This page addresses many common inquiries regarding copyright of photographs, licensing and using photographs, and photographers legal access rights and responsibilities. Although EPUK has taken care to provide an accurate layman’s overview you must not rely on it as a substitute for professional legal advice.
If you have a question that is of broad interest but is not answered here, please contact EPUK and we will consider adding it to this FAQ.
What is copyright?
Copyright law restricts the legal right to copy photographs to those who have permission. Permission can only be granted by the copyright holder or their agent.
‘Copy’ in this context includes making prints, publishing or distributing photographs in any medium, or making copies of files and distributing them electronically. It includes plagiarism, the taking of a photograph based on another. If the copy resembles the original image closely enough to be recognisable as a copy of the original, copyright has been infringed.
Thanks to international agreements, copyright law is broadly similar in most countries of the world.
Who owns copyright?
The author of a photograph automatically owns copyright unless they have created the photo in the course of their employment, in which case the employer owns copyright. In either case copyright can be assigned to someone else by agreement, but the assignment must be in writing.
How do I copyright my work?
Copyright is automatically conferred by making the photograph so there is nothing to do. This is the standard position in most countries of the world that are signatories to the Berne Convention.
Some countries operate copyright registries where you may additionally record your ownership of copyright with the benefit of additional legal protection. EG registration with the US Copyright Office allows much higher punitive damages to be sought from infringers.
The UK does not currently operate a registry. Although at least one domain pretends to resemble a registry by accepting a file copy, it has no official status and dubious legal value.
A global image registry is under development as the Plus registry. Please search this site for further details.
What about watermarks?
Watermarking can be of two types, visible or invisible. Neither are immune to deliberate removal or corruption, however the attempt to destroy watermarks is potentially a criminal offence, and may also increase civil damages award on the grounds of flagrancy.
Visible watermarking – where you emblazon '© John Doe 2008' across the image – has the obvious problem that it spoils the picture. Watermarks like this also are usually quite easy to edit out unless large and intrusive and placed across the most important parts of the photo. They are however a clear and simple warning, and worth thinking about especially when posting to social media sites.
Invisible watermarking uses steganographic techniques to invisibly embed a hidden, registered creator's code in the image itself. This technology is offered commercially (and at quite high prices) by Signum and Digimarc, among others. The theory is that their hidden code can survive multiple Photoshop procedures or even printing on a commercial press, so images can always be traced back to the rights owner. In practice there are methods for attempting to corrupt the code, and questions about how robust such watermarking really is. It also degrades image quality to an extent that some find unacceptable.
How do I stop people copying images from my website?
The short answer is that you cannot. The only certain means of making sure your work cannot be copied is to keep it off the public web, and never allow any copies into the hands of someone who might publish anywhere. Anything that gets printed is quite likely to end up on the internet.
Some people advocate technical tricks such as slicing your image into lots of small pieces and having the browser reassemble the parts for display. This certainly makes 'saving' from a browser hard work, as there are many parts that need to be saved. But a simple screen grab defeats all that completely.
The same applies to web authoring techniques that place the image in the background of a table or layer, and also disabling the right mouse button ability to save a file. The latter is especially annoying to Windows users who will find all their other right button options inaccessible too. Neither method will deter any but a casual user who isn't trying very hard.
Likewise, embedding your photos in Flash presentations or Acrobat PDFs offer little protection. Tools to capture and extract from these documents are freely available on the web.
And anyway, if it can be seen it can be screen captured. Visible watermarks are currently probably the most effective deterrent, if you find their appearance acceptable.
Does copyright apply on the web?
Yes, absolutely. The web is no different from any other publishing medium.
Virtually anything you can see will have been created by someone and they will automatically own the copyright. They do not need to make a copyright statement, copyright is implicit. So you should start from the assumption that everything is copyright unless and until you can establish otherwise.
What happens if I use an image that is copyright?
Using an image that is copyright requires permission of the copyright holder. If you do not obtain permission, your use constitutes an infringement. The copyright holder can then sue you for damages.
Can I use copyright images without permission?
In general no. But there are some ‘fair dealing’ exceptions. For instance you may reproduce a copyright image for the purposes of criticism or review. And you can make personal copies for the purpose of study and instruction.
Do I need a ‘copyright statement’?
No statement of copyright ownership is required by law, and its absence does not weaken the protection of copyright. But it is still a good idea to include one in order to counter someone arguing that they were unable to find out the copyright status of the work or whom to ask about permission. Images whose rights status and ownership cannot be determined are called 'orphan works'. The copyright statement should appear on the same page as the image on the web, on the back of prints, and also in the metadata of all image files uploaded or emailed anywhere. The internationally recognised format for a copyright statement is ©[name] [year of first publication].
What is metadata?
Metadata is textual information embedded in an image file. Not all image file formats are capable of holding metadata, but JPEG, TIFF, PSD and most digital camera RAW formats support it.
Metadata text is only viewable in programs that are capable of displaying it. Photoshop and most advanced image editing and management tools have the capability.
There are two common formats for metadata, EXIF and IPTC. EXIF is most widely used for recording information at the time of exposure. IPTC information is added later.
IPTC information is the standard location for the copyright statement, along with contact details and other information relevant to the image. Neglecting to embed a copyright statement in a file can lead to it becoming untraceable and an 'orphan work'.
Deliberately altering copyright metadata is an offence under UK and US law.
What is a copyright statement?
In UK law and most other countries, a copyright statement is not formally required, but if you use one (and you should) a valid copyright statement comprises 3 essential elements
- © – the international copyright symbol
- Your name – the copyright holder's name
- Year – the date of first publication
So © John Doe 2008 is correct. You may add other information as well, such as 'All Rights Reserved', a telephone number, address, website address and so on. EG © John Doe 2008 All Rights Reserved – www.johndoephotos.co.uk.
Do people need to ask to use my work?
In general, yes, they must, and if they use your copyright work without your agreement they commit an unlawful act.
There are a few exceptions:-
- If you have previously assigned copyright to someone else you have surrendered all ownership and negotiating rights. The copyright holder must grant permission.
- Certain types of usage are regarded as 'fair dealing' and are allowed by copyright law. It is still polite for the user to ask, but they are entitled to use the work so long as it really does fulfil the criteria. Infringers frequently excuse themselves on the grounds of fair dealing meaning not-for-profit, or that any image found on the web is eligible, or similar misunderstanding of the law.
- If you have previously released the image under license, usage within the terms of the licence does not require permission. Uses outside the scope of the license are still protected by copyright law and require your agreement. For this reason do not grant licenses that allow wider usage than necessary.
How do I give permission?
There are three different methods and it is essential to use the correct and appropriate method in order to avoid unintended consequences.
Permission is a simple, informal agreement that the other party may make use of your work. Really, this means just saying 'yes' to their proposed use. You would be wise to specify exactly where and for how long and in what context they may use it, but if you ask for payment or a byline in return you are creating a license instead. Informal permission stops short of forming an enforceable contract, so you have no real redress against misuse except copyright law, but conversely the other party can impose no conditions or penalties. Permission is really only appropriate for non-business use by friends and family.
A license is the usual form of agreement, and comprises a legally enforceable contract. A contract is an exchange of value between two parties, and imposes terms and conditions on both which specify the nature of the contract. It is essential that you read the terms offered by the other party and are careful about specifying your own. The small print of commercial publishers, organisations inviting reader submissions and competition rules must be read carefully as they often include copyright grabs and impose serious legal liabilities. Licenses are subject to contract law, and damages my be sought by either side for failure to complete the contract.
Assignment of copyright permanently and irrevocably surrenders all copyright and transfers it to another party. Assignments must be in writing, but are sometimes buried in contract terms and conditions or simple forms, so be very careful. Once you have assigned copyright you cannot use the photo you made without permission of the new copyright holder.
What is a license?
A license is a contractual agreement that permits usage of copyright work in exchange for something. This can be payment of a fee, but may be anything of 'valuable consideration'. A byline or link to your site, or entry into a competition may be offered, and that is enough to form a legal contract if you accept it.
License contracts may be terribly simple, but with copyright they are often made very complex by one or both parties stipulating terms and conditions that define what will be agreed.
Never agree to contract terms unless you understand and are able and willing to honour them. A license is a legally binding document.
How do I deal with infringements?
The first thing to do is to get evidence of the infringement. If your work has been used without permission, get a copy of the publication. If the infringement is on the web, print out the pages that display your image along with enough information to positively identify the site and date. The next thing to do is to identify the infringer. You are then in a position to contact them and take the matter further. How you do all this and what outcome you may be able to achieve will likely depend on the extent and context of their infringement. Many factors may apply. Are they passing your work off as their own, or is it credited to you? Is the metadata intact or has it been altered? Is their usage personal or commercial? Whereabouts are they located?
Broadly your choices are:
- You can insist that they remove the image immediately.
- You can offer to supply a retrospective licence on payment of a fee, to legitimise the infringing use. Plus a further fee for agreed future use, if appropriate.
- You can commence legal proceedings against them for infringement of your copyright.
- You can forget it and give up
What is a copyright grab?
A 'copyright grab' is a contract term that acquires an assignment of copyright or a license of such wide scope that it removes most or all control of the image from the copyright holder.
Copyright grabs have become extremely widespread in recent years, and their usage by unscrupulous clients is so commonplace that you must carefully read the terms of any license proposed. They are often masked by reassuring statements that you retain copyright, but then go on to propose 'a perpetual, irrevocable, fully paid, royalty free, sub-licensable right to use, adapt and incorporate into derivative works the image for any purpose in any media including those yet to be invented, in all territories across the universe' or something similar.
Basically this means they can do absolutely anything they like with your photo, forever, and you have no further say in the matter whatsoever. And they get to keep all the income they generate too. There is absolutely no sensible reason why anyone should ever agree to such terms. And if you do, you will almost always find an accompanying clause that places unlimited legal liability for costs onto you should their usage hit legal problems.
You might expect to be very handsomely paid in return for agreeing such generous terms, but copyright grabs often turn up in photographic competition rules and the small print of websites that invite users to send in material in return for nothing more than a byline. They are also a frequent addition to the terms of commission of newspapers, magazines and other clients, with little or no extra payment offered above that which they previously paid for First British Rights. All professional photographer organisations strongly oppose such exploitative terms.
How do I find out who owns copyright?
