Copyright law and the Internet

Copyright, Blogging + Social Media: Photo Usage in the Digital Age

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I’ve been working in the media for roughly 20 years. I started in newspapers while in high school, then transitioned into magazine work around 2003. My first big break on a national scale was a research project for Harper’s magazine the following year. Then, I went on to work in the offices of Newsweek, Time Inc., Wenner Media, Conde Nast, Bauer Publishing and Gannett. I took a gamble by going freelance almost 12 years ago and have written for more than 50 publications around the world, including Travel + Leisure, Conde Nast Traveler, USA Today, The Guardian, Southern Living, Real Simple, Glamour, PEOPLE, the list goes on and on. I tell you this only to state my case: I’m no newbie to the media industry, and I’ve seen it change dramatically as the web has evolved, in particular when it comes to photo usage, how people share digital content and—more specifically—how they often violate copyright law.

And yet, despite knowing my ownership rights, I’m still often the victim of copyright infringement or put in sticky situations personally regarding my work, my intellectually property.

Exhibit A: About 18 months ago, someone sent me the Instagram account of a major Caribbean destination I traveled to a few years ago. “Hey, isn’t this your picture?” she asked. Sure enough, it was. And yet, there was no mention of my name, no credit given and definitely no permission requested for photo usage. I didn’t follow the destination on social media, nor were they tagging me in the images they were posting, so I had no idea they were using my photography, as I fear happens more often than not with bloggers and others who put out original material on the Internet. Many people and businesses seem to think the Internet is a smorgasbord of visual delights that is theirs for the taking, but just because it pops up on your computer screen does not entitle you to right-click and save to desktop. I had traveled to said destination with the assistance of the tourism board, something I rarely do when not on contract, but it was not a paid project, they did not commission content from me as most DMOs do, nor was there a contract involved. They had no licensing rights to use said content I produced after the trip, nor had they ever reached out to even ask permission.

They simply stole it from my website and pawned it off as their own.

Upon further investigation, it came to my attention that they had used downloaded imagery from my site at least 18 times and used the photos for ads and marketing posts on Instagram, Facebook, Twitter and who knows where else, both without permission and not even crediting me as the photographer. Once we called them out on their blatant infringements, they offered to take down all the stolen photos, but what good would that do? Nearly two years later, these images had already served their marketing purposes. This is copyright violation, plain and simple, and SVV sent them an invoice requesting a very low sum of payment for the timeframe those photos were used to drive their marketing. We’re still waiting for that compensation nearly two years later.

Copyright law and the Internet

Oxford dictionary defines “copyright” as “the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.”

Even if you haven’t registered your original work, you still are the owner of that work. In general, registration is voluntary. According to U.S. Copyright Office: “Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.”

The city of Manchester is another prime example; they used our IP for 18 months without paying, in this case an entire website comprising material we created that has been registered with the U.S. Copyright Office. When we finally hired a copyright lawyer a year later after repeated efforts to seek out rightful compensation from the city only to be met with utter silence, they eventually took it down rather than paying for the work they commissioned, a product that could have gone on to market the city’s tourism assets in a positive light for years to come. Ironically, now this post about how Manchester, Tennessee doesn’t pay its contractors is one of the top search results on Google for the destination, and the city still doesn’t have a tourism site, just a broken URL. Eek.

But they’re hardly the only offender, sadly, just perhaps the most visible and prominent. The statutes of limitations on copyright infringement claims in Tennessee are three years, so we still have plenty of time to pursue a larger lawsuit in court. Just because an entity removes said violation does not mean it isn’t liable for damages, FYI.

If you represent the marketing or PR arm for a business, I don’t mean to scare you, but rather consider this a cautionary tale when it comes to photo usage on your client or business’ accounts. While I highly encourage you to just hire a photographer outright if your company needs visual assets—it’s the cleanest way to go about it, and a contract will give you rights to use or at least limited licensing rights for a specified period of time to use said imagery—that’s not to say you can’t ever use a photo you find online. We live in a sharing economy where many people are more than happy about likes and reposts, a form of digital currency I’m not necessarily in favor of but one that can work in your advantage. Sites like Flickr and Google Image have search functionalities where you can search for usage rights, which state whether you can or can’t use said imagery commercially. It’s pretty cut and dry, so long as you follow the rules.

Usage rights on Google Image

Photo-sharing in this day and age all boils down to, like most things, being transparent and asking permission. In case you’re still stumped as to whether or not you can use an image, I’ll simplify it for you:

Did you take the photo?

If no, then you don’t own it, nor can you use it without permission from the owner.

Did you license a photograph from a photographer (i.e. did you pay for a specified usage)?

If no, then you don’t own it.

Did you download it from the Internet, but because you gave credit, you assume it’s OK to use?

