Join Carolyn E. Wright for an in-depth discussion in this video Understanding licensing and contract agreements, part of Photography and the Law: Understanding Copyright.
So, let's say I put something out there. And, somebody sees it and wants to use it on their coffee mug or what, whatever. And, they contact me and say, I want your picture. What do I do? Speaker 2: It's very important, when you are authorizing someone else to use your photograph is to prepare a license for it. And, as long as it's not an exclusive license, meaning some company wants your photograph and they don't want anybody else to use it. That's called an exclusive license. It's exclusively for that client. That has to be in writing. Speaker 1: Okay. Speaker 2: But, it's always good even if it's a non exclusive license to put, your license in writing, just so that there's just no confusion whatsoever.
I even tell photographer clients, look, just put it in the email. Even if you've told your friend that, yes, you can use this photograph on. On your T-shirt or a magazine, whatever to follow up with an email to say this is to confirm what the, what the terms of the license are, and how you can use the photograph. And I always say well, a lot of photographers, like I don't know what to say, how do I write a license? Whatever to do, well go. Speaker 1: Need to be in Latin or anything like that. Speaker 2: Right it's, it's not that hard, I, I just say go back to your training in elementary school when you were writing about a subject.
It's who, what, why, when, where. Speaker 1: Mh-mm. Speaker 2: That's all you have to do with a license. Who gets to use it? What do they use? Why are they using it? Where are they going to use it? When are they going to use it? If you think about those, those conditions then, then it's very easy to write a license. And then you can also say, all rights reserved, meaning if I haven't told you that you can use it, on this magazine. If I told you you could use it for the September issue, but I didn't say anything about the October issue, that means that those rights belong to me.
Speaker 1: Okay. Speaker 2: I'm only giving away a small piece of the pie. Speaker 1: So, I do want to if I am giving something for a one time use thing, I want to say all rights reserved? Speaker 2: Sure. Speaker 1: Okay. Speaker 2: There are all other or all other rights. Speaker 1: Okay. Speaker 2: And frankly I've given lots of licenses to friends. Speaker 1: Okay. Speaker 2: And even when I'm not charging them for it, I will tell them here you can use this photograph for this purpose please let me know there is any other way she would like to use my photograph. Speaker 1: Okay. Speaker 2: That's another way of saying all rights reserved. Speaker 1: Okay, okay. If send them an email do I have to have, how do I approve that they got it or agreed to it am I, I ask for response of some kind or? Speaker 2: It's always good when you are giving a license to someone, to ask them to sign it.
To say, yes, I saw this, I understood it, I agreed to these terms, so that they can't say in the, in. If they infringe on your photograph, they can't say I didn't know. I had no idea. Speaker 1: Okay. Speaker 2: I didn't see this. So, it's nice of they sign it or they reply or just say hey please reply. Let me know that you've got this. Speaker 1: Okay. Speaker 2: You can do it in a very nice way. Speaker 1: Right. Speaker 2: But, it also just lets them acknowledge what's going on. Speaker 1: If it's one thing to be dealing with my friends if a record company, calls and says something that about wanting an image for an album cover or something like that.
Do I need it more legally document? Am I under what their teams of lawyers working against me? Am I under some kind of greater threat? Do I need better protection or anything like that or do you still just do what you just described. Speaker 2: I, I think if you're going to be paid for a high commercial use, that you want to get an attorneys help or a formal forum, but a lot of companies like that, who are in the business of using photos, will have their own form that they'll ask you to sign. Speaker 1: Okay. Speaker 2: And they usually don't want your license. They want theirs. Speaker 1: Okay.
Speaker 2: So it, it, it, it can be intimidating to look at some of their forms. There'll, there'll be five or six pages of tiny print, legalese and so it's good to get an attorney to maybe review that, so, you can understand your rights as what's happening. Speaker 1: Do you generally find that those agreements are fair, is it, have you run across anything where someone was, getting a bad deal? Speaker 2: That's a tough thing, because it's not my decision as to whether something's fair. When I review contracts for photographers, even if it's a work made for hire agreement.
I, I wouldn't do it personally, unless I was being paid a lot of money. But, that's not my job. My, my job is to help the photographer to understand, you know this is a work made for hire. You understand that you won't own the copyright after, after you shoot this. As long as, that, they're happy with it, that's all that really matters. Speaker 1: With the web, as you've already mentioned, it's much easier for people to steal your images now. Fortunately with the web it's actually pretty easy to find that. still, what do I need to do, really, I want to stick something out there on the web, is there anything else that I need to be doing beside having the stuff in my image, registering.
