Giving Up Control of Your Images

By Scott Bourne

NOTE: This will be cross – posted at Photofocus.com

Do you actually read the Terms of Service Agreements and EULAs that you sign or click “OK” on? I bet you don’t – but you should. Especially if you are a photographer who worries about people taking your images and profiting by them without your permission or without sharing those profits with you.

By posting images to some of the “sharing” sites —– you’re sharing all right —– you’re sharing a free license that allows most of these sites to profit from your work in return for hosting the images. That’s a pretty bad deal in my opinion, considering the fact that you can also build a blog for free that would allow you to avoid giving up control.

Sites like Facebook for instance are particularly tricky. I got quite a response when I posted the following Tweet two days ago…

“You realize you’re granting worldwide, transferable, sub-licensable, royalty-free license to Facebook by posting images there?”

I was merely trying to make people aware of FB’s general approach. I am not saying that they do anything evil with your photos. I am saying they COULD if they want to, and that alone makes me run for the hills. To some people, i.e., those who have zero commercial aspirations and who couldn’t care less if someone else profits from their photos, this is no big deal. To those folks I say great. You need not worry about this. If you’re in the category of photographers who just shoots for fun, doesn’t plan to sell your images, doesn’t care if someone else does, doesn’t care if you get left out of the loop when it comes time to get a check, then you should ignore this post. It’s not relevant to you. There’s no problem posting your images anywhere and everywhere.

But if you hope to go pro some day. . . or you are a pro. . . or if you just feel like it’s not fair that someone else should be able to financially profit from your hard work, pay attention. Start reading the fine print. At least you then know what you’re getting yourself into.

People responded to that tweet with everything from outrage to fanboyism. But the important responses were questions like: “Where should we put our images?”

The safest answer is on your own website or blog. Then you set your own Terms of Service. My TOS is simple – I never steal from myself!

If you use your own site, you never have to worry about a third party’s privacy or intellectual property policy changing.

Here is a link to Facebook’s TOS. Paragraph two contains the language above. It also contains the following sentence regarding your photos:

“…you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).”

I have no problem with this. I simply don’t post anything to Facebook. They are free to engage in any business model they like and as photographers, we are free to post there or not. This post isn’t intended to talk you out of using Facebook. It’s intended to let you know what you are agreeing to in case you are like 99% of the folks who don’t read the fine print.

Some of the responses I saw on Twitter incorrectly assumed that this is simply going to be the case no matter where you post your photos. They assume you’ll have to give up a license for others to profit from your work no matter what. That’s not true. I haven’t read every single TOS out there. But I have read the Pictage TOS, SmugMug TOS and the PhotoShelter TOS and I am very comfortable posting my images on those sites. They don’t have provisions in their TOS (as of the date of this writing) that cause you to license the images in such a potentially aggressive manner.

I am not a licensed attorney and you should certainly consult with one before making any legal decisions. I can’t tell you what every single photo sharing/hosting site’s TOS might say – nor can I tell you which nuances such as linking or posting make a difference. I did consult my attorney before writing this post and came to the conclusion that as a working professional, I shouldn’t post images on Facebook. (I deleted my FB account last month but had never posted any photos there anyway.) My conclusion was that it was okay to post on Pictage, SmugMug and/or PhotoShelter. You have to decide for yourself how you want to handle this. But at least do one thing – read the Terms of Service before you click to accept. Sometimes the thing you’re getting in return for posting is worth it and sometimes it’s not. Only you can make that decision. My goal here is to make sure you are informed. I have no dog in this hunt. Whatever you decide is right for you is fine by me. I just want to make sure that you go into it with your eyes open. Good luck to us all!

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This post sponsored by X-Rite Color and the ColorChecker Passport

What You Don't Know About Creative Commons Could Kill You

By Scott Bourne

Okay, CC will not literally kill you, but it COULD kill your right to protect your photography from unauthorized use.

NOTE: This post is written for a US audience. Non-USA residents should consult your local laws to see how much if any of this applies to them. Also note nothing in this post is intended to be construed as legal advice. If you have legal questions, consult an attorney. This post is merely the author’s opinion.

The Internet is home to both amazingly valuable information and the world’s largest collection of bull crap the world has ever known. When it comes to Creative Commons licenses for photographers, it’s the bull crap contingent that wins out most of the time.

I am shocked by how very little photographers understand about Copyright issues. I’m even more shocked at the mis-information, dis-information, fact-less assertions and downright deliberately misleading data provided to and by photographers when it comes to Creative Commons licenses.

Based on e-mail, Twitter comments, Facebook comments and Flickr comments, I think I am very safe in saying that most photographers, if not the vast majority of them, have no real clue what Creative Commons is all about. They THINK they know something about it – but usually, all they really know is that all the cool kids are doing it so they should too.

