Media’s evolving State: What photographers, brands, and retailers can learn from copyright law
Editor’s Note: In the Summer issue of TransWorld Business we tackled a question often haunting independent photographers – How do you protect your work when the digital world, Instagram included, makes it so easy to be muddled in the chaos?
By: Sal Orofino and Kelsey Smith
Late one night as I scoured my Facebook feed, I came upon a passionate thread of disgruntled photographers chiming in on how to police photo rights on social. The thread was started by a friend who has dedicated his life to professional photography. After discovering a very large and powerful brand had "stolen his photo" and reposted it as their own across various digital and social channels, the conversation sparked many respected surf and snow photographers to chime in, fuming with similar stories of frustration. Now this might seem silly to the naïve. Why are you up in arms about a simple re-post? It's a compliment, a sign of gratitude, a simple photo on a stream of endless content. But as one photographer friend said, "My landlord does not accept photo cred." Case in point.
Photographers, after all, are the ultimate storytellers in an industry that values the human story so dearly. So why are we discriminating based on medium?
Now, what to do about fairly compensating or receiving the deserved compensation is another thing entirely. The Internet, the world-wide-web of muddled content and information, has done a great job at protecting larger corporations from lawsuits involving intellectual property, but is extremely vague when it comes to protecting the little man. Social media has democratized the art of photography and the five-year-old platform, ironically named 'Insta'gram, has become a point of contention for creative professionals, marketing gurus, and culture in general.
Photographers need to start taking their work more seriously and see the value in their work as a viable advertising commodity. People are using their images to build a brand and sell a product.” – Tim Zimmerman
The current digital ecosystem has changed the way we as a society view everything. We are an image-driven species. The cultural commerce of images extends beyond the image itself, providing a gateway for analytics and monetary advances that directly benefit brands. Many argue social media is the ultimate ROI. As digital media begins to surpass the audience of print, how do we as an industry set standards for professional photography? The standards set now—a code-of-ethics and declaration of rights, if you will—could set the stage for what's expected as we venture deeper into this proverbial black hole of digital story-telling.
"You're going to see opinions all over the map, but I strongly feel the photographers are the backbone of the industry," says Evan Slater, GM of brand marketing at Hurley. "And no one should just expect nor assume they can use a photographer's imagery for free. I've never understood that."
The argument is two-fold when addressing the blurry lines of intellectual property rights. Tim Zimmerman, a professional snowboarding photographer, said it best, calling out all parties to claim responsibility. "Photographers need to start taking their work more seriously and see the value in their work as a viable advertising commodity. People are using their images to build a brand and sell a product. These brands have to pay all their other suppliers, so what makes your photography work any less valuable than the rubber company that's supplying their boot sales? Brands need to start budgeting realistically for social media. This is huge and can only happen if the photographers stop playing dead."
The expendable nature of social media makes it convenient to "borrow," or re-post, a photo, and unfortunately, the law is vague on copyright infringement with intellectual property. But wisdom is power. All parties involved—brands, retailers, and photographers—should be educated on best practices, and armed with knowledge of the law as well as an action plan. Zimmerman adds, "Brands should have clear policies about licensing images with the steps that have to be taken before anything can be posted. And photographers should know what they're going to charge, and be clear about what is and isn't acceptable use, depending on their fee."
Jeff Hall, co-owner at A Frame Photo, a full service media-licensing agency working with surfing photographers, puts it simply: "You can't just help yourself to whatever imagery you like and think it's OK because you've tagged the photographer. It exposes an unsophisticated image buyer. And unfortunately, ignorance to the reality of copyright violation isn't a defensible excuse. It's kind of like, just because you heard a song on the radio doesn't mean you can use it in your next commercial as long as you credit the band."
Brands would be short-sighted if they're not supporting the people who create the dream," says Slater. "Their job is more relevant and valuable than ever. We just need to make sure that we're responsible enough to compensate them for it.
"Perhaps most encouraging is that this industry actually has the social will to tackle the problem and create a win-win," says Sal Orofino, Principle of Orofino Law Group, PLLC, specializing in proprietary intellectual property, social media law, and cyber-risks, among other things.
Social media law
For the most part, Instagram's terms and conditions "are artfully vague," admits Orofino, if not self-incriminating. When a photographer, brand, retailer, or individual signs a contract with a Instagram to create an account, that user gives away a set of rights in order to post to the platform—'their house, their rules.' And although the law fluidly changes, Instagram claims that the person posting the photo owns that photo; however, implicitly gives them the non-exclusive right to essentially do whatever they would like with the photo. Orofino breaks it down further:
- They require the user posting the content to assume liability for any violation of law.
- They also require that the person posting the image is willing to cover expenses of a potential lawsuit that would be brought against either the social media channel and/or an individual user who violated copyright with the content in question.
- Finally, they require the person posting to grant Instagram a royalty-free (meaning if Instagram makes money off your photo they don't have to pay you for it), unrestricted (meaning with no boundaries), transferable (meaning Instagram can share your photo with their partners), and worldwide license to re-use the content.
What to know about copyright & infringement
"Copyright determines who owns the rights to a photograph in question," explains Orofino.
The copyright comes into existence the second the shutter closes and the image has been created by the photographer taking the photo.
An owner with copyright protection has the right to:
- Reproduce the photograph
- Prepare derivative works based on the photograph, ex: advertisements with text overlaying the photo
- Distribute copies of the photograph to the public for sale or for "rent" through a license
- Display the photograph publicly
"We are all consumer-facing brands, so I personally feel that any imagery we use is essentially advertising. Ultimately, I'll refer to the photographers who are doing all the work to create a scale for what's fair," says Slater. His personal ethics speak to a pay scale developed by a group of photographers and media cohorts that aim to reflect a scale for compensation for a photo sold to a brand or retailer to use on social channels, digital campaigns or websites, and of course, in print. "It's a new territory for both brands and photographers to figure out what's fair payment and it's obviously a different scale for a print ad versus a social channel, but I think we've gotten to a good point," he adds when addressing a working scale for compensation on Instagram photos. Surfing Magazine and A Frame Photo established a price breakdown for photos licensed out on social media. The values, broken down by number of followers, have become somewhat of an industry standard within the surfing world.
Some clients need an image for one email blast and some just want to have full digital rights and not have to worry about it," explains Hall. "Typical time frame is one year, but some of the larger, non-endemic companies like to get three to five years to cover themselves.
When asked how brands and retailers should go about properly using photos, Zimmerman speaks for most photographers in the space. "This one is incredibly easy: just contact me and describe the kind of photo licensing you need and I'll give you a price. If it doesn't fit your budget, we can negotiate the usage down to something that does."
It's a delicate ecosystem and the digital nature of sharing and distributing photography has changed. But our industry has the upper hand in trying to mitigate problems. One photographer said it wisely; "The issue is not isolated to action sports and is probably even worse in other areas where the brands have less than personal relationships with the photographers." The ultimate goal would be to come together to create a declaration of rights, as some have said, to scale the value of a photo.
"Brands would be short-sighted if they're not supporting the people who create the dream," says Slater. "Their job is more relevant and valuable than ever. We just need to make sure that we're responsible enough to compensate them for it."