How do I copyright a photograph?
I get this question about once a month. That one is pretty easy and straightforward. When you focus your camera, set the exposure and depress the shutter release, you own that photograph. That’s the general rule; copyright begins at the time of creation. If someone wants to use your photo, technically, they have to secure your permission before using it. This has been the case internationally since the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention (UCC) of 1955.
Sounds great doesn’t it? I wish it worked.
Copyright for images is one of those things which does not seem to be taken seriously by both the consumer and the law. In the age of digital communication, it is far too easy to right click and save a pretty photograph for a collection or repost to a website. In some instances, such as Facebook, it is encouraged and expected. Photographers promoting their skills and images enjoy the exposure and encouragement (or criticism) from the multiple viewings of their creations.
However, photographers take a big risk when posting their images online. Facebook, contrary to public perception, does not assume the copyright of your images and make it their own. There have been a few instances of Facebook taking a user’s images and inserting them into advertising campaigns without permission and has suffered grief through member backlash. Other websites have pulled the same stunt and taken abuse.
The problem comes in the form of other artists and the courts slowly eroding the intellectual property rights of images. Take the case of Selena Mooney. Ms. Mooney promotes her photos, under the screen name of Suicide Girls, for sale on Instagram in the form of inkjet on canvas. Ms. Mooney has made an investment in time, education, equipment, travel, and hiring models in creating original work. By definition, she is the copyright holder.
Enter Richard Prince. Mr. Prince is a very controversial figure in the high-end art community. Mr. Prince cruises social media looking for images and takes screen shots of what he finds. These screen shots are then blown up using relatively inexpensive software, printed on canvas with an inkjet printer and sold at upscale New York galleries for upwards of $90,000 each. Mr. Prince and the gallery owners pocket all the profits.
Richard Prince admits he knows very little about photography.
Richard Prince came across several of the Suicide Girls images and pulled his usual stunt of reprinting her images and placing them up for sale. The only concession he made to his version of art was to change small parts of the associated caption and jump the price up about 10,000%. No other changes were made. Ms. Mooney didn’t even get credit for her work in producing the image. In 2014 Richard Prince, in association with the Gagosian Gallery, sold 38 images at $100,000 each during the Frieze New York Art Fair. Some of the images were Ms. Mooney’s.
This is not a new thing either for Richard Prince. The 65 year old “artist” has been re-photographing images since 1975. He has re-photographed at least 4 images that appeared in the New York Times. In 1983 he appropriated Garry Gross’s photograph of of a ten year old Brooke Shields standing nude in a bathtub as part of a compilation under the name of Spiritual America.
In December of 2008, Richard Prince and the Gagosian Gallery were sued by photographer Patrick Cariou over the appropriation of 35 photographs. Prince changed several of the images; some 28 of the photographs were made into paintings. All of the images were taken from Cariou’s book Yes Rasta.
Initially the courts ruled against Richard Prince and the Gagosian Gallery. The courts ruled that the appropriation of the images was not fair use (Richard Prince’s defense) and constituted copyright infringement. The ruling lasted about 2 years when the Court of Appeals overturned the verdict stating Richard Prince’s work was transformative. In the case of Ms. Mooney, the changes amounted to editing the Instagram caption. Nothing more.
The court ruled that Mr. Prince added substantial value to the original and therefore is considered transformative. Was the simple act of associating his name with the images enough to add value?
Prince won his legal battle because he is very rich and his lawyers took advantage of the ambiguity of existing copyright laws concerning fair use. Fair use is difficult to define and often is considered by the courts on a case-by-case basis. What appears as out and out plagiarism to a photographer can be turned around when argued in a legal context. But then, you know… Money. Prince and Gagosian Gallery could pony up for a high-end copyright attorney. Ms. Mooney most likely, could not.
Then there is the perception of photography. I can’t begin to count the number of people who think anyone can take a photo and that getting a good photo is a matter of luck. The years of studying art and composition, investing in cameras, lenses, computers systems and components, printers and high-end media, then applying these acquired skills are just a matter of luck. What is not considered is the location hunting, shoot planning, booking airfares, stomping across cities and rough terrain, sometimes risking life and limb, as well as the hours spent in post processing. The harder I work, the luckier I get.
Tom Wolfe’s book, The Painted Word, covered the world of modern pop art and according to the pop art community, if you can tell what a piece of art is, that is not art, but journalism. So in the eyes of the art community, photography is journalism. However, take that photo, glue it to a frame, splatter it with paint and a few blasts from a shotgun and then… maybe.
The international issue is something to contend with as well. Does an Italian court consider a photograph taken of a Japanese shrine by a Los Angeles photographer worth the courts time and effort? Does the photographer have the resources to pursue his legal rights in a foreign country where the law is already mostly ignored? It’s hard enough for a photographer to get paid let alone keep someone from selling their work on Etsy or Amazon.
There are ways of making it harder for someone to take your images and the most obvious is simply not putting them up on the Internet. For some professional photographers that is not an option. You have to promote yourself and your skill set and the Web is the go-to place for advertising. But once you let it lose in the wild, it’s out there. It would be easier to get pee out of a swimming pool if you change your mind.
Start with your camera. Many prosumer camera systems have the ability to embed metadata into the image. Your name, the date and time, and if GPS capable, even the location can be saved. Of course this can be stripped out of the file, but it is a start.
Then you can add your signature to the image. I am sort of loathed to do this as I feel a bit narcissistic when I do it, but I have to stake out my claim. Again this can be edited or cropped out of a photo. A watermark type imprint in the center of the image is another way and is fairly effective, but I find this distracting. I enjoy my photos and want others to enjoy them as well. I don’t want to distract from what I have done. Your decision.
Reducing resolution is a good way of protecting your images. I mostly throw my images up at 96 dpi which makes for a rather lethargic image when printed. This is good, but here is also software that can create larger images from small resolution photos with a few clicks.
Shoot your images in RAW format. If it comes down to showing your ownership of an image, having the RAW file on hand is going to go a long way towards proving it. Saving any Photoshop PSD files with the edits is a great idea too.
If you find your image on a website without your permission, send a friendly email to the webmaster. Thank them for their admiration of the image, but ask for them to take it down… or maybe give credit and add a link to your own website. This will be ignored about 50 percent of the time, but it is a start. If you still feel the need to push for your rights, it’s time for a cease and desist letter. Find out where the brick and mortar site is and send it registered mail. if all this fails and you got the resources, time for a good attorney. Otherwise, you might have to suck it up.
If someone is selling your images as prints… well, you just have to look to Ms. Mooney’s solution. I hope there are a few BoHo Tech Slackers who are looking at their $90,000 prints and thinking about the $8,9910 mark up they paid.
Happy Autumn to everyone out there. And to my Australian followers, Happy Spring.
The Digital Lens 
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