Disclaimer: First, let me make it absolutely clear that I am not a lawyer, and you should not consider this article as legal advice. These are the common-sense guidelines I personally follow for my work as a photographer when sharing on social media.
I have been sharing my photographic work on social media for over a decade, and I have had my share of images stolen and used by companies and individuals. I love product photography and teaching my technique to others, therefore my work is widely available and often “borrowed” by companies especially for social media campaigns. In my early days, I used a variety of text and overlay watermarks thinking that this meant I had copyrighted my work and I was protected in the eyes of the law. I read that saying if I was the one pressing the button and could prove that I owned the work I was safe. This is true, but the fact that most people will leave out is that unless your work is copyrighted through the proper channels, it is highly unlikely that you can claim any sort of damages from someone using your image. Without proving copyright, the best you can hope for is stopping the company or individual from using your image with a cease and desist notification. This is the rule but there are exceptions, as in a well-known photographers bring able to sue companies for using their images and actually netting a settlement.
World Wide Theft
The internet is a crazy place, and the legalities of using an image you find on the internet for your website seem to be changing by the day. Where things get a bit muddy is in the case of fair use. This is the use of an image for purposes of education, review or discussion. To claim one is using an image under fair use, it must not interfere with the owner’s rights:
“The purpose of the Fair Use Doctrine is to allow for limited and reasonable uses as long as the use does not interfere with owners’ rights or impede their right to do with the work as they wish.”
What this means is that someone reviewing a product should be able to go to the manufacturer’s website to “borrow” an approved photo of the product for their article as long as the image is used in the context of reviewing or discussing the product… messy, right?
As of this writing, you are not freely allowed to use copyrighted images you find on the internet for your website or calendar but you can use them for a school project – in most states. This is being challenged, so check the news for updates.
So, what does this all mean for photographers? First, yes when you take the image copyright is automatically attached, you own the image and have the right to:
- Reproduce the copyrighted work;
- Display the copyrighted work publicly;
- Prepare derivative works based on the copyrighted work; and
- Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.
What this does not give you the right to is recover damages from someone using the image without permission. Here is a scenario to consider. Keep in mind that this does not apply to images which are sold on stock photography sites.
You take an image of a beach scene with a pair of Nike shoes on a beautiful beach with a sunset and post it online. The next week you are searching social media and see Nike is using your image to promote their new shoes. You start to see dollar signs dance in front of your eyes and head to a lawyer who specializes in copyright law. What are the odds you are going to get paid for your image? Well, first, you didn’t copyright your image and just posted it online. Nike is a US based company, so they must abide by US copyright law. However, unless you can prove that Nike damaged your reputation or ability to use the image it is unlikely you will see any damages from this situation. Your lawyer will send a cease and desist letter and that will be the end of it. This all assumes that you can find a lawyer that will take your case – the first thing most lawyers will ask you is: “is the image copyrighted” if the answer is no, it is very likely they will not take your case.
If you have copyrighted your image before posting it online, there is a good chance you will see some damages from the offending company, however, you have to keep in mind that you are required to prove how much you are out of pocket by the entity using your image without permission. Things can very costly in a hurry in terms of legal fees. Where things can get even worse is when the company who used your image is out of the US. In this situation, you need to find a lawyer who is willing to take the case, and you will be working a huge uphill battle. Whether this is worth the cost and trouble is dependent on the company who used your image.
But I watermarked my image?
When you pressed the button to take your photo, copyright and ownership is already assigned. Putting a big garish watermark on the image isn’t going to make it any less likely that it will be stolen. There are web options available to remove watermarks from photos automatically, and the ones that are more challenging are still easily removed by anyone with basic photoshop knowledge. Putting that big watermark on your image only keeps the average person from using it, not anyone who truly has the desire to steal your work.
Where watermarks are a deterrent are when there are many images available of the same subject. Just search google images for beach sunset and you will see some that are watermarked and some that aren’t. Someone looking to use your image without permission will likely choose a non-watermarked image of a sunset because it is the easiest thing to do. For me, the only time I bother to watermark an image is when it contains something unique.
What can you do?
Realize that the images you share online can be stolen. Copyright your images through copyright.gov and keep an eye out by using image search engines like tineye.com If one of your images has been stolen, and you copyrighted it, find a lawyer who specializes in copyright law and see if you have a case, but don’t get your hopes up.
I copyright all my work through the US copyright office (link below) before I post it online. Current changes to the copyright system don’t allow photographers to copyright an unlimited number of photos at a time like you could originally. Users are only allowed to copyright 750 images at a time, and they have added another hoop the user has to traverse – you are no required to provide an Excel document with file names and project names. A bit more trouble, but I have noticed that the turnaround to complete the copyright process has improved dramatically.
The CopyTrack service is another good and mostly automatic way to track your work online. You upload images and they scour the internet looking for websites which have borrowed the work without permission. The cool thing about their service is that if they find a fraudulent use of your work, you can file a claim through their site and (for a percentage) they will attempt to recover funds for you.
I also use Google reverse image lookup to track how my work is being used online. They allow you to upload an image (which is only kept for seven days) and Google will compare it to the massive Google Images database. This one tool alone is invaluable in tracking your work online and it only takes a few seconds per image. If you use the Chrome browser, you can save yourself a step and alternatively go to the image on your website and right click it, the provided dialog box allows you to search google for that image. I will put links to all the resources mentioned here at the end of this article.
With changes to US copyright processes, it is a bit more time consuming (and expensive – 55 dollars versus the original 35 dollars) to copyright your work but at the end of the day one copyright infringement can pay for your troubles. Get rid of the silly watermarks and copyright your work the right way, you will be happy you did.
US Copyright office:
Google Reverse Image Lookup:
Hey! I love to hear from my readers! Feel free to contact me via my social media sites I would love to hear your thoughts on this or any of my other articles! Until then, get out and get shooting!
My Photography site: http://www.tahquechi.com/
My Bodyscapes project: http://www.bodyscapes.photography/
My travel site: http://www.blindtravels.com/
Instagram and Twitter: @nedskee