Unless you have explicit written permission from the original content creator, it is not OK for you to use it.

But what about exposure? Don’t all creatives want that?

As the famous saying goes, “exposure kills you.” It also doesn’t pay the bills, so no, creatives do not care for your exposure. Someone sharing my Instagram photo on their account does absolutely nothing for my business, so unless you are trying to appeal to a photographer’s vanity, please drop the mental pretzel of offers of exposure.

But if someone tagged me (or my business/destination) in a photo that is of me (or my business/destination), don’t I own it?

Still, no. The way to go about this would be to reach out to the photographer and ask for permission to repost with credit (it bears noting that a mention high up in the caption is common courtesy, not simply tagging the photographer). And know that you are only gaining repost privileges for that one instance, that you can’t ask to repost something on Instagram and then download it and repost to Twitter and Facebook or use it anywhere else, as well. That’s crossing a line, and you need to pay the photographer if their work product is so valuable that you want to use it across mediums.

Copyright law and the Internet

But I use a software like CrowdRiff, so we’re cool, right?

Eh, personal responsibility still comes into play here. CrowdRiff is a great service to use for DMOs and respects the copyright of the owner, and you must, as well. You still need permission from the user depending on how you’re using the photo, and if you do write your own terms and conditions, I’d definitely be mindful of how you do so, as many content creators have wisened to the ol’ rights-grab trick and will be less likely to work with you if you’re trying to pull a fast one (i.e. use the photo for whatever purpose suits you). I’ll go further into the weeds of rights grabs in a follow-up post soon.

Using CrowdRiff in tourism
Using CrowdRiff in tourism

Want an example of a DMO who does it right? Check out Visit Franklin’s Instagram. They use CrowdRiff, and when they want to repost your photo, they a) ask permission and b) don’t try to take ownership of the photo. They simply repost it unaltered with obvious credit on their Instagram feed, and it also appears in the “Trending Around Town” section of their website. Again, full transparency!

Visit Franklin and Crowd Riff

If you need to hear this from an attorney, which I most definitely am not, here’s what New York-based law firm Davis & Gilbert LLP has to say on the matter:

Companies that find photographs, images, or social media posts online and seek to use these works in advertising or another commercial context, without obtaining the copyright owner’s permission, may subject themselves to copyright infringement claims, even if they crop the works before using them. The use of pre-existing works may constitute fair use when used in connection with commentary on or criticism of the works. When a company wants to use a pre-existing work without permission, it should consult with legal counsel to help evaluate whether its contemplated use can be considered fair use.

I could go on, but you get the gist. You didn’t take the photo, you have no rights to it without a contract. Photography is a valuable commodity, and you should treat it as such. We factor in a certain amount of images in perpetuity with unlimited licenses to many of our projects, and we’ve even been on contract with a few destinations where we are building up their visual assets over a year’s time and granting them license-free usage of all high-res imagery we take. This is a much more economical way to go about building your marketing assets than paying a la carte, as a single image can run in the thousands depending on usage. Don’t believe me? I defer to Getty Image’s price calculator, which spells out what a single image for digital-only use in the tourism industry for the timeframe of one year is valued at on the open marketplace:

Getty Images pricing calculator

Marketers, let’s get something else clear: Unless you have a very explicit agreement stating as much, the original work a content creator produces is not just yours for the taking, even if you’ve hired an influencer to come and blog about your destination. You wouldn’t take a photo of a painting at the Met and try to repurpose it as your own, would you? Same goes for photography. Professional photographers cost a heck of a lot of money, particularly if you want a body of work with full rights. Enlisting the help of influencers and content creators with grade-A photo skills can be a more affordable way to get these assets while also marketing your destination to their audiences (win-win for everybody), but still: not free. I don’t care if you footed the bill to get them there; this is simply not how that works. You could find yourself in a major legal pickle by doing such.

All this to say that photographers are not evil; they’re professionals who just want to work with you on a fair contract that benefits both sides—assumedly, you get the content you want, and they get paid in a timely manner (50 percent upfront, 50 percent upon the completion of the project is considered timely).

Here’s what you as a business commissioning the work of a photographer, videographer or other creative entrepreneur should do upfront to honor the creator and also stay in compliance with copyright law:

State deliverables upfront. Most of our travel projects include a statement of work outlining content, social media and photography deliverables. This helps both sides know what is expected, and there are no surprises and little room for miscommunication when there’s a clear scope involved.

Have a discussion about marketing goals before the project begins. Is the idea for you to get more social media traction through the creator’s channels? Are you using the influencer/photographer so you have a more robust portfolio of stock imagery for your own destination’s use? Do you simply want a well-written marketing piece you can use to showcase your destination? Whatever it is, these goals are best stated upfront before the project has ever even begun so everyone is on the same page.

