Photos, Intellectual Property Rights and Social Media

Originally posted 2018-11-19 11:20:30

By Gabrielle Sherwood | Editor: Tikwiza Nkowane |

When people take pictures, the focus has always been on their looks and the quality of the picture. To a large extent, one may assume that people do not even question the ownership rights to those pictures unless an issue arises that turns into a lawsuit.

Issues of ownership and property rights are gradually becoming a popular topic among business owners as risks of lawsuits and legal action are on the rise. With nearly every modern mobile phone having a camera, taking photographs is now easier.

In the United States, images and photos are items of Intellectual Property; thus, the photographer is automatically regarded as the owner of the images even if he or she is not present in the photographs. Under copyright law, the owner of a photograph has exclusive rights to that photograph. The only condition where this might be different is when the person taking the photograph is an employee and is using their employer’s equipment. The employer may choose to give unlimited license rights to the photographs to whoever originally made the request for the photographs.  However, the photographer remains the legal owner of the resulting photographs.

Pictures used on social media platforms like Instagram have become extremely popular, with Instagram boasting over 800 million current users. When someone uploads a photograph to Instagram, do they still own the photograph? The answer is yes. When users upload a photo to Instagram, they do not lose their copyright entitlement. However, Instagram’s Terms of Use gives the social media platform a non-exclusive sub-license to use the uploaded content. More simply put, Instagram can license photographs from the site to others without there being any copyright infringement. This is something to keep in mind, as many people use Instagram as a platform to promote their businesses.

It is also important to note the applicability of the Fair Use doctrine. This doctrine permits the limited use of copyrighted material without the need to first acquire permission from the copyright owner.  The Copyright Act provides the statutory framework for determining whether an activity is a fair use. Common examples of activities that may qualify as fair use are criticism, comment, news reporting, teaching, scholarship, and research.

If a matter is in court for an alleged copyright infringement, the courts will balance multiple factors in order to determine whether the alleged activity was fair use. This means that when a photographer takes a picture, and another person uses that picture, the user can argue fair use.  For example, if the photograph was being used in a school to teach children, then such activity may qualify as fair use. Courts evaluate fair use claims on a case-by-case basis. The Fair Use doctrine is an affirmative defense which means the user will not be liable for copyright infringement if it is deemed that their activity was in line with the doctrine.

Creative Commons is a United States non-profit organization devoted to expanding accessibility of creative works. The organization has released several Creative Commons licenses.  These copyright licenses are available free of charge to the public. The licenses allow creators (like photographers and graphic designers) to designate which rights they reserve, and which rights they waive for the benefit of recipients or other creators. It is important to remember that Creative Commons licenses do not replace copyright but are based upon it. The Creative Commons licenses replace individual negotiations for specific rights between copyright owner (the licensor) and the licensee. In essence, this results in a low-cost copyright-management system, benefiting both copyright owners and licensees. Creative Common licenses are something that photographers should keep in mind when conducting business.

Below are a few tips to keep in mind if you are interested in the ownership or rights of pictures you have taken:

  1. If the pictures are taken at an establishment such as a photo studio, always ask the photographer about the specifics of legal ownership before continuing with the transaction.
  2. Although it is suggested that individuals sign contracts with photographers, it does not always happen. But in doing so, seek advice from a lawyer.
  3. When negotiating a contract with a photographer, make sure that an intellectual property provision is included. A good lawyer will be able to advise you on all the legal issues surrounding ownership of a photograph.

Remember that copyright exists the moment something is put into a tangible form.  Always seek advice from a qualified expert if in doubt as to who owns what rights in the product you seek to reproduce or use.  Furthermore, remember that there is the fair use doctrine that can assist you greatly when using material that is copyrighted.