Business + Marketing

6 Lame Copyright Excuses Photographers Should Watch Out For

August 17, 2018

By Aaron M. Arce Stark

Photo © Ethan Yang Photography

If you’ve recently sent out cease-and-desist letters for your copyrighted work and received any of the following responses, rest assured knowing that none of them will stick in a court of law.

I didn’t know it was copyrighted—it was all a mistake or misunderstanding.

Ignorantia legis neminem excusat, or “Ignorance of the law excuses no one.” When people say things like, “I didn’t know it was illegal to copy your photo,” or even, “I didn’t know this photo was copyrighted,” you can be assured that these are not legal excuses. What’s more, copyright is a strict liability civil offense, which means that you are still liable even if you didn’t know you were infringing. All copyrightable images are protected from the moment they are “fixed in tangible format” or, for photographers, the moment the shutter clicks. It does not matter if a photo contains the “©” symbol; all photos are protected by copyright unless they have passed into the public domain. However, if your photo does contain a notification of copyright (i.e., the © symbol or even the word “copyright”) then any infringements are considered willful and subject to extra statutory penalties.

I didn’t post the photo; someone I hired did.

Respondeat superior, or “Let the master respond.” When you hire someone and they do something illegal, you are generally responsible for that illegal act. There is plenty of room for nuance in this rule, but generally, if you supervise someone, you are responsible for their infringements.Even if you didn’t directly tell them to copy someone’s photo, you still had the power to tell them not to. If you have the power to stop an employee from infringing and don’t, then you are probably responsible for that infringement.

The photo was in the public domain.

If it’s a photo you took, it’s not in the public domain, if only because you are still alive. Copyright terms last for the life of the author—that’s you, if you took the photo—plus 70 years. Images do not fall into the public domain until after this term has expired. Charles Dickens books and Vincent Van Gogh paintings are safely in the public domain, for instance. There are, of course, some nuances, and copyright terms can be different if the author of the copyright is a corporation (since corporations do not grow old and die like humans, it doesn’t make sense to attach copyright terms to their lifespan). In general, though, if you are alive enough to be upset that someone has used your photo, your photo is not in the public domain.

It was fair use because I only used part of the photo.

Fair use is a tricky, slippery, fact-based distinction that can only be made by a court, and when it determines whether a use is fair, it will ask a number of nuanced questions: What is your purpose in copying this image? Is it for art, or for news, or for education? Have you copied the whole image, or the “heart” of the image, or just small, tangential parts of the image? Will your copy prevent the original author from making money from their work? Was the original work meant as art or news, or something else entirely? The court understands that when you author a copyrighted work, you are entitled to receive the profit stream from that work. When someone copies your work and steps in front of you, catching profits that should be yours, then their use is not fair.

I hired the photographer so I own the photos.

If the photos are works made for hire, then yes, you own the photos. But if you hired someone to take photos without signing a contract that specifically states that the photos will be “works made for hire,” then you do not own the photos. Works made for hire must be specifically contracted, and if your photographer didn’t specifically state that they would take the photographs as works made for hire, then your photographer owns their photographs. Just because you hired a photographer does not mean you own the photos.

I gave credit to the photographer and took it down when asked.

Stopping an infringement is not the same as not infringing, and mentioning someone’s name while infringing their work doesn’t mean you aren’t infringing. Imagine trying to walk out of an art gallery with a painting under your arm—saying whose painting it is doesn’t change the fact that you’re trying to steal it, and offering to give the painting back when confronted doesn’t change the fact that you tried to steal it. Most copyright holders will choose to forgive and forget if a small-time infringer takes down the infringing work. However, if your infringer is a corporate entity that should know better, don’t be afraid to press them on the issue and pursue legal action.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Stark.Law LLC.

This article is for informational purposes only. Contact a lawyer for legal advice.

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