Rights in your photographs and that decisive royal moment

27 December 2017

Region: Headquarters

First off, I'm not sure whether her name is Karen Anvil (as per Twitter) or Karen Murdoch (probably) but what I am sure about is that her photograph of the four royals at Sandringham is as good and newsworthy an image as you'll have seen this year. Congratulations to her for her efforts in getting it ... a combination of skill at attracting attention and catching that 'decisive moment'. And taken by an 'amateur' on an iPhone! The best camera is definately the one you have with you.

As you might expect, the image is in demand, and Karen has arranged for Goff Photos to handle media queries. 

Let me use this as a starting point for some thoughts on copyright in photographs, especially in social media, licensing and infringement.

Firstly, Karen is definitely the copyright owner because she took the photograph ... and there is no need to register that copyright. The copyright is automatically created at the same time as the image itself. Under (I think) all jurisdictions now there is no requirement to register a copyright and in the UK there is no official mechanism for doing so. (The situation is different in the US where registering brings some advangages but is still not mandatory.)

You can find the basics in the Copyright Highway Code that The Society helped to draft.

The second is that photographs are specifically excluded from any fair dealing for the purpose of reporting news and current events. So any use of the image requires permission.

To complicate matters, when you upload anything to Twitter you grant them a non-exclusive licence to use it in any way and also to sub-licence that right, and I believe Facebook and other social media platforms have similar terms. (I see this as one good reason to never include high resolution images in my Twitter feed.)

In the case of this image, a UK daily newspaper's web site got in touch with the photographer and asked for a licence to include the image. Karen agreed and a fee was agreed. It was a small fee but a not uncommon one for an average photograph. Whether it was appropriate for such a newsworthy image is another question.

The photo has now also appeared on the front page of the newspaper itself and, I understand, this was not covered by the licence. I hope that an invoice will be forthcoming if that is the case because a fee agreed for online use is not one agreed for print, especially on the front page, any more than it includes television or inclusion on a postage stamp (actually I think the photograph would make a great miniature sheet). But I digress.

What to do if a photograph of yours is used without your permission is probably the most asked question I get that I can't give a totally satisfactory answer to. Telling the police is, sadly, a waste of time as the unit dealing with intellectual property (part of the City of London Police) is only interested in what they call 'organised crime'. Politely reminding the infringer that they did not have permission, and asking for a suitable fee, possibly with a lift to cover the circumstances, is probably where things should start. 

If necessary, there is a UK court set up specifically to deal with such things: the Intellectual Property Enterprise Court small claims track. This is tasked with dealing with claims of a value up to £10 thousand. Information can be found on the UK Goverment web site. The judges sitting there have specialist knowledge of copyright (I can vouch for this as one is a fellow Copyright Council member) and the majority of claims they have dealt with have been for photographs. Being a small claims court it is set up to be easy and inexpensive to use and I hope to be able to tell you more in a future post.

You can't read the judgements of this court because they don't have enough funding to write them up. The sad thing about this is that it goes against the second part of that phrase where 'justice must be seen to be done'.

Another thing is that this is a UK court and trying to take action against a foreign infringer is probably fruitless unless they have some kind of legal presence in the UK (such as a multi-national company).

Nevertheless, ignoring infringement just encourages the others and in some cases genuinely harms the livelihood of trained and skilled professionals ... one of whom may one day be you.

Jan 3rd ...

I have been pointed to an excellent case study write-up by a photographer who successfully took action through the small claims track and won serious damages for flagrant infringement.

Andy Finney is The Society's representative on the British Copyright Council and is NOT a lawyer. His twitter handle is @Delverie.