent, some restrict your use of the image and on very rare occasions some give you ownership of the images (but still normally keep moral rights).
What is Creative Commons?
Creative Commons is a relatively new set of ideas and practices that purports to make borrowing and creation through the digital commons easier. Its stated intention is to benefit creators by ensuring that creators get the credit they deserve, provide understandable licenses and is based on the founding principal of open software development.
This is a lofty ideal but it doesn’t translate well to photography and videography. With imaged based creative works the creators (that’s you if you’re a photographer or videographer) get nothing but satisfaction in return for giving away rights that enable others to make money. Rather than, as is claimed, deliver something that is easier for creators to understand, it has caused confusion, misunderstandings and resentment as people assume that they have rights where none exist.
There are several layers of creative commons license:
This allows others to distribute, change and build on the work of the creator, both non commercially and commercially, providing they credit you for the original. The creator has no control over what they do to the work and there is no onus to tell the creator what is happening.
This allows Attribution as described above for the first level of work (both commercially and non commercially) and any future redevelopments. Derivatives may be produced, the creator’s work may be modified, used and reused over many different iterations, and the creator has no control over this or of knowing what has been done.
This allows commercial and non-commercial redistribution provided it is unchanged, remains whole and credits the creator.
This allows non-commercial use of the creator’s work. New works need to attribute (acknowledge) the creator and be non-commercial but they don’t need to make sure these terms continue for any derivative works.
This allows non-commercial use of the creator’s work provided that new and derivative works are produced under the same terms.
Can I use a photograph if someone else has used it?
Under some very specific conditions you can; if the photograph is to be published in newspapers, magazines or periodicals, these conditions include getting the consent (and payment if they ask for it) of the creator. Most of the time you can not. If there is no indication of the creator or licensee then you are normally obliged to do a sufficient search to discover the licensee. Failure to do so amounts to theft, and you could be prosecuted under both criminal and civil law.
Can I use a photograph without attributing the person who took it?
No. Unless it qualifies as an ‘orphan’ in which case you need to register it and pay for the privilege. However, because this process is new there is still no guarantee that, if in a year or 5 or 20 or 70 years, when someone discovers you are using their photograph without attributing them and without permission they will not prosecute you under both criminal and civil law.
Can I use a photograph if I can prove that I’ve tried really hard to find the person who took it?
Not unless you want to go through the difficult and immature orphan works registration process and pay for the privilege. See 4.
What I think
I have no idea why anyone would want to use Creative Commons. On one side it erodes the rights of the individual and doesn’t give creators the support that it claims. On the other side, unlike when people see a (c) notice they assume they can do anything with the picture, irrespective of the conditions under which it is licensed. It is also, in my opinion unsustainable. A tiny minority of creators appear to be able to use it to promote themselves and get an income from related work, but it doesn’t – and can’t – work like that for everyone. Unlike open source software, there is no route to employment or hiring for further work and if the creators don’t get paid they can’t eat and will eventually stop creating. I also believe it to be unethical since it doesn’t give the creator moral rights or financial remuneration even when the user benefits.
You will know from my previous post, that I believe if you’re good enough to get published, you’re good enough to be paid.
Does it cost?
No, you just indicate the (c) or creative commons symbols by (or if you’re healthily paranoid on) your work.
What organisations exist to help?
I’ve been a member of the NUJ for years. They’ve helped me get redress for copyright infringements, got money that was owed to me and even sued for discrimination on my behalf. I believe that just having my NUJ membership number at the bottom of every email warns those who want to engage in sharp practices that I am not alone. Also, as the current Vice President of the NUJ Photographers Council I work hard with other Council members to redress copyright inequities wherever possible. Much of this is behind the scenes (generally speaking our negotiations only go public if we believe there will be benefit in a public campaign) so if you are a member and have a problem, please let the NUJ know.
Other organisations that might be able to help you:
There are a number of associations, groups and facebook pages for photographers, some of which give excellent professional help, peer support and advice. However some are based on rumour and hearsay, and there are trolls everywhere, so think carefully before following their advice or opinions and make your own mind up based on the facts you’ve researched.
The UK Intellectual Property Office www.ipo.gov.uk
Pixelrights gives the best website copyright protection and is a community of like minded photographers. For a 20% discount on their portfolios go to https://www.pixelrights.com/) or if you are an NUJ member I’ve negotiated a whopping 30% discount which you can get at https://www.pixelrights.com.