Photographic images copyright legal advice by expert lawyer

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PAIL Solicitors offers bespoke contracts, dispute representation and copyright protetction management for small businesses and startups that are seeking specialist copyright expertise in for the digital media, technology and entertainment industries.

What is a photograph copyright lawyer?

Photograph copyright lawyers specialise in images and whilst copyright lawyers generally know that keywords, SEO, and sticky content generate traffic, generating sales and impact the focus is mostly on text. Photograph copyright lawyers know that images are also important. Images are an essential part of any internet marketing strategy, including using Google Image Search to drive traffic to your website.

How do you use images lawfully on your website?

There isn't a straightforward blanket answer.

The first rule is to assume that the image is copyright-protected by the creator of the photograph, sketch, or icon, and you will need a license to use it.

 The creator of the image owns it by default, i.e. a photographer, illustrator, or artist. In most countries, copyright belongs to the creator by default.

In the United Kingdom, copyright registration is unnecessary, and there is no copyright register of works. In the USA, the owner has an option of registering the copyright with the US Copyright Office. In the US, you have to register copyright works to sue for damages.

Regardless of the registration status, the creator or author (s11 CDPA 1988) still owns the copyright except where the creator is an employee in the course of their employment (s11 CDPA 1988). The copyright may also be assigned, in which case the works will be owned by the person or persons to whom the works have been assigned.

Copyright lasts for 70 years after the creator's death (s12 CDPA 1988).

How do I find out who owns the copyright?

 In the middle of 2020, Google started capturing metadata (packets of information embedded in the image file) to get copyright information. As a result, when you now hover over the image search results, you will see a little 'Licensable' tag pop up on the images that can be licensed or 'bought'. You cannot buy an Online Stock Image. You purchase a licence to use it and pay a licence fee. Leading stock photo agencies include Shutterstock and Adobe Stock, and their images are the simplest to track for copyright and licensing information. Individual photographers and artists can also enable licencing on their portfolio sites for licence fees. Stock photo agencies will have verified the ownership of the original image and checked the image for its quality, resolution, and legal usability of images of people and property, with the proper permissions in place. There are also free stock photo sites offering the use of free images. There have, however, been instances when these agencies have not been able to verify the authenticity of the image creator. In this situation, the end user takes on the risk of having used an image without the necessary permissions.

Instructing Copyright Lawyers

The licenses themselves are of a few different types. Typically lawyers do not get instructed regarding stock photo images particularly when they are Royalty-Free as the value of the images is too low. The fee for Shutterstock's plans starts at £19/month for ten images a month, or you can pay a one-off £29 for five images. These low licensing fees will not commercially justify instructing any solicitor at the solicitor's hourly rates.

Copyright lawyers get involved when individual photographers and artists are charging significant license fees for their works, or the images are of critical importance to the business, such as stolen product images from a website as part of a product catalogue.

Typically a copyright solicitor would be instructed where a marketing agency has commissioned a photographer or artist to create some works for, say, a spring-summer 2020 seasonal marketing campaign. The marketing agency signs a licensing agreement for that spring-summer 2020 campaign for a significant license fee, then, for whatever reason, uses the works from the spring-summer campaign for another season without renegotiating a new license. In these situations, either the photographer or their representation agency will want to be compensated for the unauthorised use of the works and, if negotiation fails, may bring several claims against the marketing agency, including copyright infringement.

So, are stock photos the only option? What about social media?

If you are on a very low budget, then paid-for stock photos are probably the safest option. A large variety of agencies can offer anything from millions of options to a few quirky, bespoke photographs depending on your taste. You will need proof that you have paid a licence fee to use the image. Images from social media are subject to the same copyright regulations as any other photographs you find on the internet. Some photographs from social media platforms will pop up during a Google search for images. Using these photographs in the absence of explicit permission may result in you breaching copyright laws. You are allowed to use a link to the social media post itself or embed it within your own site's content. Embedding is essentially a link to the main post on the platform's website or app, which appears as a thumbnail along with some blurb. In essence, you are not copying content, merely asking your audience to read the content on the platform's pages. If you really like an image and want to use it (and not simply embed it), you should approach the image owner and ask for permission. Often, they may let you use it and ask you to credit them; or ask for a fee. In either case, do ensure that you have a written (or email) confirmation of your arrangement.

