We are so so pleased to have photography law and business guru, Rachel Brenke as a guest blogger. Her knowledge is so very valuable and we are grateful to have her sharing her insights on how to run a safe business and how to protect the art you create.
Law 101: Protecting Your Art
Rachel Brenke, Esq
With the onslaught of social media and digital files/products comes the true reality that ethics and law are not always followed. In fact, while ignorance is no excuse, often the masses are misinformed as to what is allowed in the digital age. The most prominent issues photographers face include the illegal downloading (or screen capture) of unpurchased photographs for print, sharing of digital items, stealing of photographs to pad portfolio and posting of another’s work as an example to clients.
What if I want to share someone else’s picture for inspiration?
There has been a recent trend where photographers have taken to sharing photographs of photographers that inspire them to demonstrate to the clients their vision for an upcoming session. This has been done through sharing on social media sites including pinning on Pinterest. There is a grey area of danger in this sharing as it is misleading to the client, often done without permission of photographer, and many times the proper credit is not attributed. When in doubt, don’t share it. When in doubt, don’t pin it.
All photographers should look to others that provide inspiration, but if you’d like to collect an inspiration board of other photographers ensure it is specifically labeled as separate from your own work and/or create another profile.
What can I do to protect myself?
Stealing is such a nasty word but that is what it is. Whenever clients download files from the website without permission it is stealing. Whenever a photographer claims another’s work as their own it is stealing. There are a few different ways to protect yourself. Sometimes it is simply a grey area of sharing a photograph, even with appropriate credit, or another photographer using the same business name or tag line. There are several options for protecting yourself and your business.
One option is that of a trademark or copyright. Trademarking is the act of identifying and distinguishing the source of goods of one party from that of another (i.e. words, phrases, designs, symbols, etc.). Copyright is the protection an artist has over “original works of authorship”. Both of these are tools to protect yourself, however, must be distinguished to understand whether you are protected or need to take action. Ownership of copyright for a photograph is created at the time the photograph is created. Trademarking is not acquired until submitted formally through the United States Patent and Trademark Office. Link to Trademark Office: http://www.uspto.gov/
Copyright is typically done for photographs (although no formal process required) while trademarking is typically done to reserve your company name, logo, catch phrase or slogan.
The second option is to embed copyright in your photograph/product. This can be done in the processing program of choice. The following pictures are how to embed copyright/ownership information into the photograph. This will sometimes work to prevent labs from printing these files outside the guidelines embedded in the photograph’s data.
#1 Open Picture
#2 File > File Info
#3 Enter Info
#4 Click OK
The third option is to watermark your photographs. Simply placing a watermark on the photograph may deter some individuals. This option, by itself, does not fully protect you nor keep others from stealing. Just as social media is in every house, editing programs are increasingly common, making the tools to remove a watermark readily accessible.
The fourth option is to include your information and copyright information on picture captions whenever uploaded to the Internet. This, again, isn’t full protection but may deter or remind individuals of the copyright laws.
The final option, which is primarily for clients, is to provide a Copyright Informational Card with their order as a gentle reminder of copyright laws and your reproduction guidelines.
What if they continue to violate my copyright?
The most simple answer, ask them to stop. Many times clients are unaware their actions violate your policies and copyright, despite being outlined in the signed photography agreement. Citing the appropriate copyright law and policies in a politely written communication will often encourage someone to cease their actions, especially if they were “unaware” that what they are doing is wrong. If this communication fails to achieve this a formal writing of a Cease and Desist letter may be required. These can be written informally by simply citing the actions, citing the appropriate copyright laws, demanding they quit these actions, providing consequences for failure to comply, and institute a deadline. An alternative is to utilize an attorney drafted Cease and Desist form and/or hire an attorney.
Cease and Desist
No matter the method of protection you choose, be true to yourself and your business. Inform others, inform yourself. This does you, others and the photography industry a great service.
Rachel Brenke is a photographer, lawyer, business consultant and social media marketing strategist based out of El Paso, Texas. She has helped over a thousand photographers start up, market and maintain their businesses through online eWorkshops, 1:1 consulting and the free resources on her blog. She also has contracts for photographers that were designed for photographers by a photographer and attorney!
Snag your free copy her free Legal Lens eBook by Rachel Brenke.
Note: These legal tips are based on United States legal principles. Please seek out advice for your country.