Copyrights and Consideration: Do Your Clients Know?

Copyrights and Consideration: Do Your Clients Know?

Back in August, while preparing for my latest trip - Seattle on this particular weekend - I found myself casually scrolling through Instagram to kill some time while taking a short break. After just a couple of minutes of this, something I had known quite well for years suddenly became clearer than ever: photographer's images are routinely modified by their clients, with the various filters and image manipulation tools Instagram offers, before they post them. I decided I was going to do what little I could do to speak out against it that afternoon because, by golly, I was all self righteous at that moment, and I was going to be heard. Well, at least on my Facebook anyway.

So I took action. What I did was, I created a simple side-by-side graphic, using my own image and a representative "Instagram'd" version of the same image (which I created in Photoshop), and then posted it to my Facebook page with [what I thought] was a firm yet reasonable plea to the Facebook world. It was a simple message, asking clients to stop modifying photographer's images without their consent and then posting them on the internet, thus misrepresenting said photographer's work to the public.  I felt content with what I had, and modestly relieved to have spoken my mind.

This is the side-by-side image I posted:

Disclaimer: The above images are my own, copyright Nino Batista Photo, depicting my original final photo and my own depiction of what the typical Instagram-like modifications to an image can look like. The model in this photo, Aneta Kowal, did *NOT* modify my shots of her.

Then it was time to hit the airport, and fly to Seattle. 4+ hours of no internet access at 30 odd thousand feet, The Amazing Spiderman 2 without audio (long story), and 24 oz. of Coke that made the last hour of the flight a bit squirrely. Upon landing, I found a restroom quickly at Sea-Tac airport, then sat down to await my ride. Out came the phone, and off to Facebook land I went.

What I discovered upon opening Facebook there at the airport can only be described as "the most supported and vilified, loved and hated, shared and condemned, adored and loathed viral post in my little history on Facebook."

Many thousands of Facebook shares, Likes and Comments had occurred on the post while I was in the air. Unsurprisingly, most of the comments were in full support of my statement, as my Page is followed predominantly by other photographers in the social media world. That was hardly unexpected, and it seems that for a short while, the comments were unanimously in support of my post.  

But then came the criticism, the disagreements, and the outright vitriol. As it turns out, more people thought my post was a load of "whiny photographer bullshit" - or curiously said I was saying "complete lies" - more than I would have ever guessed. The fact is, quite a lot of people who commented on the post flat out disagreed with my statement that you should not modify a photographers image and then post it on the internet.  

One particular commenter stated (paraphrased because the original Facebook post was deleted.):

I paid for the images. They are mine, not the photographers. I can do what I damn well please with them, and that includes modifying or editing them however the hell I want. The photos are of ME, so therefore they belong to ME. And I can do anything I want with them.

Sure, that can be interpreted as a misunderstanding - let's call it naïveté - by a well-meaning but misguided client. Right?  Wrong. Dead wrong.

By and large, the comments left on my post were divided roughly into 3 broad categories:

  1. Photographers who agree with it.
  2. Photography industry people who agree with it.
  3. Non-industry people who disagree with it, or at least thought it was "no big deal".

 

But there were exceptions - and many of them. Some photographers felt it was perfectly ok for clients to modify their images, and they even condoned the practice. I honestly could not understand this, and it took me genuinely by surprise.

A few professional and amateur models admitted guilty to this practice, and most stated they would cease doing it from then on. Which was good to see, though not surprising that industry people would get the point. Many non industry people who had ever hired a photographer were flat out indignant about declaring that the photos they received were, in fact, their's to do with as they pleased, and without limitation.  

Why would a photographer invest in equipment, time and effort to deliver their clients the best possible result that they want to deliver...only to have it all stripped away when slapped on social media? It doesn't look like their work when that happens.

Obviously this should be dictated by the contract that is in place (and I strongly recommend you have contracts and releases for all the work you do) but remember most contracts are not Work For Hire / Copyright Release in nature. 

Let's be clear:  Most large publications and media outlets are smart enough to not appropriate your work for commercial purposes without seeking permission and/or paying licensing fees, as they know the penalties for that infringement can cost them enormous sums of money. It is basically guaranteed that you're not going to wake up tomorrow to find a photo of yours on the cover of Rolling Stone by accident, thus letting you sue for untold amounts of cash. The dumb part is, if that did happen, Rolling Stone would simply pay you and the lawsuit would be settled out of court, quickly and painlessly.  

