Copyright, Social Media & Orphan Works – Advice for Protecting Your Photos

© Liz Kearsley 2010. Bronwyn Malloy on Spanish Banks, Vancouver. Shot for Ahimsa Media

Many photographers have become fearful of the internet, in recent years.  It is a double edged sword, a great tool for getting our work seen by a wider audience, but it’s also hard to track images, copyright infringements and keep up to date on where and how to safely display our portfolio.

I was rarely lucky to be trained in photographic law, the importance of retaining copyright and it’s worth.  However, with an increasing number of people entering photography from a range of backgrounds, it is becoming vital for us all to keep up to date on the legalities of copyright and how the internet affects your rights as a photographer.

The easy part first: if you take a photograph, whatever it is of, (unless you agree e.g. through a staff job or by written contract) you own the copyright.  You do not need to register your photographs in order to activate it.  However, if you are uploading images to online sites or submitting to any news outlets, competitions … etc. you must, must read the terms and conditions as many will remove all of your rights.

There is infinite depth to this topic, so today I am going to try to simply highlight a few key issues that are likely to affect the majority.

A screen shot of one of Ahimsa Media client Yorkton Film Festival's watermarked albums on Facebook

The most prevalent image outlets in my mind are the ever growing social media sites. They are wonderful tools for connecting with friends and networking, but are not designed to protect the photographer, quite the opposite. Take for example Facebook, they have been recently hitting the headlines due to the site’s privacy laws. From a photographic point of view, their terms have another massive problem. Every time you upload a photograph to Facebook you agree that :

“For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

What this means is that as long as your photos are on Facebook, they can be used by Facebook without paying you. They don’t prevent you selling elsewhere, but can use your pictures for free.  For this reason I ensure any content I place on facebook is watermarked.  Of course, the vast majority of snaps we put on Facebook are not commercially viable, so you have to decide what you don’t mind being used by others.

Facebook terms, however, are not the only thing we should be fearful of.  An even more worrying feature for the future is the stripping of photograph metadata, and as a result the loss of all copyright contact information.

Metadata is a photograph’s embedded information.  It is contained within the photograph and is there to inform the viewer / potential buyer how the photo was shot, by whom and what it is of.  Some of this data is automatically recorded by the camera (it does depend on which camera you have, how much, if any, is recorded).  For example, the camera settings, f-stop, shutter speed, ISO.  Other information is inputed by the photographer using editing software, like Adobe Photoshop or Lightroom.  We use this to record our copyright information, website, keywords, captions. … etc … etc.   It ensures that anyone who may wish to use your image knows who to contact for permission.

A screen shot of an image in Adobe Photoshop with the metadata box (file info) open to edit.

In the past (and even at current), metadata has been enough to cover us legally should anyone try to use a photo without permission, as you have included your contact information and if they do not follow up it is a copyright breach on their part.  However there are new laws in the works in both the US and UK relating to Orphan Works.

Without getting too technical, in the last 12 months, both countries have come close to passing bills, which if passed, would have legislated the commercial use of any photograph whose author cannot be identified through a suitably negligent search (an orphans work).  That would mean anyone could use any of your photographs that are not watermarked or do not contain metadata.  Currently strong industry opposition has prevented this legislation, but many think it is only a matter of time before it becomes a reality.

In layman’s terms and in the words of Copyright Action, this is what this bill would mean:

Essentially, if photos were cars, so long as the numberplate is missing (or you can get rid of it and claim it was missing), you’ll be able to legally TWOC and use it on payment of a fee to the Government.

And facebook is not the only one to strip your metadata. Most social media sites and blog providers strip that data too. Why? Because doing so saves a little bit of space per image, and with millions of uploads, site providers think this is worthwhile.  They realize few people are aware of the affect that this could have, and I must admit before writing this post, even I was unaware of the extent of sites stripping data.

US photographer, David Riecks, has been doing some research into metadata stripping and his early results shocked me.  He has created Controlled Vocabulary to document tests on different sites and see how they change photo uploads.  As expected, Facebook, Twitter and Google Docs removed all metadata. Flickr retained the content (despite my hearing comments to the contrary).  Currently getting mixed information with blog, like WordPress and Blogspot, so testing that further.  Will get back to you with my findings.

If you are worried about your rights and the law regarding your images, there are a few ports of call I try to keep an eye on: firstly Carolyn E. Wright’s photo attorney website, as she is uniquely useful being a full time photographer attorney, who is also a professional photographer.  Out of Britain I have found EPUK invaluable.  They deal primarily with the editorial market, but their sister site Copyright Action contains a great deal of useful basic information for both photographers and image buyers.  And finally Pro-imaging is great for a variety of information.