In today’s internet-driven economy, businesses recognize the importance of using digital content to reach consumers. However, this often creates unique intellectual property issues – including potential copyright infringement questions.
Photographs and videos are amongst the most effective digital content – garnering significantly more likes, comments and click-thoughts on social media than text-based posts alone. While the use of photographs and videos presents an enormous marketing advantage, it also raises additional potential for legal exposure where such photographs or videos are not carefully sourced.
Protections under Copyright Law
Copyright law protects the creative expression of an idea – be it words on a page, notes in a song, brushstrokes on a canvas or the various compositional elements in a photograph or video: such as lighting, shadow, camera angle, etc. Such copyright protection can extend to photographs of products, places and people. While you cannot “copyright” a person, for example, copyright protection could extend to a particular photograph of a person.
Copyright protection over photographs has been recognized in the U.S. since the late 1800s – and therein lies the challenge. Often we are left trying to fit 21st century issues into 19th century legal frameworks. Sometimes, this results in illogical outcomes.
One such counterintuitive outcome concerns the pitfall surrounding the creation of videos and photographs (or other copyrightable works) by employees or independent contractors who have not signed appropriate copyright-related paperwork. Especially in the case of independent contractors, this can be disastrous.
Importance of Proper Agreements
In general, U.S. copyright law provides that an independent contractor retains all copyrights to any work created by such contractor absent a written agreement to the contrary. This means that when a business hires an outside graphic artist, and outside marketing firm or an outside product designer, there can be contested issues over ownership down the road. The worst case scenario? I have seen cases where former contractors contest ownership, take down online content and even hold social media accounts “hostage” over these issues…issues which could have been preemptively resolved with a simple agreement. For example, this may include the inclusion of appropriate work-for-hire language in employment and independent contractor agreements.
Ownership of Photographs
Another contradictory outcome concerns the use of videos or photographs taken by others. A big misconception is the use of media depicting your products, your property or even yourself. Persons and businesses do not have an unfettered right to use such content – even when they themselves arguably are the subject matter.
Indeed, recent cases have born this out as celebrities including Jennifer Lopez, Gigi Hadid and Khloé Kardashian have all faced suits for posting paparazzi photographs of themselves on social media. It is absurd to think that you cannot post a photograph of yourself on social media – but that is an increasingly common pitfall for prominent persons.
Similarly, third party photographs of a company’s products or designs can also raise copyright infringement issues. Think of an architect who wants to use someone else’s photograph of a building the architect designed. Or think of a manufacturer who sees a product review video posted by a satisfied customer on social media. The natural inclination in today’s digital world is to simply copy and paste such media – but that can lead to a number of copyright issues.
A good general rule is to ask yourself, “how would I feel if someone used my photographs or videos without permission?” Often, photographers are happy to give permission – free of charge – in exchange for simply including attribution information such as a website link. Businesses just need to take the additional step of asking for permission first.
In cases where photographers and /or videographers seek a royalty, a competent copyright attorney can help navigate the nuances of creating a licensing agreement. Alternatively, numerous “micro stock photography” organizations such as Getty Images and the istockphoto.com platform allow businesses to license stock photos and videos for relatively low costs.