Identifying the copyright holder may be straightforward or require some detective work. Take special care if you have found an image that you are interested in via a search engine such as Google Images. They only cache a copy and the thumbnail page does not display any copyright warning. You must go to the original site to see the image in its original context along with any ownership details. Many people have incurred large bills by assuming Google Image thumbnails may be freely used.
Work displayed on most websites will be associated with a user or domain owner who may be approached. Image files themselves will often contain metadata identifying the rights owner and giving contact details, but unfortunately browsers do not support display of this information. There is however an extension for Firefox called EXIFviewer which will display IPTC and EXIF metadata.
If you cannot find the rights owner it is only safe to assume that although the photo is an 'orphan work' it is still someone's copyright and is unsafe to use. Copyright persists for 70 years after the death of the photographer so some very old photos may be OK, but beware that some agencies regard scans as new work so within copyright even though the originals have lapsed.
Note that the copyright holder will seldom be the publisher, who may be using the image under license. Equally, sometimes the credited author will not the copyright owner because they have assigned copyright to someone else but retained their moral right to be identified as the author.
How long does copyright last?
Copyright expires 70 years after the death of the author. At that time the work becomes public domain and available to anyone to use without permission or payment.
However, even if a photo is sufficiently old for for the original copyright to have lapsed, agencies that have gone to the trouble of scanning old work often assert that the electronic version is a new work and that they own copyright. So the age of the photo is not a reliable indication of copyright status.
Why does copyright exist?
The original intention of copyright was to provide a means to ensure the public had a copious supply of 'good books' to read, and this principle has been extended to other forms of creative work such as paintings, music, designs of buildings and photographs.
The early proponents of copyright took the view that it was not sensible to rely on wealthy individuals to find the time and generosity to do creative work and donate it to the public. Doing so limited the character, quality and quantity of work created, and there needed to be another mechanism capable of supporting the creative work of 'ordinary men'. The choice was between patronage (which we would nowadays recognise as employment) whereby the patron would acquire ownership in return for sustaining the work of the author, and copyright, which created proprietorial rights for the author so that an income could be realised from the work itself.
This principle has remained unchanged, although the world has certainly altered a great deal. Copyright is now widely perceived as a tool of monopoly and price control in the hands of large corporations, but for individual creators there remains no alternative mechanism of fair reward.
Why should I keep copyright?
Your photographs are your work and they are your asset. If you work as a professional photographer they are your only asset. Copyright is your title to that asset.
Make no mistake, the reason others want your work is so that it benefits them. For non-commercial use this may be acceptable, you may choose to donate your work to support charities or other causes you approve of. But it is difficult to imagine why anyone would give away their work to commercial entities whose only real interest is using your work to make money for themselves. If you license your work for a fair fee, it benefits you as well. But if you assign copyright or give a free license, you must be one of those rare people who hand out wads of money in the street to strangers who are sometimes better off than you are. Who, by the way, would not think about supplying you with free goods and services just for a credit.
If you really have no interest in money and think charging for use of your work is somehow vulgar or distasteful, ask for it anyway and then donate to your favourite charity.
Please remember that even if you do not care about copyright, others do. If you allow free use of your work it undermines every other photographer who wants or needs to retain their rights. It sends a message to clients that photographs are valueless and photographers are gullible. The law reforms that gave authors control of their own work were hard won, and are an ongoing battle to maintain; commercial publishers would like nothing better than to be able to use photographs without payment or permission, as their constant lobbying for free use of ‘orphan works’ demonstrates. Moreover they commonly disregard assertions of the moral right to be identified as the author.
Another major issue is that of control of how the image may be used. If you do not restrict use, you have little practical influence on whether your work may be used in ways you consider objectionable.
Finally, also bear in mind that photographs can change in significance and value unpredictably with the passing years. What may seem of little interest today may be special and far from commonplace someday. Whose photographs are they anyway? Yours, so keep it that way.
What is ‘fair use’?
Copyright law permits some uses without the need to ask permission of the copyright holder, and these specific instances are called 'fair dealing' or (in the USA and Europe) 'fair use'.
Fair dealing use of photographs comprises a limited set of conditions that UK law deems not to harm the normal exploitation of the workby the copyright owner:
- Personal copying for the purpose of personal study or research. This means it is OK to copy a photograph or a published photograph provided it is one copy made for the personal use of the person making the copy. Multiple copying, such as that a teacher might do for an entire class, is outside the scope of fair dealing, however recent changes to UK law now permit copying to online learning environments and courses. NB: US law differs significantly here, as virtually any educational use within schools or colleges is treated as fair use. US educational establishments will often be completely unapologetic about use of photos even in their marketing material, and even where UK photographers are concerned.
- Copying for the purpose of criticism or review is allowed only if there is proper attribution. This allows for example, book reviews, or for someone to talk about your work on a web page. This fair use is widely misrepresented or misunderstood by webmasters, who seem to believe it means any attributed use is allowed. They are wrong : criticism or review is the key context here.
What is a ‘Royalty Free’ license?
A royalty free (RF) license grants a broad bundle of reproduction rights to a client. Typically this will include unlimited repeat use in any media, at any size and for any purpose, by the client.
The advantage to the photographer is the easy sell of a proposition that appears extremely generous, almost equivalent to copyright itself. RF licenses are perceived much as ‘all you can eat for £10’ bargains by clients. In fact the small print may impose conditions such as maximum size, or prohibit advertising use. RF licenses are also well suited to e-commerce and immediate download , in contrast to the complex modular pricing of RM licenses.
The disadvantage to the photographer is that RF turns photographs into commodity items. As with any commodity, volume and price are the key factors. All control of usage is permanently lost as soon as an image is issued with an RF license. The worst aspect of RF is that many clients have come to expect RF licenses even for commissioned work that has little or no resale value, yet with no compensating increase in fees. Further there is no ongoing relationship with the client after delivery.
The advantage to the client is that RF grants almost complete control over when, where and how many times they use the image and at a fixed price. As price is not geared to usage in any way they do not need to monitor or manage use.
The disadvantage to the client is that exclusivity is unobtainable. The basis of RF pricing is volume, and that means the same image may be purchased and used by competitors. RF stock is often sold as collections at very low per-image prices. This looks irresistible but few clients ever use more than a small percentage of the rights bought. They may end up paying more than if they had licensed specific rights via rights managed (RM) licenses.
What is a ‘Rights Managed’ license?
A rights-managed (RM) license is one where specific, defined reproduction rights are granted to the client, usually limited to a set period of time. A RM license will typically comprise a package of defined usage rights specifying size, media, purpose (eg editorial, promotional, advertising), and duration of the agreement.
The advantage to the photographer is that they retain precise control over how and where and for how long the image is used. If the client subsequently requires other uses they must be negotiated as additional license terms.
The disadvantage to the photographer is that RM licenses are necessarily modular and complicated to price. This complexity makes RM somewhat offputting to clients and especially hard to formulate automatically for online sales (although the PLUS! initiative has devised a pricing matrix to simplify this).
The advantage to the client is that they buy only the rights they need, keeping cost to a minimum. Further, exclusivity is possible and may be guaranteed via RM terms.
The disadvantage to the client is that further usage beyond the licensed terms will incur further negotiation and fees. Usage requires active monitoring and management by the client, who risks infringement by usage outside the terms. There is also a concern that they may be ‘held to ransom’ for license extensions, although this may be avoided by prior agreement of prices for possible expanded usage in the future.
Is copyright infringement a criminal offence?
It can be. Copyright law in UK allows for criminal prosecution where there is deliberate intent or passing-off in a commercial context. However the difficulty of proving intent and the higher standard of proof (‘beyond reasonable doubt’) required for a criminal prosecution means that copyright infringement is almost always dealt with as a civil procedure with the aim of recovering damages.
Damages in a civil case are tied to the provable losses of the plaintiff plus the costs of the legal action. Civil courts do not act to punish, simply to restore a wrong situation. Damages can be increased to take account of flagrancy of abuse, and in recent cases flagrancy awards typically run at between 2-3x the damages. Almost any commercial use tends to be regarded as flagrant as the publisher should have known better.
There is no concept of punitive damages in UK copyright law, unlike the USA where damages can be very substantial for registered works. UK law is clearly only a weak deterrent to infringers as the worst that can happen is that they pay little more than if they had licensed legitimately. Since much of the time their infringements will go undetected, on balance it is sound business sense to be lax about obtaining permission.
This goes some way to explain why infringement is systemic among UK publishers. Although they will invariably explain instances as isolated mistakes, there is little motivation for them to take reasonable care and substantial benefit if they can get away with it much of the time. The practice is so widespread that this can only be a matter of deliberate policy, and the intentional nature means that criminal offences are being routinely committed by publishers, confident that they will escape prosecution. It’s a disgraceful way to run an industry.
Criminal copyright prosecution allows for imprisonment and fines, and infringing goods may be seized. It is important to understand that even if a criminal prosecution succeeds, a separate civil case will be necessary to recover financial losses caused by the infringement.
What is a ‘retrospective license’?
Retrospective licenses may be offered as a way to legitimise unauthorised use after the fact. For example, if you see your work used without permission somewhere, you may wish to offer a retrospective license to cover the period of infringing use in return for a fee, as an alternative to taking legal action for copyright infringement.
Retrospective licenses are outside the scope of contract law, as no contract is possible regarding past events. If the infringer rejects the license terms or fails to pay the fee, the contract is unenforceable, and legal action for damages due to copyright infringement is the only recourse.
Who do I pursue for infringement of copyright?
The answer to this ought to be straightforward, the publisher is the party who commits the infringement.
However publishers often do not accept responsibility, and will blame the problem on a web or graphic designer whose services they have used. This may even be true, the publisher may have no idea that his site is displaying your work without permission.
Do not be diverted into chasing the designer or whoever the publisher claims is responsible. Legally your claim is with the publisher. They may in turn have a claim against their designer, but that is not your concern or problem. You will only end up being the victim of both whilst they squabble about whose fault it is. If in doubt, you can commence a joint claim against both, and let the court decide.
Why might I need a model release?
Model releases have little or no relevance to copyright. There is no copyright in the human face or form, so no claim can arise. Whether this remains true after the creative work of a cosmetic surgeon or tattooist is less clear. There have been copyright cases over tattoos, which like any artwork can only be copied with permission of the creator unless only incidentally included.
