Arts Law was approached by a professional photographer who was concerned about retaining copyright in photographs that she had taken professionally. She had taken multiple photos of a friend and had given them copies to show their family. She later discovered that some of the photos had been uploaded to Facebook without her permission or attributing her as the photographer. She was very worried about the effect on her ownership of copyright in the photos and her ability to use them again in the future.
Arts Law explained that the photographer is the owner of copyright in photos they have taken, subject to a few exceptions. Photographs commissioned for a private or domestic purpose pursuant to an agreement will be owned by the party commissioning the photos. Examples include photos taken professionally for some kind of family or private occasion, or photos taken privately within a particular group or organisation. On the other hand, the photographer will own copyright in photos commissioned for a non-private (commercial) purpose such as for ads, magazines or company reports, as long as the photos were not taken during the scope of the photographer’s employment and they did not assign the copyright to anyone.
The photographer, as copyright owner, can dictate terms for reproducing their work including where their photographs may appear and for how long. Copyright owners have an exclusive right to reproduce (eg. making prints), publish (make copies available to the public for the first time) and communicate the photo to the public (eg. putting it on a website). Using commissioned photos beyond the purposes originally agreed is a breach of the photographer's copyright.
Creators of copyright also have personal legal rights known as moral rights which include the right to be named as the photographer, not to be falsely named and for the photograph not to be altered in certain ways.
The client told us she was not commissioned to take the photos nor had any agreement with her friend regarding them. Giving a friend or family member a copy of her photos does not change the fact that she is the owner of copyright. Uploading her photos onto Facebook without her permission is copyright infringement. We have an information sheet explaining different legal issues in relation to social media sites.
In order to protect her copyright in the future, Arts Law suggested she could enter into written agreements or inform the other party in writing of her rights before handing over any photos or negatives. Since the ownership of copyright in photographs is separate from the ownership of physical items, such as prints, negatives or digital files, any agreement should cover these issues.
Another way to protect copyright is to watermark photos, put them in a low resolution, lock them or use the © symbol.
Arts Law also referred her to our sample Photographer’s Release. It is recommended best practice to have all persons being photographed sign a photographer’s release which then gives the photographer permission to use the images and releases the photographer from any liability in connection with the use of any photographs.
In the end, the client decided not to pursue legal proceedings. Instead she sent a firm letter asking that she be mentioned in relation to the images or that they be removed completely from Facebook. She reminded them that in future, they needed permission from her to post any other photos she had taken. The friend ended up tagging the images and the issue is now resolved.
“I have certainly learnt my lesson in terms of how and who I share my images with. I should have been clearer before giving them the photos as to what they were to be used for and why. Since they did not pay for them, I should have also watermarked them just in case.”