What do you do when a media organisation publishes a copy of your artwork or photograph in a print or online media source without your permission?
Firstly, it is necessary to understand what rights you retain as the artist or creator and what exceptions to copyright and moral rights infringement apply. Then, if you still believe an infringement has occurred, there are number of things you can do to attempt to rectify the situation.
What rights do I have?
Copyright gives you, as the artist or creator, exclusive rights in relation to your work, whether it’s a photograph, a painting or another artistic work. These exclusive rights arise automatically at the point of creation of the work and include the right to reproduce, publish and communicate your work to the public (including putting your work online). Copyright infringement is where someone, whether an individual or corporate entity, publishes, reproduces or communicates a work you have created without your consent.
However, there is an exception to copyright infringement for use in the course of reporting the news. A 'fair dealing' of a literary, dramatic, musical or artistic work will not be an infringement of copyright in that work if it is used 'for the purpose of, or associated with, reporting news'. This can be in a printed form such as newspaper or magazine, provided a sufficient acknowledgement is made, or by means of an audio or visual communication, such as TV and radio, including that made available online. The main purpose for the use of the work must be for reporting news, and the required acknowledgment must identify the author and the work by its title or other description to be regarded as ‘sufficient acknowledgement’. Factors that may be relevant to determining whether the use of the copyright material is ‘fair’ include whether the use of the material is for commercial purposes and whether the use undermines the copyright owner’s ability to exploit their own work for financial gain.
Moral rights are those rights you have as an artist to be associated with your work. These comprise:
- the right of attribution – that is, to be named as the creator of your work;
- the right against false attribution – being the right against someone else falsely being named as the creator of your work; and
- the right of integrity – which ensures the work in question is not subjected to derogatory treatment that may harm the reputation of the creator.
There is an exception for an infringement of the right of attribution and the right of integrity, but this is only in the event the infringement is considered “reasonable” in the circumstances. So, if a newspaper or media organisation uses an image in its news reporting without permission but doesn’t acknowledge the creator/author where it reasonably could have done so, then it has both infringed copyright and infringed the creator’s moral right of attribution.
Examples of works reproduced without permission
On 24 January 2013 the Sydney Morning Herald (SMH) reproduced nine different photographs of Florentijn Hofman’s Sydney Festival “Rubber Duck” installation in Sydney Harbour as part of an article about the installation. The main photograph reproduced was taken by a New Zealand-based photographer. The photo was published without consent or attribution; instead the photo was accompanied with the caption ‘a selection of our readers’ photographs of Rubber Duck’. The photographer posted a blog claiming the SMH breached the non-commercial creative commons licence on his site. The SMH maintained it found the photo on a Twitter feed and had attempted to contact the copyright holder prior to publication. No public apology or attribution in its publication has been forthcoming from the SMH to date. Because the content of the article concerned the “Rubber Duck” exhibition it is arguable that the ‘reporting news’ exception to copyright infringement could have applied to the SMH’s copying of the photograph however, there was not ‘sufficient acknowledgment’ of the creator. Indeed, taking the image when it already had eight other images may not be considered a ‘fair dealing’ for the purpose of reporting the news at all. In addition to infringing the copyright owner’s copyright, an infringement of the photographer’s moral right of attribution also appears to have occurred. In the end it seems both the photographer’s copyright and moral rights were infringed by the SMH.
It is important to note that the “Rubber Duck” is itself an artwork and thus the permission of Dutch artist Florentijm Hofman was required to reproduce it – both to take the photo and to publish it, first on Twitter and then in the SMH. While it is not an infringement of copyright to photograph a permanent public sculpture, the “Rubber Duck” was only on display as part of the Sydney Festival for 3 weeks in January 2013 so no exception to copyright infringement applies. It is unclear whether the photographer had permission from Mr Hofman to photograph the work or whether the artist had already granted a licence for such reproductions as part of his agreement with the Sydney Festival which then extended to the photographer. Interestingly, if Florentijn Hofman had not granted a copyright licence authorising public photography then the photographer’s image would itself be an infringement of the artist’s copyright!