A model release is a binding contract that agrees to relinquish specific future claims of equity in return for a ‘valuable consideration’. This is usually payment, but can be prints or some other agreeable exchange. However it cannot be nothing; without ‘valuable consideration’ no contract is formed.
The requirement for model releases arises only in advertising and marketing use of images, where endorsement by the subject is implied. A simple model release does not provide for defamatory use, distortion or misrepresentation of the subject, it simply says in effect ‘I am not later going to demand a further fee’ for the purposes to which this photograph may be put’. More complex model releases can waive extensive rights of redress for defamation, privacy, publicity rights etc.
One other important issue revolves around model releases and minors. If a model is to be paid and is under 18 they must be licensed models else an offence is committed. Licensing is a function of local authorities.
Who owns copyright in commissioned work?
For an employee carrying out photography in the course of their employment, copyright of the work will belong to the employer unless agreed otherwise. This may apply even if the employee uses their own camera, and shoots outside normal working hours.
For a freelance working for a client, copyright will belong to the photographer, not the client, unless agreed otherwise. Despite client expectations this applies to commissioned work where the client provides a brief, pays a fee, pays expenses incurred and even the cost of equipment hire.
That is the simple and straightforward position described by the 1988 Copyright Designs and Patents Act. Unfortunately it has become muddied by market forces and opportunism.
For employees, it is not unheard of for employers to demand ownership of all photos taken whilst employed. EPUK knows of one instance where an agency photographer employee was told by their employer that work she had shot out of hours for her own portfolio were their property, including her family snaps. Check your contract of employment carefully!
For freelances, what precisely constitutes employment can be an issue. There is an argument that a contracted freelance who works shifts is employed for the purposes of copyright despite being self-employed in tax and employment terms. The test appears to be whether the photographer determines their own hours of work and is free to decline any given assignment.
A much more common problem is the imposition of rights-grabbing contracts by commissioning clients. A copyright buyout ought to command far higher fees than that payable for first use because it represents higher value to both parties.
Whilst the law allows assignment of copyright to the client, the arrangement ought to be equitably negotiated not coerced. Large clients have far too much market power for this to happen and photographers fears of losing work have only encouraged demands for ever greater rights for less money. The outcome is that many large publishing clients now expect exactly the same rights that they would obtain from employees, but with none of the costs of equipment, workspace, computers, software, pensions schemes, holiday and sick pay. The compliant freelance bears the costs and likely soon disappears under a mountain of accumulating debt on the fees and terms available.
The solution here is to be very careful about what you agree to, and if possible to require clients to agree to your terms and conditions.
What is ‘copyleft’?
Copyleft is the generic name for licensing schemes that permit some free copying, adaptation or derivative work provided the copy is also issued with an identical license.
Note that copyleft is not in any sense the opposite of copyright, and seldom means the same as ‘public domain’ (where no copyright exists). Copyleft licenses actually rely on copyright law for their enforceable limits on what may be done. For instance copyleft usually forbids copying for commercial purposes and without attribution. Breaking the terms of a copyleft license is no different from any other infringing use.
Copyleft licensing is most commonly applied to software, where Free Open Source Software has proved highly successful, typically using the GNU General Public License. This allows software to be freely used, improved and distributed by users but disallows commercial exploitation or re-branding. Revenues are not derived from sales but from indirect services such as installation, training, and consultancy.
There are attempts to adapt copyleft principles to writing and artistic works such as photographs, Creative Commons licenses being the best known. The intention is to encourage sharing without necessarily relinquishing economic rights or bylines. However a major problem is that rather often neither the terms nor consequences are well understood by photographers or photo users and clients. Creative Commons licenses are widely interpreted as meaning the copyright user has little interest in asserting the terms so are relatively safe to steal. This perception is reinforced by an almost total lack of case law against infringers.
What is ‘Creative Commons’?
Creative Commons is a form of licensing developed by the Creative Commons Foundation, which aims to facilitate free sharing of creative works within limits specified by the license terms.
CC licenses are modular and the following components may be mixed and matched to achieve a variety of different terms:
*Attribution (BY): Licensees may copy, distribute and display the work and make derivative works based on it only if they give the author a credit as specified by the licence.
- Noncommercial l (NC): Licensees may copy, distribute and display the work and make derivative works based on it only for non-commercial purposes.
- No Derivative Works(ND): Licensees may copy, distribute and display only exact copies of the work, not derivative works based on it.
- ShareAlike (SA): Licensees may distribute derivative works only under a license identical to the license that governs the original work.
EG a BY-NC-ND licence would permit only bylined, non-commercial copying but no derivative works. Omitting the byline or commercial use or making derivative works would break the terms of the license and would be actionable.
CC licenses are not without problems, both real and potential:
- Their complexity discourages people from reading or understanding exactly what the licence permits. CC is often assumed to mean basically ‘free of copyright’ by image users, and that misunderstanding can encourage infringements.
- Despite CCF taking care to formulate terms that are in theory valid in many different countries there have been very few instances where the courts have tested their enforceability.
- Once an image has been released with a ‘liberal’ licence it is practically impossible to revert the terms to more restrictive permissions. In effect, Creative Commons licenses are irrevocable and last for the full term of copyright.
- Unforeseen outcomes may occur. For instance, if an image is released for non-commercial use and is then used by a non-profit site for purposes that the author deplores yet finds his name alongside. As the license terms have been complied with there is nothing the photographer can do.
- In a UK context there is little realistic prospect of suing for damages where a CC license has been exceeded or ignored. This arises because damages are defined by actual loss to the rights owner, and that will be difficult to prove where an image is demonstrably freely given away.
It is hard to see any benefit of CC licensing applied to photographs compared to traditional retention of full copyright. The latter does not preclude free usage or sharing, it just means the author’s consent must be obtained. The photographer therefore retains full control of how, by whom, where and for how much money.
What is ‘public domain’?
Images in the public domain lack copyright protection and may be freely used. This arises on expiry of copyright 70 years after the death of the author.
It is possible for photographers to effectively create public domain status for their work by granting a broad enough licence, eg the Creative Commons Attribution(BY) licence which permits any use on the condition a byline is provided.
It is important to realise that the issue of such a license is effectively irrevocable. You cannot later revise the license to more restrictive terms, since existing copies will undermine any attempt to assert the subsequent terms.
What is ‘First British Rights’?
First British Rights (also known as First British Serial Rights) is the traditional form of license granted to commissioners of photography. It allows the client exclusive first use of the work produced, after which the photographer regains full rights to re-sell the material. If the commissioning client later wishes to make further use of the work by republishing or publishing in additional media or territories, a further fee must be negotiated.
The advantages of First British Rights are:
- The client need pay for only the minimum rights that they need. This keeps their costs to a minimum.
- The possibility of resale allows the photographer to work cheaper than is viable for work that cannot be resold.
- It is fairer to both parties and recognises the intention of copyright law, that freelances are independent small businesses who need to retain the title to their assets.
- The gearing of use to reward is an incentive for the photographer to try hard to produce work of maximum value to the client and themself.
- Exclusivity is protected for the client. The photographer cannot sell the work to a competitor or anywhere else until after the client has used the photos. In the case of magazines and newspapers, resale rights are restricted whilst the edition remains on sale.
The disadvantages are:
- Keeping track of re-use across diverse media is practically impossible for the photographer, who must rely on client honesty
- The administrative burden of tracking further uses and negotiating additional usage fees is inconvenient to clients
- Clients may feel they are being ‘held to ransom’ over fees for subsequent use.
In recent years commissioning clients have often used market forces – the oversupply of hungry photographers – to move away from First British Rights contracting. It is now commonplace for commissioners to require copyright assignment – exactly the right that an employer has over an employee’s work but with none of the costs and responsibilities – or a perpetual license to republish without further fee. Either deprives the photographer of revenue, but fees have not increased to reflect this. Worse, it has led to a perception of photographers as interchangeable and disposable content suppliers rather than creative partners.
Is there a 6 year time limit on pursuing infringements?
It is quite common for an infringement to remain undiscovered for many years. When the photographer attempts to pursue the matter the infringer or their lawyer will point to the Limitation Act 1980, which in general bars civil claims over 6 years old. They assert this as a get-out-of-gaol card.
They are clutching a straw. S.32 of the same Act provides for the postponement of the running of time until the fraud, deliberate concealment or mistake is discovered, or could with reasonable diligence have been discovered by the claimant. Deliberate infringing publication in circumstances where it is unlikely to be discovered for some time amounts to deliberate concealment.
What is the truth about demands from Getty and Corbis?
Thousands of bills for retrospective licenses have been sent out by both Getty and Corbis, relating to images allegedly used without license by websites. These have asserted very high levels of fee in line with US statutory damages rather that UK peanuts even when they have involved UK based domains. They give 5 or 7 days to pay.
Many recipients have wondered whether these are scams. They are not. Getty Images is the largest stock photo library in the world, and Corbis is the second largest.
This is all discussed at great length in a panic-stricken and angry thread that is now 67 pages long and raged for over a year at the Federation of Small Business forums. Dozens, perhaps hundreds of these notices have gone to UK citizens.
Without exception these bills have not so far resulted in any court action. Getty seem to be trying to compel settlement rather than sue. They are using UK solicitors who are by all accounts very persistent. Some have paid but many of the accused are arguing – some claim to have legitimate licenses obtained elsewhere, others dispute the amounts (typically £1,500-£7,000) as bearing no relation to Getty’s own prices for legitimate use, that there was no way they could know the origin of the images or their copyright status etc.
But there is an exception here, albeit from an anonymous poster:
Having been caught in the the middle of this almighty mess because of one $20 image I legally licensed from a 3rd party that defaulted Getty persued me for costs and fees of near $2500.
As I am UK based I responded to their threats that US court action had absolutely no merit and I challenged them to bring it to a UK court for settlement. They didn’t and summary judgement was granted in a US court which means the next time I set foot in the USA I will be arrested. …
Maybe it’s true, maybe it isn’t. It is plausible that web publications are able to be deemed to occur in the US if the site is visible in the US. It is also true that an unpaid civil debt can lead to arrest for contempt of court in the USA. Maybe Getty is building a class action against all the UK infringers who are arguing, which it will pursue later in the US courts. We don’t know, nobody does. If you receive one of these notices we would strongly recommend you consult a specialist copyright lawyer as soon as possible – and please let us know the outcome. Most of the internet advice is utterly wrong, including a US attorney who misinterprets UK law. His alleged defence has been repeatedly invalidated by UK court cases and is worthless.
