Photographer’s Image Rights Protection in the Age of Instagram

Posted on:6 August 2020

Author:daphneelucenet

Category:English, Photographers

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Anyone hoping to make it big as a photographer today is faced with an unfortunate paradox: in order to get to a level where you can land prestigious editorial and advertising commissions, you’ll need to upload your work to the internet and get it seen by as many people as possible; at the same time though, any images you put onto the internet are at risk of being used without your permission, potentially depriving you of much-needed income.

As a photographer, how can you balance the conflicting needs of promotion and image rights protection? Is it better to keep your photos offline and try to control who can and cannot view them? Or should you throw all caution to the wind and let everyone have access to your work? And what’s the best way to protect your photographs from being used without your consent once they are online? This article considers the issue of photographer’s image rights from a fashion industry perspective.

The Paradox of Promotion

If you’re hoping to appear in the pages of Vogue, or shoot campaigns for LVMH-tier brands, the quality of your work is paramount. But no matter how good you are, you need to get your work seen by these clients in the first place. And the reality today is that you’re unlikely to get to the level where you can land high-profile commissions if your work isn’t regularly shared on social media.

Indeed, like it or not, your importance as a photographer can largely be gauged by how often your work is shared online – whether this is on social media or elsewhere on the net. Of course, some photographers are much more talented at getting themselves shared than they are at taking photos, but that’s just the way it goes. Unfair? Maybe. But if you don’t like it, the only solution is to learn how to get your work shared more often than them.


Of course, if you’re already relatively successful and have the connections, you or your agent can just call up Condé Nast to arrange a meeting with Vogue’s editorial team. But even if you manage to speak to the Art Director or Fashion Editor personally, if these people don’t already know who you are, the first thing they’re going to do is look for you on social media. At which point they better see an impressive number of followers, or they’re unlikely to call back.

And where do all these followers come from? Well, obviously a great many come from seeing your work shared by others online and clicking though to the original source. Indeed, if you are “already relatively successful and have the connections” then this is probably because you’ve previously done lots of hard work promoting your photography on social media.

So it’s kind of a chicken-or-egg situation: if you are already successful, you don’t really need social media (or at least not to the same extent as someone who is just starting out); but in order to become that successful in the first place, you’ll probably need to be very active on social media.

Copyright Infringement or Free Promotion?

Until very recently though, the problem of a photographer’s work being used without permission was only of real concern to those at the start of their career. I.e those with less power. Even today, if you are a well-established photographer shooting campaigns, lookbooks, or social content for high-paying brands, the fact that your images circulate in digital form without your permission is unlikely to cause you too much lost sleep.

For a start, if the photos are from a commissioned shoot, you will have already been paid by the client for producing the work. If anything then, it’s the client who should be upset about the infringement of copyright. Yet, as it’s effectively just free advertising, in practice few clients will complain.

What’s more, 99% of the people posting photographers’ images online without permission are just small-time instagrammers and bloggers. For a photographer at the level of, say, Alasdair McLellan or Viviane Sassen, this is not worth worrying about: the bloggers were never going to pay these photographers any money anyway – quite simply because most of them don’t have any money to spend. In any case, if the bloggers couldn’t use these particular photos they’d just look for another free solution. But it’s highly unlikely they’d ever purchase any photos – from McLellan, Sassen, or indeed anyone else. In effect, then, the photographers have lost nothing here.

In short, if you are really successful, not only do you not need social media as much as other photographers, but even the fact that people use your images without consent is unlikely to make much difference to you financially. Indeed, one photographer’s copyright infringement is another photographer’s free promotion.

However, it’s all very well saying that anyone who shoots billboard campaigns for Fendi or Chanel isn’t going to worry too much about their images being distributed for free on Instagram, but the fact is that most of us aren’t shooting billboards for Fendi and Chanel. And if you’re just starting out in your career, the majority of opportunities you’ll have for earning money from photography will be on social media. Here things start to become a little more complicated.

Changing Times

What’s more, in recent years the old methods of fashion advertising have become less and less effective. Long gone are the days where a brand could pay for a few double-page ads in the major style magazines, lend their products out for editorial shoots, and expect to sell their collections. With the rise in importance of influencers, the big money has moved onto social media. This means that even some well-known photographers now feel that they are losing income due to unauthorized use of their work online.

As case in point, a couple of years back a group of established street style photographers banded together under the #nofreephotos hashtag to make a stand against influencers using their photos without permission. What vexed these particular photographers was not that their images were being shared, but that this was being done by people who, in sharing the photos, earned large sums of money for themselves – yet paid nothing to the creators of the images.

The individuals in question were well-known influencers who collect high fees from brands for showing photos of products to their followers. Rather than going through the hassle and expense of commissioning a photographer to shoot photos of them wearing sponsor’s products, some of these influencers saw a nice cheap shortcut to fulfilling their contractual agreements with brands by grabbing photos of themselves they’d found online – for example, photos taken by street style photographers outside runway shows. They would then repost these images, thus earning considerable sums of money from their sponsors, but without passing any of the earnings on to the photographers who created the images.

