Nigel*, 65, a celebrity photographer based in The USA, runs a photo agency capturing celebrities such as Fergie or Britney Spears which are then distributed to newspapers and gossip magazines globally. Multiple online entities used Nigel’s photos from his website without permission which resulted in him taking legal action.

Nigel stated that the photos were stolen mainly by online bloggers and websites. He referred to 2007 as the copyright infringement epidemic due to the blogosphere phenomenon. In 2006 it was the introduction to microblogging which involved sharing stories and news in the smallest format possible, using 140 characters on Twitter, which has increased recently to 280 characters.

In February 2007, the website called Tumblr was created by Josh Lowenshohn and he believes it is for people

“who feel they may not have enough content or time to write a full blog, yet still want to write and share links and media”.
 

The Global problem for Photographers

An increase in the usage of blogs and social media sites (Twitter and Facebook) has resulted in individuals embezzling other peoples’ work and sharing this without the owners’ permission which is copyright infringement. Nigel’s experience with this is when he carried out a shoot in the morning the images would be illegally distributed on blogs and social media sites the same evening.

What is copyright?

In the United Kingdom copyright is under an act which is formed by the government called the Copyright, Designs and PatentsAct 1988. The act gives the creator a set of rights which lets them change or distribute their work without any permission. When the creator produces something the copyright is automatically assigned to the product. This provides control for third parties who want to use the product by paying commission or making a contribution. For example, when work is copyrighted it can prevent people from doing the following:

• Replicating the work

• Providing copies for free or for profit

• Posting it online

What does Copyright Protect?

The Copyright, Designs and Patents Act 1998 protects the following types of work under the act:

• Literary works (written, spoken or sung, journals and newspaperarticles);

• Published editions, Databases, Artistic works (photos);

• Musical works (any original composition recorded in a permanentformat);

• Dramatic Works, Sound Recordings, Films (original footage in anymedium); and

• Broadcasts which are all protected under this act.

The Duration of Copyright

Once an item of work is created the copyright will then last a certain length of time and that duration is determined by the type of work. Written, dramatic, musical and artistic work will remain in the authors copyright for 70 years after their death. This is also similar for films, with copyright lasting 70 years after the death of the director, screenplay author or composer. With regards to sound and music recordings the author keeps the copyright for 70 years after it is first published. The shorter duration is for Broadcasts which lasts 50 years after it’s first broadcast.

Infringement Testimonies

Mark a wedding photographer fromDerry-Londonderry in Northern Ireland, had a copyright infringement incident after a photoshoot. The photo shoot was a success and the client purchased five prints and no digitals.

The following conversation is between Mark and his partner regarding the recent photo shoot.

Mark’s partner: “About a week after the photoshoot I saw a beautiful canvas that you had made for your client”

Mark: “I questioned the client about it and when I went on social media I seen that she had a huge 47 x 32 canvas on her wall and it was one of my prints”.

Mark established that the client went to a number of printing companies who refused to make copies of the image because his copyright was on the back of the image. However, a well-known printing company put the print on a scanner and enlarged the image for a canvas.

Mark said:

“In my opinion, I wouldn’t approach a company over telephone or over email, I would approach them in person if they are local. Myself and another photographer attended the commercial printers and explained to them that the image had been copyright breached and that I was seeking compensation”.

This led the owner to contact Mark which resulted in a conversation about what happened and Mark asked for £500 in compensation; the owner counter offered £250 instead.

Mark considered taking legal action but after some consideration he accepted the £250 and their apology.

Mark did not take legal action as he felt it would take considerable time and money. Mark may have been able to gain compensation of up to £1000 however the legal fees would have amounted to several thousand pounds so he opted for the settlement of £250.

Simon Philips from the Instagram page SDP Photographics is anAustralian photographer who specialised in motorsport but now is a landscape photographer. His advice is that he enters his name into the copyright section on his camera and when a photo is taken his name appears in the metadata.

Simon said:

“There isn’t really anyway in protecting their images, people always get around it and there’s software that removes watermarks”.

UK and US Copyright Law

Áine Ní Raghallaigh works for a company in the United States, called ImageRights International who provides a number of different services such as intelligent image search and copyright enforcement services. These are all aimed at photo agencies and professional photographers worldwide.

Áine is VP of Operations, where she works with clients on different issues such as infringement claims along with overseeing the assessments of her team. She works with their in-house recovery team and legal partners on the claims that they are pursuing on behalf of clients.

Áine highlighted the key differences which makes the US and UK copyright laws different.

In the UK when a photo is created the copyright is automatically applied and this is the same in the US. However when you want to file a copyright infringement in the US the photo needs to be registered with the United States Copyright Office within a certain time of it being published or before infringement began.

The time limit is three months, which entitles a photographer such as Nigel to claim for solicitors' fees, as well as statutory damages of up to$150,000 per work infringed. If the photo is not registered within the three months you are only allowed to seek damages however your legal fees will not be covered.