How do I trace an infringer?
Google is your friend. If you are dealing with infringement by a print publication you will likely be able to locate the publisher’s registered office easily enough. Try to find out who the editor or publisher is so you can pursue the named individual.
Where web infringements are concerned, it is often easy to trace the domain owner using a WHOIS lookup such as WebBoar domain tools.
We recommend all communications with infringers be in writing and that you post your letter using Recorded Delivery. It is amazing how often such letters otherwise allegedly go astray. Email is also susceptible to loss and denial. Requiring a receipt only works if the recipient allows it.
What is an ‘included work’?
An included work is someone else’s copyright material that appears in your photograph. Provided the inclusion is incidental, this does not infringe. The difficulty is deciding whether incidental or deliberate copying is involved. The courts use the question ‘is the copy a substantially new work?’ to decide this point.
This all means you have to be careful when photographing. Putting someone up against a background of a painting might be unwise, unless the painting truly is an incidental inclusion. Buildings and scupltures are copyright, but as public works they may be photographed, although a sculpture in a private location may not.
A further consideration is the inclusion of registered trade marks such as company logos. Again, incidental inclusion is OK, but a straightforward photo of a logo may constitute an infringement. Some companies are very aggressive, the London tube ‘roundel’ being a famous case in point. Many stock libraries exclude any image that includes the roundel whether incidentally or not, thanks to threats of legal action.
Isn’t copyright just about money and greed?
It is a legal framework for intellectual property, so inevitably it is a mechanism to regulate who owns what and who pays whom. Some argue that this makes copyright law itself undesirable because it stops people sharing freely. However the implication of sharing freely is that nobody will bear the costs of creating the work except the creator. And that is exactly why copyright was originally introduced, because without some means of ensuring reward, only the rich could afford to create anything and it was believed to be unhealthy to rely on the rich alone for creative works.
The situation has changed considerably since. Because of digital communications copies can be stored and circulated at near-zero cost and in vast numbers. And the explosion of interest in photography means that a huge population of photographers is busy creating and sharing. But still there are limits to what amateurs can achieve in their spare time and out of their own pockets. If we want photographers to take personal and financial risks, to cover subjects that require more availability or depth than just weekends and holidays, then there has to be money involved, and copyright as a framework for the market seems inescapable.
How do I find a solicitor to handle a copyright case?
It is not the best idea to approach the average High St. solicitor with a copyright dispute, since it is a specialist area of law. It’s preferable to use a firm that has expertise in intellectual property, who may be found via the Law Society. Alternatively, we list a few we know of on our links page.
NUJ members are reminded that it is now Union policy to provide legal assistance in copyright cases.
Why don’t all copyright images contain metadata that identifies the owner’?
It would be very helpful if they did, but for a variety of reasons they do not.
- Not all photographers are able to embed metadata in their files because they do not own software that has the capability. And some don’t know they should.
- If images are uploaded direct from a digital camera to the web, there will be no IPTC caption or copyright information. Some cameras can embed copyright info in EXIF fields instead, but this is non standard.
- Most cheaper image editing programs cannot read or write IPTC data, and if you load an image which contains IPTC then re-save it, the data is lost.
- Rather a lot of the digital asset management software used by large media companies, especially newspaper desks, for many years allegedly contained ‘bugs’ that stripped authors’ copyright statements. Remarkably these same bugs often substituted the newspaper’s details, even though they were not the copyright owners. At the time of writing, these bugs do not appear to have been entirely fixed after over 20 years of use. Willfully altering copyright statements is of course criminally illegal.
- Until Photoshop CS3 in 2007, Photoshop’s ‘Save for web’ option (incredibly) discarded IPTC information
- Until recently, web browsers discarded IPTC information when saving an image from the web. So even if the metadata was present, it was long gone by the time you went looking for it.
- Similarly some email clients lost the IPTC data when you saved attached image files. This was particularly an issue with Outlook and Outlook Express, which used Internet Explorer for their image handling, as IE did not preserve IPTC info.
- MSIE, the most commonly used web browser, insists on saving bitmap files (.bmp) from some sites where, in order to prevent ‘leeching’ the webserver technology does not allow direct access to the JPEG file. Bitmap files cannot contain IPTC records, therefore the data is lost.
One of the great advantages of digital images is that they can be endlessly replicated and distributed without degradation. Unfortunately, the chances are that at some time in their life-cycle they will encounter one of the issues above, and thereafter contain no copyright ownership information at all and become potential ‘orphan works’.
This does NOT however mean they are free of copyright. You must not rely on the absence of this data as evidence of lapsed copyright or public domain status. Copyright still applies exactly the same and the lack of information simply means you will have to look elsewhere to find out who the rights owner is. This is frustrating for both parties but there is no solution at present, and no technical way to ‘lock’ the data.
What is a ‘derivative work’?
There are various ways in which a photograph or other artwork may ‘derive’ from another. The most common example is montage, where elements of multiple images are combined to make a new but ‘derivative’ work.
Compositing in this sort of manner is very routinely done by photographers and graphic designers. The new work will be copyright of its author, but infringement will arise if permission was not obtained for inclusion of someone else’s copyright imagery. The owner of the original can then sue for damages or even claim joint copyright in the new work.
Note that you do not have to use an entire work for this to arise, even small elements cut from the whole are problematic. Nor does modifying those elements avoid problems unless they have been altered to the poiint that they are unrecognisable. If recognition is possible, it’s an infringement.
Plagiarism, where a new work is based wholly or in part on someone else’s copyright work, may also be a form of derivative work. Again, recognition of the original is the key factor.
There are not at present any special fair dealing provisions for derivative works in UK law, although legislation to permit fair use for the purpose of parody is expected, having been recommended by the 2007 Gowers Report.
Why should amateurs care about copyright?
As soon as you place your work on the public web, you lose the innocence of not having to pay any heed to copyright. Your work may be used for any purpose unless you take care to control what others may do with it. There are no effective physical means to prevent anyone who can see your images from copying them, perhaps using them commercially or on sites and in ways that you personally disagree with or find abhorrent. Your copyright is the only tool you have to restrain such things.
Copyright is unfortunately deeply tedious and dull, and the temptation is to allow any use without considering the possible consequences. Some people have utilised the Creative Commons licenses to formalise their generous wish to share to an extent that they find acceptable whilst reserving rights they wish to retain. This is certainly worth considering, but be aware that Creative Commons licenses are complicated and consequently widely misunderstood even by some of the people who use them. They are also interpreted quite often as a sign of someone who is unlikely to enforce their rights, so may be safely disregarded. All told, it’s simpler to use a copyright statement and require people to ask for permission.
Ultimately you have to decide whose photos they will be. They are yours by right, but unless you take care they will be taken from you by opportunists who have no interest in you, and whose only interest in your work is how much profit they can make. Any photograph that is good enough to use commercially or steal is not worthless.
What is ‘viral licensing’?
Creative Commons and other ‘share-and-share-alike’ licenses are sometimes called viral licenses, because they require anyone who creates a derivative work to apply an identical license to their new work. Sharing with others is thereby perpetuated.
Is IPTC metadata protected by law?
Altering or removing copyright ownership information, in IPTC or anywhere else, is a criminal offence in UK under the Copyright and Related Rights Regulations 2003 (which extend the 1988 Copyright Designs and Patents Act) if done with the intention of depriving the rights holder of their intellectual property rights. However the practice is commonplace among publishers, who then fail to seek permission or pay the unknown rights holder, or syndicate the material as their own. Prosecution is virtually impossible since deliberate intent would have to be proved.
Altering other metadata such as captions may also be unlawful, contravening the author’s moral rights if they have been asserted.
Why might I need a property release?
Property releases are similar to model releases. A property release is a binding contract that formalises the agreement of a copyright owner whose work is the subject of, or featured in, a photograph. The agreement will set out what use may be made of the photograph and what rights, if any, are retained by the property owner.
Contrary to popular belief they are not generally required for images of buildings in UK, because although buildings are copyright designs, the 1988 Copyright Designs and Patents Act provides an exemption for certain works on permanent public display, which buildings almost always are. Most scuplture is also similarly exempt.
In theory any ‘designed object’ may be subject to the designer’s or manufacturers’ copyright, so a photograph that includes almost any product could be argued to require a property release. However a photograph is not a copy of the product but a representation and will generally comprise a sufficiently a new and original work for this to be invalid.
The usefulness and applicability of property releases under UK law is therefore limited in most circumstances, although any marketing or advertising use that implies endorsement by the ‘brand’ could be hazardous without a release that explicitly permits this. This is not a copyright issue as such, but one of commercial interest, passing off or defamation. Such releases usually cost a great deal of money to obtain. Fortunately this issue does not arise in editorial use.
Releases have more copyright relevance for photographs of logos or registered trademarks, where ‘copying’ goes beyond incidental inclusion. Here the mere act of photography may infringe. Despite the threats of some trademark holders, it is hard to see what damages could arise directly from the copying itself and the position remains uncertain for editorial use.
As with model releases, the client who publishes the photograph assumes ultimate responsibility for any infringement. This concern has led many stock libraries to require property releases to be available even when they are irrelevant or unobtainable. This is an awkward or impossible requirement for photographers that has its origins in rather different US law regarding buildings, which affords post-1999 buildings of US-registered design full copyright protection in limited circumstances.
What are ‘moral rights’?
‘Moral rights’ are certain legal rights under the 1988 Copyright Designs and Patents Act. They include
- The right to be identified as the author, eg byline credit
- The right to object to derogatory treatment of a work (but only, curiously, where the author has been identified)
- The right not to have work falsely attributed, ie someone else’s work appear with your byline
- The subject has a right to privacy in certain photographs, eg photos taken for private or domestic purposes may not be distributed, published, broadcast or exhibited to the public without consent. This includes weddings, private portraits etc.
There are very significant limitations to the rights to be identified as the author and to object to derogatory treatment of work:
- Moral rights do not apply to photos made for the purpose of reporting current events. Whilst news is clearly exempt of moral rights, almost any journalistic photography may be ineligible. This get-out clause and the following one were late additions to the legislation c/o lobbying by newspaper and magazine publishers – the very areas where these rights would be most significant.
