In the age of social media, a clear understanding of your rights as a photographer is crucial to receiving the credit you deserve. But with so much information out there, you might find yourself asking:
Here you will find an overview of what copyright law is and how it impacts your photography business. We’ll also take a look at the downloadable copyright resources and copyright infringement tools available to PPA members.
Copyright law in the United States prohibits the unauthorized copying of a “work of authorship.” In 1988, the following amendment was added to address visual works including photography:
“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
Phew. That’s a mouthful of legalese! So what does it mean in English? Basically, copyright law says that when you take a photograph, you become the copyright owner of the image created. This means you hold exclusive rights to:
Seems straight forward, no? But what’s considered a “derivative?”
A “new version” of a work that is already copyrighted falls under the term of a “derivative” work. Special re-edits of movies, art reproductions, and literary translations all qualify as derivative. A film based on a book or play is another common example.
In the realm of photography, any time someone creates a photograph that is a copy or “substantially similar” to another copyrighted work, they are potentially infringing upon the original owner’s rights.
By comparing and evaluating a derivative work to the original, a court of law can determine if any copyright laws have been violated. In other words, a photographer who went great lengths to recreate an original work’s composition, lighting, and other creative elements would be more likely to be found guilty of copyright infringement than a photographer who simply takes pictures of subjects that already exist in other photos (i.e., monuments, nature). This means many different photographers can take photos of, say, the Golden Gate Bridge without infringing on each other’s artistic rights.
If you suspect your image has been used without your permission, use PPA’s copyright infringement tool to help you determine your next steps.
In addition to looking out for your own rights, you as a photographer need to be aware of ways you may unknowingly infringe upon another artist's rights. The last thing you want to do is misuse another creative’s work!
Take for example Mercedes Benz's 2018 ad campaign featuring the company’s new vehicle “barreling through Detroit’s boho Eastern Market district past commercial buildings painted with vibrant murals.”
Cool concept, no doubt. But the artists who created those murals that contributed so much color and atmosphere to the campaign were never asked permission to use their work, let alone credited:
“While Mercedes sought municipal permission to make beauty shots of its vehicles on public city streets, it did not seek the muralists’ permission to make and post images of their works on Instagram. Copyright infringement? Mercedes thought not. The muralists—James Lewis, Jeff Soto, Maxx Gramajo, and Daniel Bombardier—thought otherwise.”
Read the full story at PPmag.com. The Mercedes Benz ad campaign is important for two reasons:
The exception to copyright law is when the reproduction of a photograph or visual work is deemed “fair use.” The next section digs deeper into this term.
Fair use is an exception when it comes to copyright law. Journalism, critiques, research, and teaching materials are examples of specific types of writing that allow the reproduction of copyright-protected works without the permission of the “author”.
For example, if you exhibit your photography in a gallery, an art publication generally does not need permission to reproduce your image if they’re using it as part of a critique. Or, conversely, a newspaper may publish photographs of works and use them as part of an article. Both of these are examples of a copyrighted work being used under “fair use” guidelines.
When considering whether a reproduction of a work is fair use, the U.S. Copyright Act says “the factors to be consider shall include whether:
One important thing to keep in mind is that social media marketing’s use of images very rarely falls under “fair use.” If you’re photographic work is being used without your permission, check out the resources from PPA below for help determining if you need to take further action.
Remember: If a company uses one of your images in their marketing—on social media or otherwise—without your approval, they are violating your rights as a creator. So, what do you do if you suspect your work of being used without your permission? PPA has resources to help you understand copyright law, and even a Copyright Infringement Tool to leave no question in your mind whether or not your rights as a creator have been violated.
Protecting your work is vital to your success as a photographer. For more PPA resources, click here.