Here are some things you may not know about CC but should.

1. Creative Commons is merely a license. It is NOT a substitute for registering your work with the Library of Congress. It’s not an either or thing. If you offer a Creative Commons license and someone infringes against that license, if you want compensation – your only real remedy is to enforce that license by virtue of a suit in U.S. District Court for violation of Title 17 of the U.S. Code. To do that, you essentially need to register your images with the Library of Congress. To those who tell me they don’t need to register their work because it’s PROTECTED under Creative Commons I say this. Bullpucky! Your work is no more protected than you would be if you stood out in the middle of a busy Los Angeles freeway at Midnight wearing all black clothing.

2. Creative Commons has very little track record. Using Lexis Nexis (http://www.lexisnexis.com/) I could only find three cases where CC was ruled upon in courts. In one case made famous by Adam Curry, CC was upheld, but Curry recovered no money. In a second case about computer software, the judge in that case said point blank that regardless of the viability of a CC NC license, the remedy for violation of Copyright was Title 17. In a case involving Virgin Mobile, the CC license was not upheld.

3. Creative Commons licenses aren’t well understood by the public. This means that CC license terms will be more likely to be ignored. If photographers don’t understand CC, what makes you think end users will?

4. There’s no broad, independent study that shows using CC licenses increases exposure or income for photographers. In my own personal tests with CC, I can’t see any appreciable difference in results versus posting my images as Copyrighted, All Rights Reserved.

5. The NC CC license is very limiting. It may make your photos incompatible with some free content. It may rule out some basic uses you actually don’t care about. And use of a CC license is a death blow to any image that you later want to license exclusively. Once it’s been CCd, it can’t be offered for exclusive license.

6. The NC CC license is very confusing. Flickr and the Creative Commons organization can’t even agree on the same implantation of CC. And what constitutes commercial use? Suppose you put a CC NC license on your photo and someone uses it on his blog. His blog has a few links to an optional for profit newsletter. One could argue that those ventures advanced with the help of the photo, but one might also argue that these were non-commercial uses.

7. The use of CC leads to a false sense of security. Because most photographers really have no idea what this all means, they throw a CC license up on their images and forget about it, thinking they are covered.

8. If sharing is really what you want to do, there are ways to do it outside the CC realm. You can still opt to grant certain licenses to your images without branding them Creative Commons. Every week, I grant some church organization, Boy Scout Troop or other well-meaning, non-profit a license to use my images non-commercially. I simply use a license my attorney drafted that protects me without using CC. If you want information on licensing that doesn’t rely on CC, visit the excellent online ASMP Licensing Guide.

Remember that few courts have upheld CC. In some states, state law may make it completely incompatible with existing IP laws rendering it totally useless. Federal courts have also delivered mixed results. Conversely, US Copyright laws are well established, have survived many tests, and in my personal experience, are pretty much rock solid if you simply register your work.

If you want to use CC licenses be my guest. I actually think the people behind CC had good intentions. I also think they are a bit dogmatic in their approach. But overall, I am not saying that CC is evil. I am saying you should know what the consequences are if you select that route. At least take the time to learn what it’s all about. Understand that whether you do or do not use a CC license, registering your photos with the Library of Congress is the surest, safest way to protect yourself. Again, ASMP has some of the best resources I’ve ever seen if you want to learn more about Copyright.

Photographers like me who make their living with a camera depend on Copyright protection to do their job. If you don’t have any interest in selling your photos; will never have any such interest, and don’t care who uses or downloads your images, it’s unlikely that you’d be reading a blog about becoming a professional photographer and you should ignore all this. But if you plan to go pro, understand and protect your rights.

If you’re not sure how to proceed, hire an attorney with intellectual property experience and at least pay for a consult. It’s time that photographers actually knew what they were talking about when it comes to Creative Commons.

EDITOR’S NOTE: This post isn’t an invitation to discuss the viability of our current Copyright laws. That debate is best had somewhere else. If you want to comment on Creative Commons, feel free. We won’t let comments through that go off-topic and are simple rants against Copyright laws. If I’ve made any factual mistakes in this post and you can cite a reliable, third-party source as evidence, please let me know and I’ll consider making necessary changes.

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This post sponsored by WHCC – White House Custom Colour – Get Five Free 8×10 Prints From WHCC

Registering Your Photographs With the Library of Congress

By Scott Bourne

By Scott Bourne

Disclaimer: I am not a practicing attorney. I advise anyone reading this who needs legal advice to seek out and hire an attorney. I am detailing exactly how I register my Copyrights and summarizing conversations I’ve had with my attorneys, and the advice they’ve given to me. Use this information at your own risk. Your situation may differ from mine. When in doubt, seek legal counsel.

