The objective of this activity is to develop an understanding of moral rights and copyright in regards to the photographic industry.
The Australian Copyright Council’s website has all the resources a photographer needs in regards to copyright and moral rights. After going to the website and reading the links listed below, your activity is to reflect on these three scenarios:
- As a working professional photographer you have noticed that someone has used one of your images on their blog. They have not credited you for being the original photographer, but have not said that they are the photographer either. It is just a personal blog showing interesting photographs from around the world.
- As a wedding photographer you notice that at the local shopping centre one of your images in the window of a “QuickPrint” printing shop. After talking to the shop owner, he tells you that a couple came in and got some enlargements done and agreed to let the shop owner display one of the images in the shop window.
- As a working advertising photographer you take an image of a building and cityscape for a regular client. You agree on usage and a price. It is agreed that the image can only be used for 12 months and printed up to A3 for brochure, internal marketing and on their website and not to be used overseas. Six months later you notice that your image is being used on the side of a tram, covering the entire tram. Once you start investigating this you notice that your image is also being used for advertising in international magazines.
Australian Copyright Council:
INFORMATION SHEET G043v12 moral rights
INFORMATION SHEET G011v14 photographers and copyright
INFORMATION SHEET G24 Assigning and licensing rights
Allow about 2 hours to complete this activity.
Post a 100 word (minimum) reflection of each of the three scenarios, including what actions you should take in regards to your copyright and moral rights.
Reading through all of these scenarios, I can see that many of these situations could have been avoided by having proper metadata embedded in each file during the original workflow. Comprehensive metadata outlining precise usage rights and appropriate extensive keywording would have alerted a commercial printer to the potential abuse of copyright in the last two cases, and enabled the printer to contact the original photographer to confirm usage rights. Of course, along with these measures, any photography sale should include a very comprehensive written contract, with personal and individual clauses separately pointed out to each party and signed off on.
I truly believe that comprehensive client education could have prevented the first, perhaps in the form of a statement under each image published on a website (assuming that’s the method used to harvest it) although I suspect it’s more a case of ‘what they don’t know won’t hurt them’, in which case, education needs to be done after the fact, and possibly re-inforced with legal action should the user prove to be reluctant to observe the niceties.
Scenario 1 could easily be a communications breakdown. With the proliferation of blogging in modern times, many people just start creating blogs without fully understanding all of the legal requirements regarding intellectual property usage.
As I prefer to maintain the moral high ground in situations like these (it’s almost impossible to argue with someone who is obviously right and calm about it), I am inclined to approach the blogger privately, pointing out that I or my business own copyright to that image, and perhaps providing a screen shot of the metadata that is embedded into the image as proof of both my rights and the transgression that has been committed. I would expect that as the image is probably low resolution (and to be honest, if I put it on the web, it should be watermarked as well as full of metadata), that a solution to this issue would be to ask for an acknowledgement that the image was taken without permission, correct acknowledgement of myself as creator and copyright holder, and a link back to where the original image was published would be sufficient compensation if I were happy for the image to continue to be published on that particular blog, or asking for removal under the terms of copyright stated if I were not.
A last resort would be to send a cease and desist notice from a lawyer, but I truly hope that this would not be necessary.
As this is a professional printer, surely the situation could have been avoided again, by embedding comprehensive information into the metadata if the file was digital, or using a professional laboratory that can put copyright information on the back if it was a printed file. Those are certainly steps to take to prevent future instances.
However in this case, to repair the damage done on this occasion, I would point out that despite the client paying for the original images, I am still the copyright owner, and have not given permission for them to be displayed. However, as this is a print shop, and could be a good networking opportunity, I would not ask him to remove it, but would instead settle for educating him on how to look for copyright information (he should already know, but giving the benefit of the doubt is part of maintaining the moral high ground) in the future, to make sure that the image is credited to me, perhaps with a sign on it, and by him displaying my business cards so that anyone looking for a photographer through him can be recommended to me. This saves having a printer badmouth me for asserting my rights and puts him on my side instead.
As to the original couple, unfortunately, even though I would probably still have their contact details, unless they contact me in the future for photographic work, when I could take the opportunity to point out their breaking of our earlier contract, I would probably not contact them to arrange for payment or to inform them of copyright breach. The costs involved in pursuing it legally would not be recouped, and the bad word of mouth would be a huge disadvantage to my business.
This scenario is where I WOULD get nasty and call a lawyer or barrister. This is a very clear breach of contract by one of the signatories (the other cases didn’t involve the actual client at the point of breach), and as a commercial contract, they really are responsible. My first point of call would be to get my lawyer to draft a cease and desist AND an invoice for all current usages of the images. Should that be ignored or downplayed, I would be asking for compensation in the order of some magnitude, as the images that I provided were not designed to be enlarged by that amount, and would not be a good representation of my work.
With this case, I would not rest until I had either a fat cheque and written apology from the company involved, or a fat cheque and a judgement in my hand. I have pursued similar infringements to my IP from other companies on earlier occasions, however, and I find that a stern letter from a barrister tends to make most people back down when it is obvious that they are in the wrong.