Hey, Thats My Photo! The Importance of Owning Copyright.

*THIS BLOG DOES NOT CONTAIN LEGAL ADVICE AND SHOULD NOT BE TAKEN AS SUCH. THIS DOES NOT COVER ALL ISSUES RELATING TO COPYRIGHT AND FURTHER ADVICE SHOULD BE SOUGHT FROM A LEGAL PROFESSIONAL ON THIS ISSUE*

Wait….thats me! Thats my photo!

I often have sex workers come to me, telling me that their photos are being used by other sites or other people (sex workers and others) to promote services either related to sex work or unrelated to sex work. It naturally upsets the sex worker. The power of an image is incredibly important and sex workers pay considerable amount of money for photographers to take photos of them. A photo can attract a client in an instant – and when that photo is being used by another person, then that can lead to all sorts of legal issues.

Today, I am going to focus on the copyright issues involved (and leave aside the issue of misleading and deceptive behaviour for another occasion).

What Is Copyright?

Copyright is a legal right created by the law of Australia (and other countries), that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time, with the intention of enabling the creator (e.g. the photographer of a photograph or the author of a book) to receive compensation for their intellectual effort. In its non legalistic form, relating to this particular topic, copyright is the right to copy or reproduce an image. In the legal sphere, we call it “intellectual property rights”. When you “own” copyright, it gives you the exclusive right to:

  • reproduce the work in a material form
  • publish the work
  • perform the work in public
  • broadcast the work
  • cause the work to be transmitted to the subscribers of a diffusion service (for example, sent by email)
  • make an adaptation of the work.

What is a Breach of Copyright?

A breach of copyright is when someone takes that original work and uses it without the permission of the person who created that image. This occurs when, for example, you see your photo on another escort directory, being used by another sex worker. Its a breach of copyright and you have to decide whether to take action or ignore it.

What Can Be Done About It?

The biggest problem that a sex worker faces when her image is being used by someone else is that the sex worker actually doesn’t own the copyright of the photo. Usually, unless you have entered into an arrangement with the photographer who took the photos that suggests otherwise, the copyright actually belongs to the photographer who took the photo. So when you find that you have had your photo “taken” from you, you need to go to your photographer who took the photo and ask them to enforce their intellectual property rights by contacting that person who is using the photo to cease doing so as its a breach of copyright. The photographer would then need to go and seek further legal advice about their prospects of running a claim against that person for such breach.

Is A Photographer Going To Do This?

I haven’t spoken to many photographers in the industry as yet (I fully intend to do so) but if you can imagine the sheer number of photographs that a photographer takes and the sheer amount of copyright that would be owned by the photographer, the photographer would be inundated with clients demanding that they pursue breaches of copyright. I am guessing that photographers would generally resist in getting involved in numerous legal claims that they need to pursue for sex workers (or any client of theirs for that matter). They are unlikely to involve themselves in copyright claims because it would cost them legal fees – and time. The ripping off of images happens so frequently that the photographer would spend more time defending copyright than actually photographing and you can see why a photographer would be somewhat disinterested in helping out (I do note this is just a general statement and I am not suggesting that ALL photographers won’t care about the breach of copyright – so if you are a photographer, please do not think I am assuming that you would take a “I don’t care” attitude – I’m just pointing out the commercial reality of defending breaches of copyright).

So What Can Be Done?

Start having a discussion with your photographer about assigning the intellectual property rights over to you, as part of the package that you buy. If there are any photographers reading this, i would be interested to know how you feel about this. If photographers are not comfortable with assigning all of their intellectual property rights over to their client, then there can be steps legally (which is where I, and fellow lawyers, can help). For example, you can enter contractual arrangements with photographers to hand over (assign) the copyright of the photo over to you, but you can still license back certain rights to the photographer for that photographer to continue to use the photos for any promotional work they would like to do, to use in their portfolios, or to publish on websites and other places.

Some Helpful Hints In The Meantime

  • keep your eye out for any use or reproduction of images by other sites;
  • if you see other sex workers’ photos being used, immediately inform the sex worker whose photo has been taken, that this has occurred so that the sex worker can then decide whether she should go to the photographer and ask the photographer to take action;
  • Think about asking the photographer you are working with to assign copyright over to you and then license it back to the photographer to allow continued use by the photographer.
  • ALWAYS read the terms and conditions of websites before uploading photographs on to them. You may find you are giving away intellectual property rights that you do not want to be giving. If you have concerns or you can’t understand the clause about intellectual property, come to me and I will explain what the clause is effectively trying to do;
  • If you are a website in the industry, be it an agency, escort directory or just a promotional website, be fair with your intellectual property terms. Come to me if you need advice about how to deal with intellectual property and what you can or should expect sex workers to agree to. Now that I am raising the issue, sex workers are now going to become more astute about their intellectual property rights (I hope) – so get ready to explain yourself if you are trying to push them into oppressive intellectual property rights clauses.
  • If you are a website that hosts sex workers’ pictures and you put “verified authenticity” on it – and later on down the track, it is found that the photo actually isn’t authentic, you’re in the firing line for a misleading and deceptive conduct claim by a consumer regulatory body in your State (or federally, the ACCC) – but that will be for another blog.

As always, if you have any further questions or you would like to talk about this issue with me, please do not hesitate to contact me. If you are in the industry and you have an opinion on this – make it heard! The more we talk about this issue, the more informed you become about your legal rights.

Til next time,

KVA

@KVALEGAL

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2 thoughts on “Hey, Thats My Photo! The Importance of Owning Copyright.

  1. Don Quixlong c/- Punter Planet or Twitter says:

    Excellent intro to to copyright concepts Kate.

    If I may extend Kate’s piece – People, if you are commissioning a professional photographer (or any photographer for that matter), here are my golden rules.

    1. When you agree to pay the photographer for their skill, you want the right to have exclusive use of the resulting photographs. Payment may be based on a combination of the number of photographs taken or time spent, and on the number of photos you choose to buy. When you buy the photos make sure that the photographer “assigns” (ie sells) their copyright in those photos to you. The remaining photos belong to the photographer, unless you agree up front that copyright in every picture will be assigned to you.

    2. Don’t forget to include the photographic medium used, ie the negative, the slide film or the digital image. Ensure that these are included in the deal and are given to you. If the source images remain with the photographer, odds on they have retained copyright and your images may be sold elsewhere.

    3. If a photographer wants to retain a right to use your image, be clear about who owns the copyright first. If the photographer does, then you have no say. Just imagine your image being used to sell a very popular and high worth product and you get nothing for it, except maybe some kudos for being the model. But, if you own the copyright, you have a say in how your image can be used and what sort of royalty you ought to be entitled to.

    4. If your photographer won’t assign copyright to you, you’ve probably chosen the wrong photographer. Not necessarily a bad photographer but one who has a huge reputation as a photographic artist who makes a lot of money from the photos they take through exhibitions, publishing books of their photos etc. (Think Anne Geddes, for example) If you’re happy with that sort of photographer and the potential model exposure, then go for it. Otherwise, choose another photographer who is happy to take photos of you for a price and hand over their work to you.

    5. Always ask to see examples of the photographer’s portfolio so that you have an idea of the quality of their work. This is also an example of where you might give the photographer a specific licence to use your images in their portfolio, and only in their portfolio.

    6. Make sure you have your agreement to the above issues in writing signed by both parties and DATED. You would not believe the number of agreements I see that are signed but undated.

    Don Q.

    Like

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