Photographers, copyright and the online battle for photo rights

It sounds like something straight out of the pages of a crime thriller.

"An Orkut user stole my identity, claimed she was me — married to my husband, that all my children were hers and she had reposted all the photos I had taken of my own children, claiming they were photos that she had taken of her own kids!"

Michelle Dupont is used to her images being used without permission. As a fine art and wedding photographer, her visual style is striking and very distinctive. She knows too well the sinking feeling that comes with seeing one of her photos turn up unexpectedly, and the extreme lengths that people will go to in order to get something for nothing.

Though this scenario is rather an extreme example of photo theft, Dupont has similar stories of this happening to her work, and "without exaggeration", she said that her images have been used thousands of times without permission.

Seeing your photo gracing another website can be flattering under the right circumstances.

However, copyright infringement, or having a photo used without permission, certainly isn't good news for professional photographers, who rely on their art as a source of income.

Dupont has even had a photo of her daughter turn up in a music clip by the band Placebo, and an image of a friend's baby used in mass-produced photo frames and key rings overseas.

She is not the only photographer who has had her work used without consent across the internet — it happens countless times every day. High-profile photographer Trey Ratcliff found that one of his photos had been used by The Sydney Morning Herald without permission or attribution.

Ratcliff distributes most of his work online through a Creative Commons (CC) non-commercial licence, which does allow for reposting and sharing with attribution. Editorial use in a high-profile commercial publication doesn't necessarily fit comfortably within this licence, though.

Ratcliff's work was also previously used in a commercial way, breaching his CC licence, in 2010. Several of his photographs appeared in promotional material for an app distributed by Time, and Ratcliff sued the magazine for using images without permission.

Though it isn't acceptable for commercial enterprises and individuals to use photographs without permission, attribution or financial compensation, we can certainly see how it occurs. Contemporary internet culture makes us feel like any image found online is fair play — whether that's re-blogging on Tumblr or pinning pretty pictures on Pinterest.

Just recently, Google+ made it easy for users to download all the photos from a particular event in one click. With Google+ becoming more popular among photographers by the day, there are plenty of attractive images available for sticky fingers — or sticky clickers.

Dupont said that her friends and colleagues often tip her off when they find her work online, but she also finds her work when perusing sites like Flickr, Facebook and Pinterest.

"I contact the person who has posted or used my image, asking them to remove the photo from their page or site," she said. "Alternatively, I ask them to give me credit for the image by attaching a live link back to my blog/Flickr account/Facebook page."

While individual cases like this may be resolved with an email, there are more serious ramifications for mainstream media outlets that use photos without permission.

A landmark case from January 2013 found that two global news outlets had used the photos of Daniel Morel without permission, after they were posted to Twitter. The judge found that these news agencies had infringed Morel's copyright, and that Twitter's terms of service did not automatically give these outlets authorisation to republish this content without permission.

Credit where credit's due

Julianna Koh-Blackwell is an award-winning pet photographer from Sydney. Like many other professional photographers, she turns to watermarking to help deter would-be thieves.

Even though these physical marks can easily be removed or cropped out, she finds that watermarking helps brand her work, "especially in the pet portrait genre, which people see as something of a novelty".

"It also helps me with my investigation when I see my images published elsewhere, especially when it's not watermarked," Koh-Blackwell said.

Embedding copyright information in metadata is also possible. Some high-end SLRs allow photographers to do this in-camera as soon as a photo is taken, though again this can be stripped out without too much effort. A simple "Save for web" command in a program like Photoshop effectively creates a brand new image, without preserving original metadata.

Dupont has tried pretty much every method to circumvent photo theft.

"I have tried to protect my images by disabling 'right-click' download options, watermarking, posting low-res versions and plastering copyright information on the various 'about me' pages on my sites. Nothing works."

In many cases, when a photographer sees their image used elsewhere online without permission, there is no credit or link back to their site. However, linking and crediting — without first asking for permission — is a sensitive topic for many photographers. Koh-Blackwell has first-hand experience of what happens when images are taken out of context, affecting her subjects.

"For example, someone might post an image to social media and write something about it," she said. "That image then gets re-posted over and over again and may contain a different sort of commentary than 'it's a cute dog'. Hence, I do not post most of my client shoots for this reason."

Koh-Blackwell is happy for her clients to post images on their personal sites with links and credits to her as the photographer. "I normally provide them with the instructions: what, where and how I would like the credits to be included, and no alterations to the image," she said.

Copyright and your photos

Copyright in itself is a big, unwieldy beast that can be difficult to understand, particularly when it comes to work distributed online. For Australians, the law gives creators (like photographers) automatic copyright as soon as a work is created, without needing to register.

It is, however, important to note that this automatic allocation of copyright only applies to Australia and certain other jurisdictions. Elsewhere in the world, different laws and processes may apply, and obtaining copyright may not be an automatic process when a work is created.

According to the Australian Copyright Council (PDF), international treaties afford copyright protection to Australian works in countries such as Canada, China, France, Germany, the United Kingdom and the United States.

Generally, it is accepted that the person who takes a photo owns the copyright for that particular image — rather than the owner of the camera. Also, in Australia, copyright lasts for 70 years after the photographer's death.

Separate to copyright, a photographer who creates a work is granted moral rights. This means that the photographer is assigned three specific things: the right of attribution to ownership; the right not to have authorship of their work falsely attributed; and the right of integrity of authorship.