Tell me more about licences?

Stock images are rarely assigned or sold. Their owners license them out for various uses. When purchasing from stock photo sites, you will see the following terms used:

 1.     Royalty-Free

2.     Rights managed

Royalty-Free:

Most images are licenced as Royalty-Free. A Royalty-Free license grants the licensee a non-exclusive, worldwide right to use the image on the internet and for print runs. Based on the number of print runs, the project's budget, or use for printing on merchandise, you might need to purchase a Standard Licence or an Enhanced Licence. An Enhanced Licence usually allows you to make an unlimited number of copies of the image for distribution, whilst a Standard one limits this number.

Rights Managed:

These are more restricted in how, where and for what purpose you want to use the image. If you're looking for an exclusive use condition, this is the type of licence you want. If you wanted to use an image for an extensive advertising campaign, you would get a Rights Managed image. These will usually cost a lot more than a Royalty Free, particularly if you want exclusive use of the image.

What about people in images? Do I need permission from individuals?

To legally use a photograph of an identifiable individual for a commercial purpose such as advertising, you need permission or something called 'Model Release'. Stock photo agencies will only accept images from contributors if presented with a valid, precise model release – another advantage of licencing an image from a credible authority.

There is an exception to this rule. If you're using the image for non-commercial or editorial purposes, for example, you want to illustrate your blog post or article on, say, motorway services getting crowded in summer. You could, in this instance, use a photograph where people are milling around in food courts at a motorway service stop. But say you were the owner of a small restaurant in those services, you couldn't use the picture of a customer without their permission, to promote your restaurant such as in an online or print advert. You would need a Model Release to do so.

You should also note that a person's photograph is Personal Data within the definition in Article 4 EU and UK GDPR. Data protection laws apply if photographs are not taken and published exclusively in private areas.

Finally, this also ties in nicely with the two types of licences available – commercial and editorial.

 A photograph with a commercial licence allows you to use it for purposes such as adverts and online/print promotional material such as Facebook posts and brochures. You cannot use an editorial licence for promotion and adverts, only for illustrating articles such as news stories.

I have come across the terms' Fair Dealing', 'Creative Commons' and 'Public Domain'. What are these?

Fair dealing refers to an exception where the use of copyrighted works is illegal. Fair dealing is often misunderstood and subject to too broad an interpretation. An example of Fair Use is the photograph in the above example of motorway services, where someone used your photograph showing a crowd at motorway services to illustrate that this is not helping the containment of the COVID pandemic. That would be a fair use of your photograph. Educational Use falls under fair use.

Creative Commons is an American non-profit organisation that seeks to promote the use of creative works for education and make resources available free of cost to the broader public. They rely on contributors making their assets available for free use. Whilst the intent of the organisation itself is noble, and they issue licenses where you can indeed use the work for free, it is worth bearing in mind the situation described regarding free stock photo agencies. There is no or little regulation to verify if the original contributor contributed to their creation and had the proper permissions from people and property in the image. This leaves you open to both criticism and litigation.

The term Public Domain is used to describe the existence of a piece of creative work, usually after 70 to 100 years after the creator's death. In these situations, the copyright expires, and the piece of work comes into the 'Public Domain'. However, it is not always guaranteed that if the creator has been dead 70 or 100 years (depending on the country), the work is now in the Public Domain. The laws vary from country to country, even for the same work; the term Public Domain is often used in books and films rather than images.

Can I get sued for using someone's copyrighted work?