Remember, just because you post your photos or artwork online does not mean anyone can use them. The person who took the photograph or created the artwork retains copyright in those works and thus permission must be sought to copy them unless an exception applies. For example, in January 2013, London’s Evening Standard newspaper reproduced a picture of a fatal helicopter crash taken by a witness and posted on Twitter without permission or attribution. Under Australian law the fair dealing exception to copyright infringement for reporting the news would apply in this scenario only if there was sufficient acknowledgement of the creator.
A recent US court found in favour of a photographer in a case concerning the Agence France-Presse and the Washington Post. His photographs of the 2010 Haiti earthquake were posted onto his Twitter account using Twitpic and were subsequently absorbed without permission into AFP and Getty Images’ library, as well as being uploaded onto the Washington Post website. Under Australian law, to reproduce someone else’s work without permission will constitute copyright infringement unless an exception applies. The fair dealing exception to copyright infringement for reporting news will not apply if a media organisation decides to add your photo to its image library or posts it on their website as a pretty picture not associated with reporting the news.
In relation to moral rights infringement by a media organisation, in March 2010 visual artist Giles Ryder saw a photograph of his artwork Hard Kandy reproduced in the SMH lift out, Spectrum, without naming the artwork or attributing him as the artist. The article was about the ‘Hawkesbury One’ syndicate which had been formed to purchase the artwork of up-and-coming artists, including Giles Ryder’s artwork Hard Kandy. Giles claimed an infringement of his moral rights. To SMH’s credit an agreement was quickly reached between Giles and Fairfax Media (the publisher of the SMH) and an image of the artwork with the correct attribution and an acknowledgement of the mistake was re-printed in a later issue of Spectrum.
What can you do if you suspect your work has been published without your permission?
It is always a good idea first to approach the media organisation you believe is infringing your rights to try and resolve the issue informally. You should think about what you want the infringer to do to rectify the situation. This may be in the form of an apology printed in their newspaper/magazine or online. You may wish to ask the infringer to pay a licence fee for the infringing use or even ask them to remove the reproduction from their website altogether. It is always faster and more cost effective to discuss your concern with the other party first as if the infringement was inadvertent or an oversight as they may readily agree to rectify the situation.
If this strategy doesn’t work, you may wish to consider sending a formal letter of demand to the person or company you believe has infringed your copyright and/or moral rights. However, this is a serious legal step and it is essential that you can substantiate your claims in regards to ownership of the work and the infringement of your rights. You should contact Arts Law to discuss your claims before issuing a letter of demand.
The purpose of a letter of demand is to:
- acknowledge that you are the creator and copyright owner of the relevant work;
- outline your exclusive rights (copyright and/or moral rights) in the work;
- specify how and when your rights in the work were been infringed by the recipient; and
- detail the actions you wish the recipient to undertake to rectify the situation and the timeframe within which you require these actions to have occurred (e.g. apology printed/posted, take down notice if online, destruction of the infringing stock or a licence fee and attribution of the work to you as the creator).
Ultimately, a letter of demand can be used as evidence in any future court proceedings to prove you informed the recipient of your rights and gave them an opportunity to rectify any infringement. In any court proceedings brought, you must be able to prove you are the copyright owner and show the recipient has infringed your copyright (that they had access to your work and they copied it).
Arts Law has just finished creating a free letter of demand template specifically for visual artists and photographers where infringements have been made by the media:
To assist all other artists and creators who believe their copyright and/or moral rights have been infringed, the following are also available for free on our website:
As mentioned earlier, it is always advisable to seek legal advice from a solicitor at Arts Law or elsewhere about the strength of your claim and the ramifications of sending a letter of demand.
Further information about copyright, moral rights and infringement is also available from the Australian Copyright Council.