January 12, 2022

Copyright – why it matters

What is copyright, and why you should care about protecting the rights that you get when taking a photograph?

I write what I would probably call a rant blog from time to time. The topics come from something that has annoyed me, and I want to have an opportunity to vent a little. Hopefully, as well as getting things off my chest, I will share something that you find interesting and informative. This week, I will look at copyright and why it is essential to protect it as a photographer. More importantly, why should users should respect the copyright of photography.

There have been two occasions in the last week that have drawn me to writing about copyright. First, I use a service that checks the internet to identify where my pictures are displayed. I can then determine if the image is licenced appropriately, and if not, they chase the user to purchase a licence. The process has worked well for a few years, but recently they have advised that lower value claims aren’t worth their while chasing, so I have restarted my own process to pursue copyright violations. The violators are commercial companies using my photography to promote their products or services, which I assume boosts sales. Secondly, I found a Taiwanese website that used one of my photographs on their blog about composition techniques. They argued that they had credited the photograph as ‘Courtesy of Google’, which covered them.

What is copyright?

In the UK, copyright protects an artist’s work and stops others from using it without the owner’s permission. Unlike the United States of America, you get copyright protection automatically – there is no application process and no fee. There isn’t a copyright register in the UK.

You automatically get copyright protections when you create the following;

  • original literary, dramatic, musical and artistic work, including illustration and photography
  • original non-literary written work, such as software, web content and databases
  • sound and music recordings
  • film and television recordings
  • broadcasts
  • the layout of published editions of written, dramatic and musical works

You can display a copyright symbol (Ó) on your work. However, whether you mark the work or not doesn’t affect the level of protection you have.

What does copyright do?

Copyright protects the owner from using your work without your permission. It includes copying your work, distributing copies of it, whether free of charge or for sale, renting or lending copies of your work, making an adaptation of your work or putting it on the internet.

There are some exemptions to copyright which you should be aware of. It is permitted to copy limited extracts of works for non-commercial research and private study. However, the study must be genuine, as if, for example, you were taking a college course. Users should ensure no financial impact on the copyright owner when using the work. In a similar vein, copyright works used for educational purposes must only be for the use of teachers and pupils and cannot undermine the sales of teaching materials.

Another exemption that may be relevant to photography is copyright material forming part of parody, caricature or pastiche. If, say, I have taken a photograph of a politician, then someone can use the picture to create part of a parody. However, even with this exemption, the use of the image has to be based on ‘fair dealing’. ‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. The question to be asked is: how would a fair-minded and honest person have dealt with the work? For example, using part of an image printed onto a commercial product that parodies somebody would not be counted as ‘fair dealing’ as the copyright owner would lose the revenue they are entitled to.

How can copyright works be used?

Now we know what copyright is and what it covers, it is essential to understand how works can be used properly. It doesn’t matter if you are a big-time professional photographer or an amateur snapping on a mobile phone; at the point of clicking the button, you own the photograph’s copyright. It is only your decision what picture use is permitted. The critical fact is that the copyright owner must determine whether and how to licence the work.

The easiest way to allow the use of photographs is to create a licence. A licence is a contractual agreement between the copyright owner and user which sets out what the user can do with a work. Usually, the licence takes the form of a contractual agreement and is used when the user is going to exploit the work beyond fair dealing or may on-sell the licence to someone else. As it is a legal protection, it is worth seeking advice from a legal professional to ensure the contract contains the protection you desire.

It’s worth talking about social media for a second. Platforms like Facebook, Instagram, and Twitter will all use your images. When you sign up to these websites, you agree to the Terms and Conditions to allow them to display and transmit your photographs. It also covers the use of sharing by other users. For example, I took a nice photo of the Forth Bridge last week that I put onto various platforms. It was liked and shared a couple of hundred times, which is permissible under the T&C’s. However, the rights I grant to Facebook don’t allow someone to right-click on the photograph and use it for anything other than ‘fair dealing’.

There is a type of licence that gives a simple and standardised way to share your photography on your chosen conditions. It is called Creative Commons. The non-profit organisation works with platforms such as Flickr and Wikipedia to provide licenses in one of six ways. The licenses range from allowing users to copy and distribute the material in any medium or format in unadapted form, for non-commercial purposes only, and only so long as attribution is given to the creator, through to one that only requires the user to credit the owner. It is worth noting that even with the creative commons licence, the user always has to credit the creator for the use (and not as in my example at the start, the website where it was downloaded from.

Marking your copyright

We have already seen there is no requirement to put the Ó symbol on your work to protect it. However, it is good practice to make it easy for a potential user to know the copyright owner. You can read about two ways I looked at a few years ago; adding a watermark and adding metadata. These both provide information to find the copyright owner, although rather annoyingly, some social media platforms have chosen to strip this information to reduce the file size of their images. For example, Facebook leaves the metadata relating to the name and website of the creator but removes other information such as e-mail addresses, physical addresses and phone numbers. On the other hand, Twitter removes all metadata and relies on potential users not downloading the image to claim it as an ‘orphan image’.

What is an orphan image?

An orphan image is defined as a creative work subject to copyright, such as a photograph, for which one or more copyright holders are unknown or cannot be found. If someone wants to use a photograph but cannot locate the owner, they can register the photograph as an orphan work. To do this, they will need evidence that they have carried out a diligent search to identify the owner. The search requirements are extensive, so it is pretty challenging to register an orphan work. Once accepted as an orphan work, the user can add it to the orphan works register for a fee which then grants a licence for use in the UK for up to seven years.

Why is copyright important?

I can imagine that some reading this blog will think that copyright is only there for greedy photographers to make money. As a full-time photographer whose entire income comes from taking pictures, this is the case. But, broader implications need to be considered in how photos are used and its impact on our industry and the cameras you use.

Camera manufacturers will tend to innovate first on their flagship cameras. In the last few years, the Canon R5, Nikon Z9 and Sony Alpha A1 have provided remarkable advances in focus and sensor technology and introduced artificial intelligence to improve the way the cameras work. These cameras have price tags in excess of £5,000, so the users will generally be professionals who need the best gear. Eventually, these technologies trickle down into the consumer camera models, so you will more than likely see eye recognition focus on a £500 camera in a few years. That advancement can only happen while camera companies have the market to sell to high-end users. So, everyone interested in taking photos has a benefit in ensuring that licenses are appropriately obtained and that stealing the rights of image-makers does not become the accepted norm.

Much of this blog has been obtained from some very comprehensive pages on the UK Government website. If you are interested in reading more than I can strongly recommend heading to https://www.gov.uk/copyright

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About the author

As well as running Edinburgh Photography Workshop, Rich Dyson is a professional photographer. His photographs are regularly used in newspapers such as The Times, Guardian and Daily Telegraph. He also had two solo exhibitions as well as being featured in a members sponsored exhibition in the Scottish Parliament. You can see and buy his photography at richdysonphotography.com