July 13, 2011

With the growth of the worldwide web, the audience for our photographs has become incomprehensibly large, granting us new opportunities and mechanisms for storytelling. The flipside of this is that publishing is in new hands and the laws that govern use of our images have become antiquated. It is increasingly important that we follow existing protocols that protect our images from unfair use to not only subsidize our business as photographers but, and equally important, to educate the public about when and how to properly make use of our photographs. Here are some answers to FAQ’s addressing copyright today.

What is the lowest level of copyright protection? Your photographs are technically copyrighted the minute you depress the shutter on your camera. US Law protects your images against violation of fair use by another party. Generally speaking, fair use includes “criticism, comment, news reporting, teaching, scholarship, and research” and is determined by looking at “the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.” (http://www.copyright.gov/fls/fl102.html). If usage falls outside of these determinates, your images are protected against publication without your permission. Currently, with the advent of web platforms, the term ‘publish’ is under scrutiny and adds to the complexity of today’s copyright laws and subsequent protection (or lack thereof).

Why register them with the US Copyright Office? Although the images are technically protected under US Law what you can recover in the way of costs, particularly statutory damages, differs from an image that has a certificate of registration and one that does not.

Why and how should you mark your images? Whenever possible you should mark your images with © (option + G) followed by the year, your name and “All Rights Reserved.” For example: © 2011 Ed Kashi. All Rights Reserved. If the text is not exactly on but near the photograph (at the bottom of your website page, for example) you can reference the image(s) like so: photographs © 2011 Ed Kashi. All Rights Reserved.  Adding this information to your images will deter image pirates from the start and will make for a stronger case in the event you go to court.

What about metadata? There is a bill in the Senate that is due to pass called “Orphan Works.” The legislation addresses situations whereby the copyright owner of a photograph cannot be found and indentified, thereby making the photograph licensable and free of charge to any ‘good faith’ users. When and if this becomes law, it will be more essential then ever to have embedded your metadata in your photo file. Pay particular attention to the fields that would inform any viewer of your name and how to find you. If you have a website make sure that the address is in there. Make sure that your name is in the metadata as the copyright owner.  Insist that all of your clients give you a credit line and that they do not strip any metadata from your images.  You want to guarantee that your work can never be declared an “orphan” in the court of law otherwise it is not safe against copyright infringement.

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