There have even been some rare cases where unscrupulous brands in countries without strict copyright laws have downloaded photographers’ images from the internet and used them in billboard campaigns without permission. There are two possibilities here though: either the photographers in question were reckless enough to upload high-resolution files to the internet unprotected, or the shady brands were happy to print their huge posters from low resolution JPEGs. In the former case, the photographers should have known better. In the latter, the results can only have looked dreadful, as printing something as big as a poster from a small file suitable for viewing online will have resulted in extreme pixelation.


Of course, no photographer would want their work used in such a disrespectful manner. But perhaps the victims here can take a little solace from the fact that the resulting pixelated billboards likely did very little to improve the public image of the guilty brands. Indeed, quite the contrary.

Shifting Boundaries

Clearly then, the real issue is not people using your photos without your consent, but the way in which they use them, and for what purpose. Having your photos seen: good. Having your photos used by others to make them money while you struggle to pay the rent: not so good. It’s one thing if a small-time blogger uses one of your images to illustrate a post that will earn them precisely nothing, but entirely another if it’s a big company raking in a fortune off the back of your hard work.

While this may seem pretty straightforward, the problem is that the line between commercial and non-commercial usage has become less clear today than it was even a few years ago. For a start, it’s no longer just about major brands; now even lone individuals can earn large sums of cash merely by sharing photos. Yet in such cases it may not be obvious to viewers that a financial transaction has taken place behind the scenes: unless you know for sure that a particular influencer has a deal with the brand in question, how can you be certain that the influencer received money for sharing one of your photos?

Solutions

What steps can you take to secure your rights as the creator and copyright owner of your images? If you’re going to get anywhere in your career as a photographer, you will need to put your images on the internet. Should you just accept that some people may use them without your permission, and live with it?

Well, to a certain extent, yes; if you want to lead a happy life, it’s not worth stressing out over a few bloggers or instagrammers sharing your photos without your consent. Of course it sucks not to be asked, but not half as much as the agro of constantly having to chase people to confront them about using your work.

In any case, as we’ve already noted, having your work shared is free promotion. And thankfully, many of those who will use your photos without permission will at least have the decency to credit you as the author, and provide a link back to your Instagram account or website. If that’s the case, then it’s probably better just to look on this as part of the process of making more people aware of your work and forget about it.

More irritating though are those people who don’t bother crediting the owner of the photo. If you really want to track these people down, and demand that they stop using your photos, it’s of course entirely your right to do so. In this case you can either do a Google reverse image search, or use something like the Firefox add-on Who Stole My Pictures? to find out who the offenders are.

https://addons.mozilla.org/en-US/firefox/addon/who-stole-my-pictures/

In most cases it will be sufficient to ask anyone using your photos without permission to either credit you as the author or remove the picture(s) from their site. If the photo is on Instagram, a simple comment underneath such as “Hey, I appreciate you using my work, but it would have been nice if you could have credited me” will usually do the trick. But if the usage is particularly extensive, or the offending blogger doesn’t respond to your friendly request, you may want to make it clear to them that you will resort to legal action if they don’t comply.

If the guilty party ignores you, and you decide to go the legal route, the next step will be a DMCA takedown notice. Again, while it’s your right as the copyright owner to issue a DMCA takedown request, you’ll need to decide for yourself if it’s really worth the hassle of doing this for every photo used without consent. If you are a busy photographer – at any career level – you will likely have many better things to do with your time.

https://www.dmca.com/faq/What-is-a-DMCA-Takedown

Of course, everything changes if somebody is clearly making serious money by using your photos without your consent. At this point legal action looks a lot more justified, and, perhaps more importantly, worth the investment of your time: if only to make the point that you will not sit by and let people take advantage of you. As we’ve said though, the first difficulty here is  establishing that money is indeed being made.

Prevention Better than Cure?

But rather than chasing people who’ve used your images without permission, surely the best solution is to stop them from using them right from the start? Lots of photographers add digital watermarks to their photos to discourage illegitimate use. Why not add a watermark to all the images that you put online? This way, even if your work is stolen, at least your name is written on it so that viewers know who the author is.

Well, yes, you could do this. But if you’re just going to ruin the look of your photos by putting tacky watermarks with your name over the top of them, then perhaps it would be better not to put your photos on the internet at all.

Watermarks look cheap. And you may have noticed that most photographers who resort to this technique are either extremely commercial, or evidently not all that concerned with creating an impression of high quality and sophistication. It might be OK for a small-town wedding photographer, or someone who shoots product photos for Amazon, but it’s not OK for you. This is not meant as a criticism of wedding or product photographers – who are pitching at a very different market – but if your goal is to appear on the pages of Vogue or similar publications, you certainly won’t get there by adding kitsch graphics to your photos.

What’s more, in most cases removing a watermark with Photoshop’s clone stamp is a quick and easy task. So if someone really wants to steal your photos, a watermark likely won’t stop them anyway.

At the end of the day though, getting your work shared online is more a goal to be actively pursued than an annoyance to be resisted. Indeed, it’s just one of the responsibilities you’ll need to face if you wish to make it as a professional photographer today.

It can help to look on the matter more philosophically: if emulation is the greatest form of flattery, then having your work shared online surely isn’t far behind. After all, nobody bothers to share photos they think are boring. Just bear in mind that it’s only flattering if you’re being given due credit for your hard work. So make sure that anyone sharing your photos also makes it totally clear who created them.

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