What is Infringement? How to protect yourself and your work.

Photography and the Law

Welcome to the Harrison Legal Group

While you may not yet be familiar with myself or the Harrison Legal Group, it is here that I hope to be able to provide some legal information regarding some
of the most frequently asked questions – one of which, may be yours, and maybe you found this by researching online. Cool.

Top Question Asked:

Does arguing fair use automatically kill any liability or responsibility on the infringing party?

No, that is not a direct quote but more of an amalgamation of the spirit of the question. Another way, how do we balance the potential of the internet for sale and distribution and marketing of one’s creative work… without exposing oneself to getting repeatedly ripped off without compensation or the ability to be awarded compensation if you pursued it in court.

There seems to be a dichotomy – a double edged sword – when it comes to using the internet for promotion and marketing. As technology has advanced, it has gotten harder to copyright protect work.

Allow for an example:

To many lesser known / up and coming artists, the thought of exhibiting a multi-year old work in a small gallery that exhibits a few artists per year and only a few items per each artist – doesn’t make any sense practically, monetarily, possibility, and feasibility. The old model, for just about everything, is no longer the way one breaks into a particular genre. Exhibiting your art on the Internet literally opens up a whole world of potential clients. But at what risk?

Where does one display work? Facebook? Tumblr? Pinterest? DiviantArt? Twitter? Instagram? Tik Tok?

Then the technology specific questions – Is a picture with audio – a reel, and does that matter? Is a stitch a platform for discussion or is it fair use? These questions will probably seem quaint by the time this is viewed on the web by someone wondering about some of the same issues.

An artist cannot be blamed for wanting to use the internet to promote themselves in an amazingly inexpensive way – especially for a new or up and coming artist, to 1) be able to showcase your work and 2) hopefully bring in potential business through these self-promotional efforts. However, before you run out and post your work everywhere, The Harrison Legal Group would like you to think about protecting yourself and your property, so that you do not end up falling into the group that answers affirmatively to the next question.

Of those who do display their work online – how many of you have had the pleasant experience of surfing the web and seeing your artwork somewhere without your permission? It may not happen for all artists… but the better the photo – the better the painting – the more it touches viewers… the better it is overall… the more likely it is going to be used without permission. It happens to visual artists more than any of us would like to admit. You need to be aware of this phenomenon so that you can adequately protect yourself. This was applicable before the days of AI generative artwork – the questions have only multiplied. Combine this with an overall need for legislative and judicial guidance on the subject – you often get the blind leading the blind; but not with the Harrison Legal Group.

As a point of reference – if you are asking these questions, these answers are focused more on non-commercial use of an image or piece of protected artwork by an unauthorized party as opposed to unauthorized commercial use. Unauthorized commercial use is an entirely different animal and is the stuff that you should be contacting us about immediately and not be trying to find self-help on the internet. A mentor once told me that one could probably remove their own appendix in the most dire of circumstance – but it doesn’t make it a good idea in any other circumstance. I tend to agree.

You may think you are of sound legal mind, but a lawyer that represents himself only has a fool for a client. Or said differently – He that Consults his Physician, and will not Follow his Advice, must be his Own Doctor: But let him take the Old Adage along with him. He that Teaches Himself has a Fool to his Master.

As cool as it would be – one CAN NOT declare by verbal edict that their materials on the Internet cannot be used without permission and have a reasonable expectation of protecting any value in the work. Additionally, there’s a movement towards making websites of all types (as opposed to just government websites) ADA compliant and that compliance comes into question when using certain techniques that prevent users from downloading pictures.

In some examples, it’s the taking of an image of someone else’s website (yours) and doing something with the intent to share it – posting it to their page – maybe even cropping off your watermark/signature; or sending it to grandma as a response to her daily cat email; or even just using it as a desktop background image. One might not realize that it is a copyright violation to do that even with the best of intents.

An actual response from an infringer, “Hey… I got it for free on the Internet… If they didn’t want me to have it, why would they put it out there?”

This is getting at a fair use argument. Does this justification have merit? Perhaps. That’s a simplistic look. It gets complicated. What about the budding photographer who shoots a wedding inexpensively thinking that some of the cost will be made up in print sales, and the bride and groom don’t order prints and take the web sized proof images that they feel they paid for and put them all over Facebook.

Is it appropriate to put online / social network usage as a separate line item in an invoice?

Can someone claim fair use putting a copy, maybe modified, on their own social media?

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

So what is Fair Use? The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether or not a specific use qualifies as a fair use. For example, one important factor is whether the potentially infringing use will deprive the copyright owner of income. It seems straight forward, but unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The Fair Use statute: The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society’s interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a “fair use.”

These factors are as follows:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.

So if that wasn’t confusing – imagine trying to interpret this without a sound legal mind?

If a work is freely available on the internet – making a copy will have little or no effect on its market simply because no commercial market for the work has been established or claimed… and that is not good for the photographer or artist who gets ripped off from someone using it non commercially (i.e. they are not profiting from the use). It means that as long as you were not selling the particular image copied (in the form that was copied) whoever did the copying has a pretty strong argument for a fair use defense.

Getting back to the Facebook example – if a person’s usage is only on their Facebook profile, and it’s the same web sized image that had been presented to them as a proof, it would be hard to argue that the intent was copyright protection. So how do you protect yourself from falling into the trap of a fair use argument?

The artist in all of us should cringe, but unfortunately it is necessary in today’s connected reality.

An artist NEEDS to identify their work and claim the value of it on their website. One way to identify the owner of the work is to watermark the image; and if you really want to protect yourself at the cost of devaluing the overall aesthetic of the image – the watermark should be towards the center of the image so that it cannot be cropped off. By doing this – it is painfully obvious that the work belongs to someone.

By offering licensing to use the image, or making the image for sale in the form of a print on your website, you are evidencing actual financial value to the image on the site – and to any reproduction made by the image. This will, in the least, provide you with an argument against a proposed fair use defense that an infringer may have.

Below is a list of the 2nd most popular to 10th most popular questions from our email submissions involving things we deal with at our firm every day. I will do my best to answer all of them over the next few weeks.

Questions Include:

  • Can I legally take photographs in public places?
  • What are the legal requirements for obtaining a model release?
  • Can I use photographs of copyrighted works of art in my portfolio or for commercial purposes?
  • What are my rights if my photographs are used without my permission?
  • Can I legally photograph children without parental consent?
  • Can I photograph someone in a private space, such as their home or office, without their consent?
  • Can I sell photographs of public figures without their permission?
  • What are the legal considerations when using photographs in advertising or marketing materials? Or using stock photographs?
  • Can I legally photograph police officers or other government officials in the course of their duties?

If you can’t wait, and any of these scenarios are something you find yourself in – please reach out and contact us. Contact Information – Free Consultation – Message Us buttons are everywhere. You can’t miss them.