Additionally, this post is written from the point of view of a US citizen applying US law. If you reside outside of the US, there are likely to be different laws governing your ownership of creative works, although many foreign countries are signatories to the US Copyright Act.

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Registering your copyrights is the single most important thing you can do to protect your rights as a photographer.

You’ve heard it a million times. A photo is “copyrighted” when you press the shutter button. According to my attorney and other attorneys I have interviewed, this is absolutely true. Unfortunately, this doesn’t offer you much real world protection.

Title 17 of the United States Code (http://www.copyright.gov/title17/) covers US Copyrights. You should be familiar with this code since it governs your rights and responsibilities as a Copyright holder.

According to several attorneys that I interviewed for this piece;

When you own a copyright, you get:
To reproduce the copyrighted work;
To display the copyrighted work publicly;
To prepare derivative works based on the copyrighted work; and
To distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

When someone uses one of your photographs without your written permission, they may be found liable for Copyright infringement. This means you may be able to collect money from them to compensate for the improper use.

There are limitations to Copyright and the one you will hear most often is “fair use.” If someone uses your images without your permission and claims fair use, be sure to consult an attorney. That defense may or may not hold up in court, and only an attorney can tell you how likely you are to succeed at trumping such a defense. I can tell you it’s overused and in my case, it’s never stood up as a defense.

In order to convince an attorney to help you sue to protect your rights, you will either need to pay them traditionally high fees, or provide them with evidence of a Copyright Registration. It is this all-important registration that gives Title 17 its teeth, and allows lawyers to go get money damages for you. Once an attorney knows you have registered your images, they will consider taking your case on a contingency basis, meaning they get paid a percentage of your damage award.

That’s why I strongly urge photographers to register their Copyrights.

My attorneys says that registration offers several benefits:

It establishes a public record of the copyright;
It provides evidence of copyright ownership if registered within five years of publication;
It provides for statutory damages and attorney’s fees if registered before infringement or within 3 months of publication; and
It helps prevents the importation of infringing copies.

While it may be intimidating to some photographers, the registration process is actually quite easy. Do note that everything you put on the registration form is public record.

The US Copyright Office is now urging photographers (and other visual artists) to use an online form called Form CO. It’s part of the eCO Online System that’s designed to speed up the registration process. http://www.copyright.gov/eco/. You can download a eCO tutorial in the form of a PDF here – http://www.copyright.gov/eco/eco-tutorial.pdf.

The main reason I use Form CO online is that it is less expensive. It costs $50 to register your works with form CO (the paper form) while it’s only $35 for the online registration. There are other reasons to use form eCO. It offers online status tracking, the fastest processing time and the ability to upload certain categories of deposits (pictures) into eCO as electronic files. No more sending in CDs full of pictures!

You can upload just about any photographic format including JPG, GIF, TIFF, PNG and more.

Eventually, all submissions will be online. Going 100% online is easier and cheaper.

When you register your Copyright, you must do so in one of two categories. Published or Unpublished.

If you’ve sold your images, or if they have appeared in a publication or if you distribute copies of your work to the public by sale, lending, or leasing, your work may be considered published. Publication also includes the offering to distribute copies of your work to others for the purpose of further distribution. Some attorneys say that putting your images up on a web site for sale constitutes “publishing” your images. Since you might not get all the protection you need if you register published images as non-published, it may be prudent to register any image(s) you’re not sure about as published.

To make the registration process easier, your images may be registered as a collection or group with one application form and one fee. The images must be combined in an orderly format; the collection must have a single title; and the items in the collection must have the same copyright ownership. The fee to register one image or 750 mages is the same, so there’s no reason not to save money.

To register a published collection, you must meet additional requirements. These are:

The photographs were made by the same photographer (or employer in a work-for-hire situation);
The photographs were published in the same calendar year; and
The photographs have the same copyright claimant.

You can do group registrations of up to 750 images using form GR/PPh/CON – available from the U.S. Copyright Office.

There’s no excuse not to register your Copyright, especially if you hope to make money from your photographic endeavors. Without registration, you won’t have near the protection you would have with it.

I do want to mention Creative Commons. Many photographers have considered using CC to protect their work. I do want to caution you that Creative Commons is little more than a theory or a movement at this point. It’s a license – nothing more. If violated, you still need to rely on Copyright registration to collect damages. I am unaware of any jurisdiction in the USA that has codified it. And despite challenges to my attorney friends who want to pursue CC, they can’t cite any US cases where CC has been used to win money damages for a photographer who has been infringed. If you can cite cases or statutes that contradict this, please email them to me and if persuasive, I’ll adjust my article accordingly.

Please remember this information isn’t intended to spark a debate over whether US Copyright law is a good or bad thing. Or whether Copyright law needs to be changed. This information is designed to make people aware of the statutory protections of US Copyright law and to motivate them to pursue protection under those statutes.