- Moral rights do not apply to work published in newspapers or magazines
- Where they may apply, they must be asserted to do so by the author, usually by means of a statement such as ‘Full moral rights are asserted by the author in accordance with the 1988 Copyright Designs and Patents Act’, or even ‘Byline obligatory’.
- Moral rights may be waived (in writing) but cannot be assigned to another party. Rights-grabbing clients often insist on a waiver so even the right to a byline is lost.
- There are limited legal sanctions for violating moral rights. A complainant may apply to the court for an injunction to prevent violation, but there are no penalties available for failing to print a byline beyond damages that will be difficult to assess and prove. However photographers own terms of supply can stipulate penalties that are enforceable as contract conditions.
How much can I charge for infringement?
When claiming payment from an infringer it’s advisable to think through the possible outcomes when considering how much to charge. The infringer has forfeit the right to negotiate price by using without permission, so within reason you can charge what you like. However you want them to settle early and easily, to avoid the expense, complication, delay and uncertainty of court action. Therefore how much you charge ultimately has to be defensible in court, but reduced sufficiently to encourage them to settle.
If you were to sue in a UK court, the damages for infringement would be based upon the market value of the use that the infringer has made of your work, increased perhaps by an amount that the court deems appropriate for flagrancy of the abuse. UK courts are restrained about this, unlike the US where punitive multipliers of up to 70x are applied for infringements against registered works. UK damages are closer to the US case for unregistered works, which are limited to 2x the lost revenue.
What this means is that the more flagrant the infringement and the better your evidence the more you can charge, but probably it should be no more than 2 or 3x the going rate.
If you win the case you would normally also win your costs from the infringer. So these costs can also be factored into your proposed settlement figure.
Because market value is central to damages, you will have to convince the court that the value you place upon your work is realistic. The other side will almost certainly try to challenge your valuation. For that reason you have to stay close to ‘the going rate’ unless you can prove that the work had exceptional value, either because you are able to command exceptional rates or the work itself is rare or exclusive or has required unusual skill and effort. If you are able to produce proof of previous sales at higher rates, so much the better.
So you need to base what you charge on the going rate, adjusted for any special considerations. Useful resources for finding out rates are the price calculators at Alamy and Getty photolibraries (you will need to register with these), and the NUJ Freelance Fees Guide (accessible to anyone).
NB: if you have a lot of work placed with microstock libraries charging (say) $1 per Royalty Free image, you have shot yourself in the foot. Since you have established your going rate is $1 or so, infringements are simply not worth pursuing.
Your final price will therefore be a calculation based on all of the above. This may of course be sufficiently high that the infringer will likely baulk at your offer of a retrospective license. A proven tactical device is to offer a sizable discount for early settlement, say 30% off for settlement within 7 days.
How do I sue for copyright infringement?
You, or your legal representative, will issue a summons against the infringer, that will initiate court proceedings where a judge will listen to both sides and award damages and costs as appropriate.
Be warned that taking a dispute to court is a last resort. You must exhaust attempts to resolve the matter, and the court will take a dim view if it considers you have not negotiated fully.
Copyright cases are now heard by the Intellectual Property Enterprise Court [IPEC]. This has a small claims track for claims up to £10,000 which is the appropriate route for the vast majority of copyright cases. It is generally best to DIY rather than use a lawyer, since small claims procedures are intended to be friendly to laymen in order to keep costs to a minimum, and only limited costs are recoverable.
IPEC small claims track is relatively new, and photographers are still developing experience of using it. It’s fair to say that it is a right old muddle, with vague yet inflexible procedures, scattered documentation, and often contradictory information. Nevertheless it can be, and has been used effectively, and seems to provide a better class of judgement thanks to judges who specialise in IP law, unlike earlier County Court procedures. Using IPEC is very much a live topic for EPUK, so please search this site for further information.
How do I pursue infringement in a foreign country?
What you can do, if anything, depends on circumstances.
As with any infringer, the hope is that negotiation and commonsense or threats, will prevail, avoiding the costs and risks of legal action. However it’s best to know what is possible so you can adopt a measured and realistic response.
The best situation is that the infringer has local offices and assets in the UK. If that is the situation, they are accessible to UK courts.
If the infringement is a web publication it can be useful to approach the ISP to deal with an evasive infringer. Overseas ISP’s may have parents in UK, and one large infringement was dealt with by approaching the UK parent of an Indian hosting company, resulting in the site being removed from Indian servers.
If the infringer is using GoogleAds, you may be able to have their account cancelled, thereby depriving them of revenue. Google’s IP policy provides a mechanism for doing this, although it is quite laborious.
If the infringer is located in the USA and the work is registered with the US Copyright Office, you should not find it too difficult to locate a US attorney who will take your case through the US courts on a contingency fee basis. If it’s an unregistered work, they won’t be interested because it isn’t likely to be financially rewarding to try and recover damages. You can however get a US attorney to apply for a take-down notice under the Digital Millenium Copyright Act (DMCA).
One thing to watch out for is that ‘fair use’ in USA extends to any educational use, and you will have no success against US schools and universities using your work for any purpose they wish.
There are also esoteric legal arguments surrounding what comprises ‘commercial’ use. In the USA editorial use is often distinguished from commercial use, because the press is protected as a constitutional freedom. In the last year or so this has given rise to an argument that press use is a constitutional obligation, therefore is not commercial and hence is fair use. This seems crazy because press publishing is commercial, done for profit, and they don’t give away their product or copyright. The debate continues and is best ignored : until a test case has established otherwise they owe you the money.
Infringers in EC countries should now be easier to get at, in theory. In 2009 the cross-border pursuit of damages became available from any EC country rather than having to take action within the infringer’s national jurisdiction. The process promised to be little more difficult than current Small Claims procedures within UK, with the facility to initiate online. However this is not yet a well trodden path and is obscured by lack of information. Each country has its own un-obvious procedures.
Elsewhere in the world you have little choice except to find a lawyer within the home country of the infringer and pay them to take legal action locally. This can bring you into contact with legal professionals and processes that will test your patience and wallet, so is best reserved for serious infringements where large sums of money are at stake.
In some cases local photographer or journalist trades unions may be able to advise or assist, and have done in Australia and Canada in particular. You probably want to start by asking the advice of your own TU or other professional organisation, if you have one. Similarly approaching the trade commission or bureau of embassies can assist. Some countries are sensitive about their trading reputation and will at least offer advice on how to resolve the situation. Others will sound sympathetic (or not) and show you the door.
Being realistic is essential. In many instances, your loss of income will be far exceeded by the costs of attempted recovery, and even if you win a judgement, enforcing it against people who have few or no assets and are thousands of miles away. Trying to get your £15 from ‘What Yurt?’ in Ulan Bator will simply not be worthwhile.
Having said that, it is essential to at least try and get the offending material removed and ensure that the infringer knows they owe you money. If you simply ignore infringement, you potentially weaken any future case for damages within the UK against some other infringer. If your failure to assert your copyright comes to light the argument could be made that you are simply now taking advantage of the court to demand money for images you had previously allowed to be used for free.
I shot a job but now the client is demanding copyright. Do I have to agree?
What is actually happening here is that the client is attempting to (re)define the contract after you have fulfilled your part of it. This is common, either out of ignorance, presumption, or outright bullying and is generically known as a ‘copyright grab’.
Legally, contracts and variations of contracts cannot be imposed, they are an agreement between both parties (unless one party already signed away the right to object). Since you made a verbal contract to do the work, then did it to the client’s satisfaction, it is too late for them to now require terms they failed to specify. So, no, you are not obliged to accept their proposal.
However unless you have documented proof of what was agreed, eg signed T&C’s or at least emails or letters or notes or recordings of phonecalls, what actually was agreed may be disputed by the client. Clients often mistakenly believe that they are the owners of copyright in commissioned work, although frequently it is a deliberate attempt to twist your arm to obtain more than has been paid for. But, in the absence of an agreement you own copyright as the creator of the work. Presumably you based your pricing on this understanding, too. The onus is on the client to prove otherwise, not you.
The diplomatic way out of this may be to point out that a copyright buyout will be very much more expensive than your quoted price for first use. Almost certainly they don’t need the broad rights they are now asking for and will not want to pay this. If they do, they should pay accordingly, and the Association of Photographers recommend that a buyout should cost somewhere around 7.5x-10x the first use fee. You may be able to agree a license that includes the rights they really need at a price that is mutually acceptable. If not, then stick to the first rights fee for first rights.
Don’t be intimidated by threats such as ‘you’ll never work for us/this industry/in the UK ever again’. We have all heard that multiple times. Clients who don’t play fair are not worth keeping.
Can the owner of private property claim rights to any pictures taken on his property?
If you pay for admission you create a contract with the owner, and terms of admission are often used to restrict or take rights in your photos. These are often stated in small print on the ticket itself so you cannot claim you were not made aware of the terms of the contract. Motorsport and other sports venues are particularly fond of these conditions, sometimes claiming all intellectual property rights of anything you create, but they crop up at music venues and all manner of other places. They are open to legal challenge, mainly on the grounds that they are unfair and/or that the terms were not stated before payment. It’s worth remembering that a copyright assignment has to be in writing. But a court would ask why you didn’t immediately return the ticket and ask for a refund if the terms were unacceptable. The safest course is to boycott such venues – and let them know why.
What is a ‘rights grab’?
As the owner of copyright of your work, nobody may use your work without permission. In recent years, publishers and competition organisers very frequently embed clauses within terms and conditions that take unjustifiably extensive rights in any work that you submit to them. It is common for such clauses to assert blanket permission for any commercial use including the ability to sell on to other publishers or exploit in other media, and to waive your moral rights to a byline or to object to misuse.
Despite such T&C nearly always asserting that ‘you retain copyright in your work’ effectively the rights taken are as extensive as copyright itself, They just steal the economic value. Always read T&C carefully so you know exactly what you are agreeing. Also be on the alert for liability clauses that make you legally and financially responsible for actions of the publisher that are beyond your control.
The reason for rights grabs is of course that the ‘grabber’ wants the photograph to be their financial asset, not yours. Amateurs who don’t think of their work as having monetary value should consider that it certainly does have value to the ‘grabber’, and they are effectively demanding a blank cheque. This is generosity they would be unlikely to bestow on a needy stranger in the street, let alone well-heeled corporates and their shareholders. Professionals should recognise that their work is the only asset they will ever own, and giving it away c/o ‘rights grabs’ is a fast-track to insolvency in the same way that ‘Buy One Get Twenty Free’ would be a dumb way to run a shop.