Nigel’s attempts to take images of high-profile individuals, capturing them at that specific moment is essential and extremely valuable. The photo must be exclusive which adds substantial value to it thus making it is easier to claim damages if it is stolen. If the image is stolen this preventsNigel from selling it to other companies or news outlets because it has been shared online without his permission.

In the UK you do not need to register the image to make a claim in the courts. If a photographer has a claim under £10,000 they would be able to pursue it in the Intellectual Property and Enterprise Court's Small ClaimsTrack.  This is a very straight forward procedure and is designed to allow the plaintiff to represent themselves which eliminates any large legal bills. In the unlikely event that the photographer’s claim is worth more than £10,000 they have to seek redress through the FastTrack/ Multi Track process.

The Fast Track process is used for claims worth between £10,000 - £25,000and the cases normally take one day but can take a year to get a hearing. TheMulti Track process is for cases that are over £25,000 and can take one/two years to get a hearing.

In the US it is easier to claim a substantial amount of money compared to the UK due to the different routes which are available for larger claims. In the UK the court normally awards two times the fee of the image. For example, if Mark’s image cost someone £500 he would only get £1,000 awarded plus any other damages in the UK and the legal fees will also be paid.

Often, the photographers in the US do not register their images mainly because of the cost or lack of knowledge of the process. Nigel does not register his images unless he has to sue, as the type of images that he would sue for would normally be stolen during the three-month registration period. The images have a sell by date and would most likely be stolen on the day taken or posted online.

The Ease of Stealing

In the UK stealing images has become more accessible and in the UK it costs a substantial amount of money to take people to court over copyright infringement. This forces people to consider the value of their work and if they are able to take people to court over infringement.If the case is below £10,000, this makes it eligible for the Intellectual Property and Enterprise Court's Small Claims Track. In the UK you need to go to a separate and higher court to get more than £10,000 in damages compared to theUS were damages can go up to $150,000 in one court sitting.

Mark provides some advice for photographers on protecting images and states that basic things such as watermarking and using Metadata is critical for putting content online, but in extreme cases people would remove the watermark.

Mark said:

“It is very important to educate photographers like for example on legal and ethical copyright”.

What to do if an Infringement Happens

When a person has infringed someone’s work there are a number of different remedies in place to help the owner support their rights and stop this from happening. Below are a few different remedies available in the UK.

A Permanent Injunction prevents people or organisations from using a copyrighted piece of work. The injunction is provided by the court which can be made before or after Court proceedings. AnInjunction that is requested before the trial has happened is known as “interlocutory”or “interim” injunction which can be used to create time and prevent any other damage. The court does not have to give an injunction and can be described as a discretionary remedy as the court will only allow this when it is absolute necessary.

Damages is when the court awards the plaintiff compensation for the damage that was created by the person/organisation who were made liable.When the plaintiff is claiming, damages are calculated on the amount that it would cost to licence the rights to someone else. There are other elements that need to be taken into account which could affect the plaintiff when claiming. Questions like - were there any sales lost due to the infringement, for example Nigel may have lost sales on an image because it is no longer exclusive.

Destruction of goods is when the copyright owner of an infringement can request an order which is obtained under section114 of the CDPA for infringing goods to be forfeited or destroyed.

Mark talked about the different methods he uses in protecting his photographs. Watermarking involves publishing photos for social media and using software called Vitar which puts a watermark on the image during export. Mark does not use that often, it just depends on the clients, he believes watermarking detracts from his images.

Mark sells his photos online through software called Shoot Proof and when he uploads a photo to the site it positions his name across the photo. The third method that he uses is metadata and it can be applied by several different types of software, but Mark uses Adobe Lightroom which is a photo editing and categorisation software.

During import Mark says the software adds the metadata automatically. The metadata is digital data in the background of the image that you do not digitally see and the metadata is then encrypted into the digital file. Each image has metadata and if someone uses that image online without a watermark then the owner has copyright.

Nigel has issues when an image is used across the internet without permission, this causes damage to a photographer. If a website takes the photo without permission, it causes a copyright infringement and creates a domino effect which then becomes out of control. If the photographer wants to sell an image exclusively to a magazine for a substantial amount of money, the magazine editor could turn this down because the image is all over the internet resulting in the photographer losing out on selling images because other people have taken them and used them without paying.

Nigel had major issues between 2007 and 2010 when his copyright was infringed on many photos which were stolen and used without permission. For example, photos of Fergie or Brittney were stolen overnight. Nigel said in 2010 he met his US litigators which he described as extremely aggressive process which changed everything for him.

Nigel said: “He was able to litigate some cases repeatedly and collect a considerable amount of damages”.  Nigel believes that suing helped protect his business and ultimately, partially made up for the damage done to his business model by copyright infringement.

* To protect the identity of the subject in this article the individual has been renamed Nigel and the company he owns will remain confidential and it has been referred to as ‘photo agency’.