No, instead most copyright violations photographers get to endure are smaller in nature, and mostly right in the middle of today's internet world, and the vast majority of them are not worth legal action. Technically, you can sue your individual client for editing and posting your shot on Instagram, but you will lose more money in legal fees than you will make if the courts decide in your favor, which they likely will. But, that's pointless. And no matter who you are, if you are suing an amateur model, boudoir client, or bride and groom for altering and posting your image on their Instagram, you're almost certainly going to get a bad reputation in the consumers' minds. And clients talk to one another. Believe me, they do.

The fact is, many photography clients and potential clients genuinely believe that the images they receive from their photographer legally belong to them and not said photographer. A lot of these clients simply don't realize how the delivering of an artistic service works in terms of copyrights, and that the images they received are subject to legal protection - even without an official copyright. 

So if you shouldn't sue your individual clients for altering your photos and slapping them on Instagram, what in the heck are you supposed to do? For one, this can be most easily avoided by setting the expectation with the client up front about copyright, licensing and of course the overall contract. While your wedding and newborn photography clients are almost certainly not interested in your petty copyright concerns, it still has to be mentioned and clarified to avoid a catastrophe later.

Second, make sure you copyright your images officially, just as a precaution. You never know when a basic blog share of your image explodes into viral status, and then major news outlets and publications are picking it up. In many cases, you're due some money for all that usage, and if you don't have your ducks in a row on copyrighting your work, your efforts are going to be much more difficult. I firmly suggest you go to Copyright.gov and copyright your key images (or every client job and personal project you publish). Read up on the details, and get into the habit of doing this immediately.

But back to my original point. I am still very much shocked at the animosity and aggressiveness that occurred on my Facebook post about this matter, and how awful some people were to photographer and the photography industry as a whole. Thankfully, most people understand and respect us. Sadly, it is not the overwhelming majority of people, as I came to find out from that fateful Facebook post back in August.

Have you ever had a client aggressively tell you that you have no say in what they do with the photos you shot for them?

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53 Comments

Cooper Penn's picture

Actually the majority is probably in agreement with your view. The MAJORITY of people willing to comment however are vastly in the negative, trolling, angry moby, group.

EDIT: The internetz <shrug>

Nino Batista's picture

Fair point! It is just amazing how many people disagreed. I think I can smell a troll, you know, as opposed to "that guy who seriously thinks I am crazy for saying this", though. Plenty of trolls were on that post, but I am still taken aback and how many people think it is ok to do whatever you want a photographer's images.

Martin Van Londen's picture

You did a great job bring this up to people who are ignorant of the laws. As for the trolls I think they just renforce what you are saying so intelligent people who are uninformed.

Nino Batista's picture

And I believe I've only scratched the surface on what I *could* be saying in a piece about this subject. There will be a follow up, replete with information and quotes from patent, copyright and licensing lawyers as well. I think it's all about, you know, the more you know (or your clients know…)

Martin Van Londen's picture

Oh great! I look forward to that. But honestly I feel like I should make a special "Instagram Guide Lines" addition to my email signatures. Just to help maintain a brand integrity. I have met a few people who have figured out every way you can possibly make a photo look worse on Instagram. They just need to be politely told what not to do, and what is ok to do.

Its like I want to be tagged in all my photos that are posted on social media.. but not if you have ruined them.

Eric Mazzone's picture

That's a great idea, that I'll be implementing right now.

Martin Van Londen's picture

Lol! Good! The only problem I see with it is how to condense it down to size for an email signature.

This does put photographers in a tough spot. You can't really deal with someone altering your images, and even releasing them with credit (which after filters you may not WANT credit since it degrades the quality of your work), without losing repeat and potential clients. At the same time, you don't want people thinking you take poorly composed and retouched images.

I know a lot of photographers send out social media ready images that are sized and proportioned to fit the most popular social media specs. I do think that does reduce the number of people who are randomly posting crap they've worked up themselves because honestly laziness prevails the majority of the time.