So if another website uses a photo of yours in a way that denigrates or attacks the image, that scenario may be a breach of your moral rights. The same applies if the use is defamatory in any way. For example, if a photo of yours is used in a manner that would reduce your reputation, it may also be a breach.

James d'Apice, an associate at Fox & Staniland Lawyers, said that determining where copyright infringement takes place is also important for Australian photographers. Using the example of a photographer who has taken an image in NSW, he said: "If my photograph is viewed on a computer in NSW and I suffer damage (like lost revenue) in NSW, then I can approach a NSW court and attempt to recover damages under NSW law."

D'Apice suggested that the first course of action for any photographer who has found their image used without permission is to seek legal advice. Then it will be determined whether legal action can be taken, as well as the possible outcomes.

"What your lawyer will try to do is firstly identify the party who your client is alleging infringed copyright," he said. This step can be a difficult process, though once this has been established, it becomes easier to determine if the claim is worth pursuing.

Copyright infringement by a website, publication or individual in another country adds to the complexity of the situation. If an Australian photographer alleges that someone overseas has infringed their copyright, they may have a case, though again it will depend on the specifics and on legal advice.

"In short: in a place where a creator has suffered damage, the creator has a claim. If the creator is a NSW resident who puts his or her work online in NSW, and an American magazine infringes the creator's copyright of that work in America, the creator may sue for that 'American damage', notwithstanding neither the creator nor the creative work have any relationship to America. Further, the creator could possibly sue for that 'American damage' in a NSW or Australian court," said d'Apice.

He also suggested that a good rule of thumb for photographers who want complete protection under the US copyright system is to consider registering their copyright in the US. This registration may assist in providing evidence as to who actually owns the rights to a particular image.

William Watt is a professional photographer based in Melbourne, who has had one of his photographs used without permission on a US website. He stumbled upon the image when he saw a tweet linking back to a cycling article from the Baltimore Magazine.

"I opened it up, and was pretty shocked to see a photo from my blog that had been taken via screenshot, cropped and used with no attribution or permission," Watt said.

Some people may think that cropping an image can make it more difficult to find using reverse-engineered searches, such as Google Images or TinEye. However, in this case, Watt's original image and the cropped screenshot are so distinctive that a reverse search finds the copy in a split second.

The Australian Copyright Council suggested that photographers who upload their work to a personal blog or website have a visible statement regarding copyright, as well as a contact link. A copyright notice is prominently displayed on Watt's website, and he has clear usage guidelines available for visitors.

Watt said that because he was sympathetic toward the article's cause, he would have been happy for it to use the photo alongside a link back to his website. "The article is getting quite a bit of traction around the web, so it's frustrating to not be at least credited for the shot."

His usual course of action for copyright breaches is to contact the publication in question, either through the comments section or via social media. Due to the increasing prevalence of overseas publications using photos without permission, Watt is also considering looking at registering his work under the US copyright system.

The publication has since credited Watt's work, and provided a link back, after the following comment exchange:

How much are you worth?

Photographers differ in their approach to dealing with copyright infringement. Some choose to send a notice to the person or website that has used a photo without permission, while some decide to send a bill for compensation.

There is no hard and fast rule for pricing photographs. That much is up to the individual, and how much a client is willing to pay. However, when drafting a rate for your own fees, websites like the Stock Photo Price Calculator can be useful for determining a price based on usage intent and distribution. Accreditation institutions for professional photographers also help their members work out fair pricing for images.

It is also worth noting that this process does not necessarily apply to a photographer who has licensed their photos to a third party through an existing agreement, or hands over their copyright to a publication through something like an employment contract.

In this instance, photographers will need to consult this agreement again, as it may detail specifics about creator's consent — for example, the employer may not need to attribute photographs that are created during the contract period.

What about Creative Commons?

Some photographers choose to apply a CC licence to their work. These licences are designed to give creators and end users a way to manage their copyright terms for several purposes. Many photo-sharing sites like Flickr allow photographers to assign a particular licence when uploading an image, though this is not the only way to apply CC licences.

According to the FAQ, assigning a CC licence does not affect the photographer's moral rights (where applicable) to the following extent:

The international licences provide that licensees "must not distort, mutilate, modify or take other derogatory action in relation to the work which would be prejudicial to the original author's honour or reputation". This prohibits licensees from making uses that would otherwise violate authors' moral rights of integrity where that right exists. The attribution requirement contained in all of our licences is intended to satisfy the moral right of attribution.

The ported versions of the licences often contain an adjusted version of this language, in part to account for moral rights legislation in a particular jurisdiction. As a general matter, all CC licences preserve moral rights to the extent they exist (they do not exist everywhere), but allow uses of the work in ways contemplated by the licence that might otherwise violate moral rights through a limited waiver or licence of the moral rights where that is possible.

Adding again to the complexity of copyright-related cases as mentioned earlier, CC licences come in a variety of different flavours and iterations, with differences in the specific wording and terms of each. This means that a photographer wishing to pursue a copyright-infringement case through the appropriate channels will need to seek specific legal advice, depending on the wording of the particular licence chosen.

In the end, if someone is determined enough to use photos without permission, they will find a way to circumvent the protections in place — but there is always an avenue for relief. Raising awareness is important in helping people to understand copyright and the ways it can be infringed upon through practices like reblogging, tweeting and sharing online, so that photographers receive credit and compensation where it is due.

Editor's note: this article is provided for informational purposes only, and does not constitute legal advice.