Am I, am I set at that point? Speaker 2: Well, I, one, there's many things that you should do to try to protect your images. Because, these days, photographers, really have to put their photos online if they're going to market. Speaker 1: Okay. Speaker 2: Or, they're work's going to be shown on the internet. I mean, a lot of marketing and advertising's being done on internet. So, one is register your images, if at all possible. Two, you want to put a copyright notice. Speaker 1: Right. Speaker 2: On your photograph, or at least adjacent to your photograph. At least a name. It doesn't have to be the formal copyright notice.
By the way, under the Digital Millennium Copyright Act, that we talked about earlier, it could be just your name. It could be your website. Speaker 1: Okay. Speaker 2: It could be contact information. The copyright notice is the best. But your name will suffice for the DMCA. Speaker 1: If, if it's below the image, as I put it out there and someone crops that, is that violation of the DMCA? Speaker 2: Yes, Speaker 1: Wow. Speaker 2: And we just had some recent court decisions, that said, yes, being adjacent to, is a DMCA violation. Speaker 1: Okay. Speaker 2: In fact, one case just recently, and this was a firm by the third circuit, which was great.
A higher court. Speaker 1: Mh-mm. Speaker 2: Higher-level court. One step under the Supreme Court, of the US Supreme Court. The, the, the violators, the infringers scanned a magazine page, and the credit, the photo credit, was in the gutter, like you normally see with the. Speaker 1: Right, yeah. Speaker 2: In magazines. And the court said that was a DMCA violation. Speaker 1: To, to have have cropped the. Speaker 2: To have cropped the the watermark. Speaker 1: Even though it was way over. Wow, okay. Speaker 2: Yes, that was a great decision for photographers. Speaker 1: Yeah, that's great. Speaker 2: All right. So, we were also talking about ways to protect your, your images on the internet.
You always want to try to di, try to disable right click. I mean, it's really like locking the, the, your car door. Speaker 1: And what you're talking about is the ability for someone in their browser to right click on the image and save it. Speaker 2: Yes. Speaker 1: Yeah, okay. Speaker 2: We hear a lot of infringers say, well, I could right-click it. Wasn't I, wasn't I allowed to do so? Speaker 1: Right. Speaker 2: Because I could do so on the website. They really don't understand that they're really not supposed to do that. Speaker 1: Right. Speaker 2: And some, software packages or some people who can write in HTML can, when somebody rights clicks, can put a copyright notice saying, you can not download these photographs.
Speaker 1: Right. Speaker 2: So that's a, that's a good thing to do to protect your images if at all possible. Another thing you should do to protect your images when they're on the web is to read the terms and conditions of the website. When you upload a photograph, to a social media site, some of the photo, some of the websites, just by uploading your photograph there, they get the right to use your photograph in many different ways. Speaker 1: Okay. Speaker 2: Or lets say, you enter your photograph in a photo contest. You need to read the terms and conditions, of that photo contest because many times, just by entering.
Not if you win, not if you get the $100 they are offering, they get the, the company gets the right to use every single photograph that was submitted for that Photo contest. Now they've got free photo's to use for their marketing campaigns for years and years, and It also gives them the right either sometimes they'll have a copyright transfer in the terms and conditions. Or they'll get an unlimited license or the right to sub distribute your photos to other people, and so you need to read the fine print very carefully. Speaker 1: You mentioned just now someone saying, well, I right clicked on it.
I thought that meant I can take it. In the infringe words that you've seen, how many of them are willfuly malicious and is there a lot of just people not realizing that they shouldn't be using these images? Speaker 2: Yes, probably, I would say about half of the people would say that I didn't know that I couldn't. we, our, our firm, the firm. Speaker 1: Mm-hm. Speaker 2: My firm, we usually don't prosecute a lot of like bloggers, or people just sharing images for fun. Speaker 1: Mm-hm. Speaker 2: Like on grandma's recipe page. We don't prosecute that, but we do prosecute companies who are using the photos for advertisements or should know better.
Speaker 1: Right. Speaker 2: I mean, definitely we, we've had TV stations newspapers people, musicians, people who should understand about copyright law who infringe and then they say, I didn't know I couldn't use it. Well that's sort of like saying ignorance of the law is no excuse. Speaker 1: Right, particularly from someone who has their own media that they're probably trying to protect and worry about. Speaker 2: Yes. Speaker 1: Yeah, that doesn't really ring true.
Carolyn Wright is a photographer and attorney who specializes in photographer's rights. She also publishes the popular Photo Attorney blog, where she writes about these issues. In this course, she sits down with Ben Long to discuss what copyright means to photographers and the correct steps to registering and defending their copyrights in the Internet age.