Where can I take photographs without needing permission?
In general photography does not require permission in public places. However what sounds like a pleasantly simple rule is complicated considerably by questions of what exactly comprises a public space. There are a number of important restrictions that apply:
- Photography in public places such as roads and public Rights of Way can be problematic if you use a tripod or other equipment that causes obstruction or hazard to the public. Unfortunately the offence of obstruction can be committed merely by standing still, and the threat of arrest for obstruction is often applied by the police in order to curtail photography.
- Obstruction of a policeman in performance of his duty can be invoked if you fail to follow police instructions or co-operate.
- The Terrorism Act 2000 (section 44) allowed police to perform a stop and search without giving any reason whatsoever. This legislation has now been removed, and s.45 – which requires reasonable suspicion of terrorist activity – is used a great deal less. However you can expect to be arrested.
- As if all that isn’t enough, 2015 additions to terrorism law promise to expand terrorism to include any behaviour that might be regarded as offensive or upsetting.
- A fashionable new excuse for curtailing photography is ‘antisocial behaviour’. This only requires someone somewhere to feel threatened or intimidated, and the threat of an ASBO is quite serious.
- The Official Secrets Act 1911 prohibits photography that threatens the security of the state:
- Military establishments and munitions stores, aircraft and ships
- Civil Aviation property and naval dockyards
- Railways, road, waterway, power stations, waterworks, nuclear power stations defined as prohibited places by the Secretary of State.
- Telephone exchanges and communications centres operated by the Crown
- Anywhere else that is a prohibited place by order of the Secretary of State
- A great deal of the UK is under private ownership and although open to the public does not constitute public spaces. Examples would be shopping malls, carparks, markets, office developments etc. EG Spitalfields Market & Canary Wharf are guarded by private security who appear unable to tell the difference between a camera and a rocket launcher.
- Some public spaces have laws which explicitly restrict or prohibit photography, eg parks, Trafalgar Square, Parliament Square. Typically amateur photography is allowed without a tripod, but photography for commercial purposes is forbidden without a permit.
- Certain public spaces are subject to SOCPA restrictions. The designated areas currently are 1km around the House of Commons, Westminster Bridge, New Scotland Yard, St Thomas’ Hospital and the Channel 4 site. Although SOCPA restricts public demonstrations rather than photography, photography is treated with heightened suspicion at these locations, and photographers covering either authorised or unauthorised demonstrations have frequently been treated as demonstrators and threatened with prosecution even when carrying bona-fide press credentials.
Whom do I ask for permission to take photos on private property?
You must ask the landowner, or their agent or representative. On private land open to the public, having permission will allow you to photograph people without their individual consent, but note that privacy considerations will still apply. You should not photograph anyone in circumstances where they might normally expect privacy without obtaining their consent.
Can private security guards stop me photographing?
A very commonplace experience is to have security guards run out of a building you are photographing and insist that you cannot because the management do not allow it, because the building is copyright, because it is private property, because you need permission, that they will have you arrested, or you will be sued. They have no authority nor legal basis for any of this so long as you are photographing from the public road or path. They have no power to demand you delete pictures, and no power to demand your name and address.
In most cases, if patient explanation doesn’t do the trick, calling the police is a good idea.
Whose copyright are photographs taken without permission?
If you take photos on private land without permission, whether photography is prohibited or not the photographs are your copyright.
There are occasions where if the landowner can demonstrate to the court that your copyright represents a financial loss, eg because he himself sells photos of his property, then the court may intervene and award economic copyright to him.
Can I take photographs on private property without permission?
Yes, but only if it is not prohibited by the landowner. The landowner is within their rights to prohibit photography on their property or to require payment for permission.
If there are ‘no photography’ signs or terms of admission that forbid photography, you commit a trespass by taking photos, and may be told to leave. If you do not leave immediately reasonable force may be used to eject you. You may also be injuncted or sued for damages in a civil court. However the landowner or staff do not have any legal power to demand handover of film or memory cards, nor to require the deletion of images.
Does a press card provide special privileges?
Press have no special privileges of access in UK, their entitlement to photograph is identical to every other citizen. The National Press Card serves only as a means of identification as a member of the press. Whether it is accepted as such by police or other authority is variable.
In some circumstances press cards do achieve greater access, but this is dependent on the operational priorities (or whim) of the police. Press may be admitted to an area that has been closed to the public because of an incident or for security reasons. At other times press will receive extra attention to prevent them photographing even when surrounded by a sea of amateurs clicking away with digicams and mobile phone cameras.
Can I take photographs of children?
Photographing children in public places is, for most children, exactly the same as photographing adults under the same circumstances. That is, there is no right to privacy and hence it is legal.
There have been several legal cases in recent years where celebrities have argued for, and won, a right for their children to expect privacy in public places as a protection from tabloid and paparazzi intrusion. But those are special cases for rich people.
The more general exception is children (and vulnerable adults) who are wards of court or subject to a child protection order, or on the ‘at risk’ register. The Children Act 1989 creates special rights of privacy (‘the rights of the child’) which make it an offence to publish any photo that might place them at risk from, say, an estranged violent parent by divulging their location. A photograph of a child in a public place wearing school uniform, or accompanied by others whose whereabouts are known to the would-be assailant, might conceivably do this.
The Children Act is also the cause of problems at sports clubs and similar venues, as the supervising adult has a legal duty to safeguard these enhanced rights to privacy. And since part of that right is confidentiality about the child’s status, usually they will not know themselves which, if any, children in their charge the Act applies to. Their safest course of action then becomes one of challenging any photographer as an imminent threat.
But by far the biggest issue surrounding photographs of minors is public fear of paedophiles. There seems to be a widespread assumption that the only possible explanation for any adult photographing children who are not their own is that they are a pervert with a camera. Assaults on photographers are common. Proceed with extreme care and sensitivity, and if at all possible ask permission.
What is SOCPA?
The Serious Organised Crime and Police Act 2005 creates ‘designated areas’ where demonstrations or protests are suspended unless prior permission from the Secretary of State has been obtained.
This should have no bearing on photography but in practice it does not work out like that. Anyone photographing unauthorised protest within the designated area of 1km from Parliament, Westminster Bridge, New Scotland Yard is liable to be regarded as a protester rather than a photographer and detained or arrested, and that includes professionals reporting on events.
Can police or PCSO’s insist I delete my images?
No they have no legal authority to do this. Only a court may order deletion of images.
Can police or PCSO’s insist on viewing my images?
PCSO’s have no such powers, and police do not except in specific circumstances. But you may save yourself from being arrested if you comply.
- Police now need a reasonable suspicion of terrorist activity to search under S.45 of the Terrorism Act. S44, which enabled random search without suspicion, has been rescinded.
- If police want to see a photograph because they believe it may assist investigation into a criminal matter, they have a right to collect evidence. If you do not comply you may be arrested for obstructing a police officer, withholding evidence or even conspiracy to pervert the course of justice, depending on circumstances. As noted, professional newsgatherers have some protection from this in PACE.
Can police or PCSO’s confiscate my camera?
In certain circumstances, yes, but note that all these powers are restricted to police, not PCSO’s.
- After arrest for any offence all your personal belongings will be confiscated
- After arrest, when they believe it may be stolen property
- After arrest, when they believe you are using it as an offensive weapon
- Stop and search under the Terrorism Act 2000 entitles police to search any equipment that may be used for terrorism if they have a reasonable belief that you may be engaged in terrorist activity. They also have the power to seize the camera for examination and to arrest you.
- Police may wish to see photos because hey believe it contains evidence of the commission of a crime. This is particularly difficult because if you object you may be arrested for obstruction of a policeman in performance of his duty.
The police have a right to view and keep copies of your photos for evidential purposes unless you identify yourself as a professional news-gatherer, in which case your equipment, media and data is ‘special procedure material’ under PACE (Police and Criminal Evidence Act) and may only be accessed on the order of a court.
Can police or PCSO’s ask what I am photographing?
They can ask but you are not obliged to answer them. However security is their job and whether or not their questions seem daft you would be wise to explain in polite, non-confrontational terms. If you appear hostile or evasive you are failing the ‘attitude check’ and indicating that you merit further investigation. Offering proof of identity may help allay their suspicions.
Is it legal to take photos of people without asking?
In public places where there is no right to privacy, yes you can. The same applies in private places where you have the permission of the landowner or the landowner has stated no restrictions on photography. However photographing someone without asking their permission can cause a lot of trouble if not handled sensitively. If someone does not want to be photographed it is best to respect their wishes unless there is an overriding reason not to. Most people in most circumstances respond well to friendly explanation, especially if you show them the photo. Nevertheless some will object that you have violated their rights in some interesting way, and it’s best to have the explanations ready.
- ‘You can’t take my photo without permission’. Oh yes you can, usually. Point to the CCTV cameras and wave, they never asked either. Of course it is perfectly understandable that individuals may feel singled out and perhaps intimidated, frightened or angry not to be in control, but it’s not a legal point.
- ‘You have violated my copyright’. This is in no sense true. There is no copyright in the human face or form, and copying would anyway mean cloning them, not creating an image. An image of a person is copyright of the photographer.
- ‘You have violated my privacy’. Legally this is unlikely to be true. There is no right to privacy in public places as a rule. There is a right to privacy in private places and in public places where there is a reasonable expectation of privacy (eg public toilets), but how extensive this is depends on circumstances.
In private places that are open to the public, permission of the landowner is usually sufficient to be able to photograph visitors and staff. However a recent court case upheld a right to eat a meal in a restaurant in privacy even though the restaurant owner had consented to the photography, because in the court’s view it was a customer’s normal expectation not to be photographed there. If in doubt, this is probably the question to ask yourself.
- ‘You have violated my human rights’. Police sometimes object to being photographed on the grounds that their ‘Human Rights’ are being violated. This really means the same thing as ‘privacy’ and there is none in the street as the presence of CCTV and police photographers shows.
The Human Rights Act 1998 recognises a human right to expect privacy wherever privacy is normal, eg in the home. So photographs taken where privacy may be expected require permission of the subject. EG photographs taken from public places that depict someone within their home in a situation where they expect privacy, for instance through a window using a telephoto lens, will be actionable.