If the copyright owner of an image were to find you using their work on your website or publication without their permission, then yes, in principle, they could sue you. In practice, they are more likely to get in touch with you and ask you to either take down their image or demand a 'reasonable' fee for your usage of their creation. What counts as 'reasonable' is a matter that is best reflected by your use of the image. Are you simply using it on your blog post with a few readers? Or have you used this on your company's advert on Instagram, and you have upward of a hundred thousand followers? Are you selling high-ticket items using their image? A license fee is usually something to negotiate. If they want you to take down the image, that is what you should do unless you can rely on an exception or a defence. It is recommended that you get legal advice at this stage on either the license fee that you should pay or whether the purported owner has a reasonable claim for copyright infringement.

Can they go to court? Again, yes. But the cost of filing a case, filling out legal paperwork, hiring a lawyer, and other court costs can often be good reasons for most ordinary people to not go to court. However, if we are talking about big corporations or a bespoke photograph made for a client in question, you may well find yourself in court and expected to pay legal fees, usage fees and perhaps damages. It is hard to put numbers on how much you could expect to pay out if you did get sued. But suffice it to say that unless there is a sum of £5,000.00 or more at stake or the works have some other significant inherent value to your business, it is neither worth the hassle nor the payout to take the matter to court.

Are there any ways to remove images owned by me if someone might have used them online without my permission?

Yes, there are. Most social media platforms offer a way to address this issue. But before we move on to removing images, you should know that it is worth watermarking your images with your name or logo before putting them out on the internet. A watermark is a semi-opaque signature, text, or icon, which you can display in the actual image. There are several watermarking apps, including most photo editing software such as Adobe Lightroom. Opponents of watermarking argue that it destroys the aesthetics of the image. Also, if someone wanted to, they could try and remove watermarks. However, it does need some specialist knowledge and skills to do so. By using a watermark, you are not guaranteed that your image won't be stolen. You are simply making it more challenging to steal your images.

Coming back to addressing the issue of your images that you think might have been stolen. Platforms like Instagram let you submit an intellectual property infringement appeal. Similarly, YouTube lets you submit a 'takedown request' if you think another channel has used your content without your consent. Takedown requests give the other party a week to take their content offline, after which penalties may be imposed. Penalties may take the form of a warning or a limited ban on posting new content in the first instance. In all cases where you appeal, you will perhaps be asked by the platform to submit information to support that you created the content – usually in the form of metadata associated with the image or video.

You can also use a service such as DMCA, which stands for Digital Media Copyright Act. It is an industry-established protocol for taking down content at the request of the copyright owner. Several Internet Service Providers (ISP) accept and comply with these standards. DMCA requests for 'takedowns' are a paid service, either as a one-off or a subscription. The DMCA website also has a comprehensive section of reliable, good-quality information which can be an excellent reference point if you ever find yourself in a position where you think your work has been stolen.

So, what exactly is the best way forward?

The absolute safest way to use any media – photographs, videos, music clips, icons, or any other creative media – is to purchase a licence. If you are using a picture from a Google search in a presentation to a few colleagues, then you will probably be fine. You could attribute the image to the author, i.e. give them credit for using it.

 But if you are using it for anything beyond that e.g. in a corporate presentation, in an online social media advert for your small or medium business, printing a flyer or making a brochure. In that case, you are simply better off purchasing a licence from a photo agency. Getting a license gives you the peace of mind that you have the correct permission from both the people in the photograph and the photographer's permission through the agency to use the photograph.

 To obtain accurate advice about your business' legal compliance status and how we can help, please contact us on (020) 7305-7491 or at peter@pailsolicitors.co.uk, and we would be delighted to assist you. To learn more about copyright infringement please browse through our other blog articles.

The writer is a specialist copyright lawyer and principal solicitor at Pail Solicitors. Peter Adediran's specialist niche areas of practice are digital media business SME's and IP, contentious and non-contentious. (Charge rates may vary).

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