A question of copyright

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The internet is a mixed blessing. One the one hand it provides everyone with ready access to an amazing range of information and knowledge, but on the other hand it makes it much easier for users to illegally download and use content.

The music industry in particular went through significant change when artists were missing out on valuable royalties when their music was freely distributed through platforms such as the original Napster. This has now been addressed through the many paid subscription streaming platforms now available. As one of the creative industries, photography has now become a victim of the illegal downloading of images from web sites, Facebook and other social media platforms. We live in a world where there is a growing expectation that photographs, music and videos should be available for free and that they can be shared amongst friends and distributed more broadly without any consequence.

In general, this is not the case!

At a legislative level, the copyright of photographs is protected by the Copyright Act which states that, for commercial photography, the creator of an image automatically owns the copyright of the image. Therefore unless, the photographer is happy for the image to be available under a creative commons arrangement or a third party has been granted a licence to use the image, the use of the image by any other party is illegal.

OK, so there are a few measures that can be taken to minimise the risk of images being downloaded or, if they are, limiting their use.

1.     The image can be right click protected – this means that if an image is clicked on it cannot be downloaded. However, as with all things technology, if you are savvy enough this can be worked around

2.     The image can be watermarked – this makes the image less attractive to the casual user, but anyone with minimal Photoshop skills can get around this. In any case, a watermark of any use detracts from the image.

3.     The image can be uploaded at a low resolution – this does not prevent further distribution, but it does minimise what use it can be put to.

Right Click Protect    Eureka_011

But what about professional commercial photographers who are commissioned by clients to take photographs of their products and services – do they own the resulting images? Some clients have an assumption that they own the assignment images on the basis that they have paid for the service.

Unless a prior agreement has been to transfer the ownership, this is not the case.

My assignment fees generally comprise two elements: 1) the time taken to prepare, take and post-process the photographs and 2) the cost of the licence to use the images.

A licence to use the resulting images usually forms an integral part of the service contract between the client and the photographer. Unless provided for in the licence agreement, any further distribution of the images contravenes the Copyright Act and can attract significant penalties.

Therefore, if a client wishes to distribute the images across their network, a licence to use the images by other users must be obtained from the photographer. This achieves two objectives: it eliminates the potential for breach of copyright by those other users and it makes them aware of the restrictions in the use of the images.

In order to reflect the value of the image to the licencee and their business, it is normal for a fee to be charged by the photographer for such distributed licences. The commercial arrangements around the cost and structure of licences is open for negotiation between the photographer and the client. In regard to this, my next post will consider different ways in which these commercial arrangements can be structured.

For more information about Photographers and Copyright, download the information sheet ‘Photographers and Copyright’.

I am also in conversation on this subject – view the video ‘A question of copyright’.



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