- ‘You are harassing me’. Photography can indeed constitute harassment, but for an act to constitute harassment requires deliberate acts of harassment on at least 2 separate occasions. The complainant may then seek a restraining order from the court.
Harassment is potentially an issue for paparazzi in their pursuit of celebrities, but equally a restraining order has been used to suppress inconvenient photography by npower at Radley lakes.
- ‘You need a model release’. Model releases are not necessary for anything except photographs to be used for commercial purposes. For editorial or artistic purposes they have no relevance unless you intend defaming the subject and need them to make a contractual agreement not to sue you for libel. If you intend selling the image for marketing or advertising use that implies endorsement by the subject, then yes, you need a model release (or rather, the advertiser does).
- ‘You have violated data protection law’. Superficially this seems correct as the Data Protection Act does indeed prohibit the recording of data that identifies an individual. A photograph certainly qualifies and the DPA certainly applies to CCTV monitoring, ID photos etc. However the DPA Part 1 Section 3 specifically exempts as a ‘special purpose’ photographs or other data recorded for journalism, or for artistic or literary purposes.
Can security guards detain me?
If they have witnessed you committing a criminal offence they have powers of citizens’ arrest. Photography is not a criminal offence except of sites that are covered by the Official Secrets Act. Note that unless there are signs or other terms displayed that prohibit photography, photography is permitted on private land until and unless you are told it is not. It then comprises a civil trespass.
They are entitled to require you to leave and can use reasonable force to eject you if you do not leave immediately when asked, or if you persist in taking photographs, but they cannot lawfully detain you.
In such situations it is a good idea to offer identification and an explanation of what you are doing. Keep calm and reasonable, even if they are not.
If security guards attempt to detain you, remind them that if they wrongfully detain you they commit a criminal offence. If they persist, call the police and tell them you are being illegally detained.
How can I avoid trouble?
There are certain things you can do which can help avoid confrontation sometimes, or mitigate problems when they arise. Bear in mind that you are dealing with people who are sometimes stressed and scared, and that can easily become irrational anger. In combination with ignorance about the legal rights and wrongs of photography, this can really spoil your day. Psychology and good manners are more important than law if you hope to just enjoy taking photos.
Behave as if you are entitled to be where you are and taking photographs, because you are. If you look confident rather than nervous, you are less likely to encounter problems. Acting surreptitiously only adds to the impression that you are doing something covert and ‘wrong’.
On the other hand, being overly brazen or aggressive will draw attention. There seems to be a whole social media genre of photographers who think being obnoxious is creative. All they achieve is a public antipathy to all street photography and a belief it should be banned, which many politicians would dearly love to do for their own murky reasons.
There is a whole book to be written on the techniques of successful street photography, but approaches and ideas vary. Body language, eye contact, appropriate dress for blending in or sometimes standing out as ‘official’, all play a part.
So does smiling a lot. Take the initiative if someone looks worried, go and talk to them. Most people are flattered once they understand you are not hostile to them.
It is a very good idea to carry a small voice recorder and tape any confrontations covertly. Facts have a habit of being altered after the event and an objective record will be useful for any complaint or subsequent dispute.
If challenged, stay calm, be reasonable. Offer identification and an explanation of what you are doing. An offer to show the photos can help. Appear compliant and non-threatening, but if asked or ordered to hand over equipment or delete images, ask by what statutory power. If the situation appears to be threatening call the police.
Of course this is not much help if it is the police who are exceeding their authority. It is best not to get into arguments with police because they are trained and empowered to impose authority, and you will end up arrested if they have the slightest pretext.
- If they stop and search you, ask for a Search Record form.
- If they insist that you stop photographing, generally it will be best to note their badge number and complain later.
- If they insist that you delete images, tell them that only a court has the power to compel this. As a last resort remember also that deleted images can be recovered via software tools such as Photorescue, so long as the card is not subsequently written to.
After holding an event involving young people (aged 10-15) do you need permission to post photographs of the event on the web?
In general minors have no greater or lesser rights than adults, and in general editorial photos taken in public places will require no consent. The key concept here is ‘reasonable expectation of privacy’. In public places there is seldom any such reasonable expectation. In private places there may be. Eg if the photographs were taken at a private party in someone’s home or back garden, permission would be necessary, but if the event was in a park or other venue open to the public, it would not be required. A school is a private place in this context, and permission is required.
Note that where permission is required, either the parent, guardian or carer with a delegated authority (eg teacher) must provide consent for under 18’s. You cannot just ask the child.
The reason for the photos being taken may play a part too: if privately commissioned by, say, a parent, then like portraits and wedding photos they would be private to the client and permission would be required.
There are some specific other factors to be careful of here too. You would be very unwise to use such photos for any advertising or promotional use that implies endorsement or approval, without obtaining model releases. Also be extremely careful about clothing and disposition : any hint of depiction of sexuality in photos of minors is a criminal offence. And finally be careful about captioning with names or identifying location : there are the ‘rights of the child’ under the Children Act, where children who are wards of court or on the At Risk register have enhanced rights of privacy. You will find more about this complicated subject elsewhere in this this FAQ.
Can someone photograph my property without my permission, and post on the internet without my permission?
Yes to both questions, with some reservations.
It may surprise householders but no permission is required to photograph property from the street or footpath or public area. However if the photograph is made whilst on your private property you are within your rights to prohibit them taking photos. If they continue after you have asked them to stop, they commit a trespass and you may use reasonable force to remove them if they do not leave promptly when asked.
Even so, copyright remains with the photographer. But if the photographs cause you economic loss (say you make a living from selling photos of your stately home), then this can be challenged and the court may award the economic rights of copyright to you.
Another issue is privacy. So long as the photographer takes no photos that violate a reasonable expectation of privacy, there is no problem. Permission is required to take photos where people are visible inside their own home, even if visible from the street. through a window. Note, also, that back gardens are regarded as private areas, unless clearly visible from the road.
Regarding publication on the web or in any other medium, much depends on context. Advertising use would likely require a property release, if endorsement of a product is implied, and some marketing uses may too. In the circumstances where, say, a photograph of your property has been used to promote an area or sales or lettings there probably isn’t any inference of endorsement. However a lawyer may take a different view.
Defamation would be an issue if a libelous caption was used. Other laws may be invoked if the photo is used to harass or threaten. But in general there is no restriction, else there could not be the millions of images of landmarks, architecture and tourist attractions. Basically, if it can be seen from the street it can be recorded and published.
Do photographers need to be ‘CRB/DBS checked’ to work with children?
Criminal Records Bureau [CRB] checks have now been re-named as Disclosure and Barring Service [DBS] checks. This procedure is designed for employers to vet prospective employees or contractors who may at some point have access to children in education and child care contexts. EG teachers, nursery workers, nannies, carers, childminders, doctors, youth workers, and service contractors working in premises where children are being cared for.
Very few photographers will need these checks, although specialist schools photographers contracted to LEA’s (local education authorities) are usually checked as a precaution by Councils. Unsupervised access to minors should never arise if staff are doing their jobs correctly.
To satisfy legal requirements and for their own protection from allegations of misconduct, photographers should be supervised at all times by DBS-checked staff when working with minors in educational and childcare settings. The legal requirement for DBS checking then does not arise.
Because DBS checking is a duty on employers there is no mechanism whereby self-employed individuals can obtain DBS checks for themselves. If it is really necessary your employer or client will have to carry out the check. It typically costs around £70 and takes 2-6 weeks. Furthermore DBS checks are not necessarily portable between employers or local authorities (acceptance is discretionary) and anyway expire after 2 years.
‘Police checks’ are often confused with DBS checks. Anyone can get a ‘police check’ done on themselves at a local police station, which costs a lot less and is faster but is not the same thing at all. A police check is a disclosure of criminal record, where DBS checking also discloses expunged offences and records of allegations and investigations that have not resulted in charges or conviction.
How can I determine whether I am on public or private land?
As you say, this is particularly relevant for places that appear to be public but have no signage to indicate it’s actually private land (e.g. London Eye, Canary Wharf, Trafalgar Square).
Unfortunately there is no simple answer. Sometimes there are clues, eg Bye Laws displayed in markets, parks, railway stations etc, but quite often there is absolutely nothing. Almost all of the UK is in private ownership, and some of that private land permits and encourages public access. Access is however a matter of discretionary permission unlike public Rights of Way [RoW] such as footpaths and roads, where of course you will be free to photograph until a policeman decides you are causing an obstruction or behaving antisocially. Access allows conditions to be placed on photography by the landowner where public RoW do not (except for statutory restrictions such as the Official Secrets Act). So if you want to be sure where you can take photos without some jobsworth telling you that you can’t, the question becomes ‘how do I find out whether I am on a public RoW?’.
Mostly it’s obvious, but when it isn’t the complicated and inconvenient answer is that local councils have a statutory duty to maintain definitive maps which show public RoW in their area, and you can ask their Rights of Way Officer for guidance. However, many councils are slow to update maps, and the information is not always totally reliable. I’ve found this particularly to be the case where the location of the ‘building line’ is concerned – the point where a public footpath shades into private property. It’s not unusual for one side of an adopted road to be public and the other private. Often nobody really knows, including owners, security guards and traffic wardens, and the answer is buried in the deeds in a bank vault somewhere. There’s also the complication that some RoW are evolved by usage over time, eg many rural footpaths have uncertain status. Nobody knows until a court decides.
Having said that, photography on private land to which the public have access is not prohibited unless there is a clear and obvious notice that prohibits it. It only becomes a legal problem if you disregard the landowner’s instructions or terms of admission that restrict photography, or flout normal expectations of privacy. Landowners have no rights to demand deletion of photos taken without permission, and no claims against your copyright unless they derive income from their own images of their property. They only have a right to demand you stop taking photos and/or leave their property, and to use reasonable force to eject you if you do not comply promptly.
Is it illegal to photograph someone’s pet ? And what if I post its picture on the net to try and find its owner?
There is no copyright in animals (although Patent law can apply to selective breeding and genetic modification, but you aren’t doing that). The pet isn’t going to sue ;-)
Whether or not you need the owner’s permission depends on where the photo is taken. In their home, where there is a reasonable expectation of privacy, you can’t take any photos without consent. In public places, or on your own property, I can’t see any basis for objection. A pet is the same as a car or other possession, here.