Issue a contract. As the contractor or the contractee, SVV and I never start a project without a contract in place, particularly after the Manchester debacle. This way, both parties know what is expected of them and can (and will) be held accountable. An email isn’t good enough; we’re talking a signed and printed contract, old school-style. Whether you’re the one hiring or the one being hired, I suggest creating a template that protects your work while also being fair to both sides. Google is your friend when coming up with your terms, but definitely consult a lawyer to review your final version.

Have an ongoing dialogue with your contractor and avoid scope creep. A couple years ago, I signed on to do a photo project with another DMO who had issued me a contract before I left, but then reached out on my last day in their destination to state that they wanted X, Y and Z kind of content instead of the beauty shots they’d seen me posting on my social media feed. This would not have been an issue had they’d told me this on day one instead of at midnight on day four; early on, I could have remedied it and changed creative direction. But I was leaving the next day, so what was I to do about it at that point? They also, suddenly, wanted more content than the contract stated, which is a classic case of scope creep and should be avoided if you want to keep a solid relationship with your contractor. To nip this in the bud, they could have reached out to me on the first day and said, “we see you’re getting a lot of X kind of shots. We’d love for you also to try and capture Y and Z so we have a well-rounded portfolio to work with.” A content creator (or influencer) is not a mind-reader; if you’re the client, we rely on you to communicate what it is you want.

If you want more than the initial contract stated, revisit the agreement. Did you hire a content creator to produce a body of work and then fall in love with the photos they produced? Awesome! That’s what every influencer wants to hear. This is when you reach out and ask the simple question: “How much would it cost to license some of your beautiful imagery for my destination?” Many will be more than obliging, particularly since you’ve already paid them and thus show that you respect their work, and likely present you with a tier of different options. I know, for us, we offer a substantial price break when it comes to photo packages for repeat clients (and often even offer a selection of images for digital use in the contract upfront) because we love working with the same company time and time again.

Copyright law and the Internet

If you’re on the content creator side, here’s how you can protect yourself when destinations want to work with you as a contractor or to license your imagery:

Copyright your product. Yes, this is a pain in the ass, and yes, it’s ridiculous you have to do so to begin with. But copyrighting your work upfront will make it much easier if anyone does try to swipe your work. The Electronic Copyright Office (eCO) of the United States Copyright Office actually makes this fairly easy to do. Go to their online portal, create a user profile and upload your photos (or other creative work) in batches. For photography, it’s $55 per batch, which can include up to 750 images. For me, I organize it by destination and/or theme; if I have a popular post or series on my blog that a lot of people are going to—such as my Nashville murals post, which has a top ranking on Google—it’s more likely that those are going to be the first photos swiped. The service is a bit clunky at first (hello, U.S. government), but after you get the hang of it, you can register a batch in under 10 minutes.

Have yourself a copyright lawyer on retainer. This is something we now do after the Manchester debacle. And yes, it’s expensive, but again, worth it in the long run. If nothing else, make sure you have a lawyer who writes you an ironclad boilerplate of a contract for when you do license your imagery out to businesses and brands. Again, transparency and preparedness will stave off a whole lot of potential headaches in the long run.

Use a service like Copytrack. Many of my photographer friends use Copytrack to find out when images have been stolen and repurposed online, and I just recently signed up myself. It’s of no cost to use, you can upload up to 1,000 images, and the German copyright company will crawl the web for duplicates of your imagery and shoot you an email with any illegal uses, as well as let you know the estimated licensing fee. You can then submit a claim, and Copytrack will take care of the licensing for you (and take 30 percent of the fee). Pretty cool, huh? This is a great way to patrol who uses your online imagery in what manner.

Copytrack copyright service

In essence, intellectual property and copyright law does not need to be so complicated, yet people make it so. Follow the golden rule that I’m pretty sure you learned in kindergarten when it comes to photo usage and don’t steal from others. Need photography for your business or destination? Great! There are, literally, thousands of skilled and professional photographers out there looking for work, many of whom likely live in your backyard and would be more than thrilled for a freelance contract with your DMO, chamber of commerce or tourism board. Do the right thing and carve out a budget for visual assets that are the public-facing persona of your brand.

Any questions on copyright infringement as it pertains to content creators?

For more related career and media musings, check out these related posts:


 

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Copyright and the Internet
Copyright and the Internet
COMMENTS
  • September 6, 2019

    Probably the BEST article on copyright I have seen. Matter of fact without being adversarial. Should be sent to PRSA and other such for publication (with payment, of course).

  • September 16, 2019
    T

    Hey Kristin, really great article, thanks for sharing it! For a new blogger like me it was very, very useful!

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