As far as displaying the photo on the web, it’s your photo, your right to do what you wish. I hope we are not going to start worrying about internet weirdos grooming pets.
Can my employer film or photograph me at work for “promotional use” without my consent?
There are gray areas here.
As the property owner they are free to consent to photography on their premises, which is how we all get to be on CCTV in shops and offices with no choice. Also you may only be filmed in circumstances where you do not have a normal expectation of privacy. It is likely they can film you in a normal working environment but possibly not in a rest-room or cafeteria and definitely not in a toilet.
However, although they can film you they may need your permission to actually use the film for promotional purposes. This may require a model release depending on the nature of the promotion. If you choose not to provide one the employer may be unwise to use the footage without risking being sued by you.
Taking part in promotional films is unlikely to be a term in your contract of employment so you may be able to argue that you are under no obligation to take part. If you are a union member, seek their advice on this.
Legalities aside, it’s insensitive bad practice for the employer to insist and will do nothing for your working relationship. It’s also self-defeating: if you’re unhappy you’ll look unhappy, and that won’t help promote anything.
Can I film police on private property?
This is basically two questions : can I film on private property? and can I film police?
All the reservations about photographing on private property apply, ie you may do so unless or until the landowner forbids it. Thereafter you commit a civil trespass. You also must be mindful of privacy issues and not photograph anyone where they might have a reasonable expectation of privacy. Please see other parts of this FAQ for more details. Police may well point out that you have no permission from the landowner to film. Unless you do, that’s a warning shot. Whilst it isn’t their job to uphold the landowner’s civil rights, if you persist they’ll likely view you as hostile and difficult – and find something else they can charge you with.
In general you have the same legal rights to photograph police as photographing any other citizen. However it often doesn’t work out like that because the police can always find a charge that can be applied and may result in the threat of arrest or arrest if you persist. Typically this might be obstruction of a police constable in performance of his duty, but there are other possibilities. This is a risk on the public street even for professional photographers carrying press cards. On private property, privacy and/or security issues may magnify the risk.
From this, for instance snapping away inside a police station or at a crime scene would be highly inadvisable without permission. Having said that, police are routinely filmed by CCTV within shops, whenever they arrest a detained shoplifter, so it’s very much a matter of context. Unless you have some overriding public interest reason or just like being locked in small windowless rooms for hours on end, we suggest you ask first.
Can I use a photo of a park on a book cover without obtaining permission from the council?
Check the park bye-laws. Most prohibit photography for any commercial purpose. However you are unlikely to get into any trouble, the penalty is usually about £5. If in doubt, check with the local council.
Should a subject be paid for photographs sold ?
It depends on the circumstances of the photography, the agreement (if any) made with the subject eg a model release, and the usage to which the photos will be put. Please read the rest of this FAQ to get an idea of the potential issues.
Can I put photos I take in public places on Facebook?
Photos taken in public places will normally be legally acquired, but what Facebook find acceptable will depend on Facebook’s peculiar ideas. Lately they seem to remove any photo of breast feeding or gay men kissing, whilst rejecting complaints about rape videos and bestiality.
My upstairs neighbor took pictures of me sunbathing in my backyard without my permission. Is this legal?
You have a normal expectation of privacy in your back garden. So no, your neighbour had no legal right to take such a photograph without your permission.
Does the subject of a photograph have an overriding right to ownership of that photograph?
Usually a subject will have no ownership rights over a photograph. As the author of the work you are the copyright owner unless you have made a contract with them that assigns copyright to them. However there are signficant limitations that apply to what you may do with the photograph despite ownership of copyright:
- Any photo that violates a subject’s normal expectation of privacy may be an offence under human rights law and/or data protection law.
- If commissioned to take a private portrait or other photo for personal purposes (eg weddings), you will be unable to publish without their permission.
- For certain types of usage you may require a model release.
- There are other legal limits on what you may do with the photo, eg defamation, harassment etc.
Can I take a photo of a private residence and use the photo in retail products? (no house # included).
Without knowing the specifics of the advertising or why you would want to do this, or why the houseowner might obect, it is impossible to say. But I assume you have taken the obvious step of asking the houseowner already and been refused? In which case offer them a fee or discount as an inducement. If that cuts no ice, "don’t" would seem wise. If the owner decides to pursue the issue you will end up enmired in litigation, with costs and stress out of all proportion to any benefit. Nobody can tell you with certainty how this will pan out. Bear in mind that 50% of lawyers are wrong in court, every day.
Is it legal to take pictures of girls feet with out them knowing?
Probably, but expect to spend a lot of time in the company of police officers who take a different view.
I have a number of black and white industrial images taken from public roadside. Can I sell them to commercial outlets?
Yes. There should be no problem at all with this:
- provided logos and registered trademarks are incidental inclusions, not arguably an infringing "copy". Some companies, eg Transport for London, are a litigious pain in the a*se over photos that prominently display their logo. But as far as I know they’ve never sued anyone, just written nasty letters.
- provided the public roads weren’t actually private industrial estates displaying ‘no photography’ signs. Even if they were, it’s a trespass issue that nobody is likely to bother about since no provable loss exists that could be claimed as damages.
The main thing you want to guard against is sale for advertising use that implies endorsement of an advertiser’s product by the company depicted in the photo. But that’s the buyer’s problem, not yours, so long as you don’t pretend there is a property release.
I’m a teacher. Is it legal to be photographed by a pupil whilst in school without my permission?
There are several issues here.
Schools are private property. It is up to the school’s owner or managing authority whether or not they allow pupils to take photos on their premises. However unless they notify the prohibition to pupils, it’s allowed. The school’s disciplinary code may have something to say, but there is no legal right to delete the photos unless written into the school’s contract with parents. Temporary confiscation of mobile phones is commonplace.
I doubt most schools do prohibit it. Photography is part of the curriculum at many, and corridors are often decorated with pupil photos of events. I frequently took a camera to school in the 1960’s, and my first ever publication was of a playground scene, in the school magazine. The headmaster likened it to a Lowry, which was the only nice thing he said to me in 8 years. It would be appalling if such things are no longer possible.
There is also a consideration of privacy, but you would find it difficult to argue that the classroom is a place where you have a reasonable expectation of privacy. In the staffroom or toilets would be different. CCTV is deployed in some schools, which makes the argument even more unlikely.
On the other hand, if the photos are defamatory, humiliating or malicious, or if the photos are uploaded to social networking sites such as Facebook, any defamatory use etc may be actionable. Given the public sensitivity surrounding minors you would probably find it easy to persuade the site owner to take them down rather than face a barrage of negative press. You probably don’t want to threaten a libel action against some kid’s parents, for much the same reason.
Can I publish on the web photos, including children, taken at a private party?
Photos taken professionally for private purposes inhabit a special category within UK copyright law. Although you will own the copyright, you have no right to publish without consent of the client. See s85 of the 1988 Copyright, Designs & Patent’s Act.
This applies to much privately commissioned work, eg weddings, social portraits and other private social events on private property. You must obtain the permission of whoever commissioned you before publishing on the web or elsewhere.
Pro’s need to be careful here, to avoid legal trouble from aggrieved clients who believed their photos were private. Often pro’s T&C’s specify that publication for portfolio and promotional display are contractually agreed with the client.
You don’t need formal model releases for guests, whether adults or minors unless you will be using (or selling as stock) the photos for advertising that implies endorsement. In practice it’s wise to make sure all guests understand that you are taking photos that may be published, and given the chance to say ‘no’. It often isn’t feasible to run around asking every individual, but either an announcement by the host, or a poster, works well enough. If anyone objects, smile and let them be. Most will be anxious to see the photos, and will want to know when and where they will be displayed.
Children have no special rights, but it’s wise to not identify them by name or location because of the "rights of the child" under the Children Act. Please see elsewhere in the FAQ for more guidance about photographing children.
Can I photograph on public rights of way without permission?
I assume you’re asking about public Rights of Way that cross private land. In general yes, you can film/photograph the surrounding private area, but there are a few things to be aware of. First that standing still or erecting a tripod can be considered an obstruction, for which you can be arrested by police, so try to avoid that. Second that National Trust, has sought to prevent commercial photography of any of their land, flora and fauna, or properties, from public Rights of Way (with no valid legal basis that we can see, just an irrelevant bye-law against hawking for trade). Third, that considerations of privacy may apply. You cannot, for instance, photograph through a window into a house interior to obtain a photo of someone.
Can a shop display a picture of my 13 year old son, who has been banned?
The shop owner is likely to be within their legal rights to do this. As the property owner, the shop owner has a right to photograph anyone on their premises unless they are in a situation where they have a normal expectation of privacy (eg in a lavatory or changing room).
To comply with Data Protection law camera surveillance does requires a notice informing customers, so that is one thing to check (see the ICO code of practice for more information).
Minors generally have no special rights (but see elsewhere in the FAQ for exceptions).
The most questionable issue is whether the owner has it on display for vindictive reasons or simply for staff guidance. If she has captioned it as "banned", or is telling customers the lad has committed some offence when he has not, then defamation may be occurring. However, proving this is likely to be difficult and taking any legal action likely to be far too costly to contemplate.
Law is not often much help in minor antagonistic situations like this. The best approach would be to try and resolve the problem by negotiation. If your son offended her, point out that he and you are embarrassed by the photo, try and get him to say apologise in person for whatever he did (a good lesson in responsibility), then ask her to be generous. If after all that the owner doesn’t respond favourably, then you have established they are being vindictive and it may be worth getting a solicitor to write to them. Using a different shop will generally be cheaper.
Can my employer film me without my consent and use the film in a disciplinary proceeding against me?
There are two aspects to this. First, whether your employer has a right to film you without your consent (although check your contract of employment, you may find you have consented to any monitoring or recording as a condition). The answer is basically “yes”. As they are the property owner they can film anyone they wish on their premises, except in circumstances where there is a reasonable right to expect privacy. This would preclude them filming you in a toilet or restroom, perhaps even a staff canteen, but not otherwise. Almost every mall and shop uses CCTV without asking permission, and this is basically the same (CCTV has a legal requirement for a notice informing people of the monitoring, but this does not apply to ad hoc photography).
The second part is whether the employer can use the film as evidence. I can’t think of any reason why not.