Nino Batista's picture

Oh I getcha, totally. It is literally impossible to change some people's minds on this matter - and trust me I've tried - because of the wanton ignorance and laziness there generally is about it all. It's an odd double edged sword, because you can't sue, not *really*, but you also shouldn't just sit back and let it happen either. Tough indeed.

Not understanding what they are paying for is a really common occurrence in any bespoke creative industry. They think they are buying a product when they are actually paying for a service.

Nino Batista's picture

THIS.

In my experience, work for hire is becoming more and more prevalent. In those cases, the client can do whatever they want with the image, whether it is advisable or not. Sucks if they muck-it-up, but it is their right to do so. Retain the rights for self-promotion and you can at least display it in it's unadulterated state.

Nino Batista's picture

No doubt, especially in the commercial world. I would argue that a wedding is basically quasi-work-for-hire, so to speak, in that you can't really sue a bride and groom who hired you, loved your work, and you had a good experience with just because they filter your shot on Instagram. If you do, there will be hell to pay for the severed personal connections and possible negativity that will spread in the local industry.

ive seen some of my wedding work on instagram/facebook butchered with filters. My reasons for not taking any action against it are:
1. It drains me of energy to commence in an email battle with someone ive done business with and probably like.
2. Its most likely ROI-negative. They will never refer me to any of their friends or speak good of me. They might even post negative feedback on websites etc.
3. Its usually a small number of images that wind up edited by the client anyway and many times its obvious that the effect is made from instagram.

Nino Batista's picture

And that is precisely why I call it more of a consideration issue than a copyright issue. I agree with you 100%. Litigation is literally never the best course of action when an individual client does this to your work on Instagram.

Anonymous's picture

I feel the same way...

The virulence of the vocal minority responders to the original post was pretty astonishing but not surprising...people are ignorant of copyright law and the internet is drowning in trolls with an enormous sense of entitlement. Bad combination.

Nino Batista's picture

NO kidding, dude. That was a staggering weekend, watching all that unfold wasn't it? haha

Thomas Bullock's picture

This has always been a pet peeve of mine, luckily when I shoot organized work with models I clarify it as nicely as possible. And try to tech them my logic on the matter. I also do provide a second folder of images sized for instagram where I've filled/extended whatever I can to make it fit.

Oddly enough the worst "clients" I have are my extended family. I often shoot family events and outings with them and they think they are helping me out by crediting me, but with the hack job they do to my photos I would rather not be credited at all and just get their word of mouth.

Nino Batista's picture

No one screws you like family. ;)

Word. My family is just as bad. They ask for snapshots on the softa then credit me as if it were actual work. No, please do not do that. And I love it when someone is looking for a photographer and they try to sell me as a super cheap photographer who will give them a great deal and use a snapshot of my dog as the selling photo. Not the amazing headshot I took for my cousin's girlfriend who models and acts, or the light painting we collaborated on with LED hula hoops, a snapshot of my dog on the couch taken with my cell phone.

You actually put images on facebook? How stupid are you? Their terms give them the right to do anything they want with them, including re-selling.
Only a fool or a total idiot would put images on that site.

Nino Batista's picture

Well, the good news about your innocent-yet-abrasive statement is, you're wrong. Facebook and Instagram's disclaimers / terms and conditions do not and cannot make an image you upload legally *belong* to them. It's complicated, and I won't go into it here in a comment, but you should definitely spend a little more time on the inter webs researching how it all works, not just Sharing rant posts and deeming it as gospel after just reading the headline.

I'm going to offer some heresy. In many cases, particularly in various genres of family photography, it makes sense to sell the copyright and original image files to the client and not worry about how the image is used. The terms of the sale can be customized to fit the needs of the situation. Selling the copyright will not be the best solution for all situations, but it will be for a lot. If clients buy the copyright, I don't care whether they apply Instagram or other filters that offend my aesthetic sensibilities. Once the sale of the copyright compensates me with greenbacks, I don't care how brutally magenta filters are applied to an image I shot.

Nino Batista's picture

Oh, no doubt. If I relinquish copyright control, then I don't even look back. Of course! That's a whole different matter. I do believe, though, that many photographers do not mention in their contracts what the copyright situation will be with the client, or sometimes word it so "lawyer like" that the client glazes over it and then makes mistakes later.

But yeah, if you sell the copyrights, not only should you not complain if the shot is altered, you also CAN'T complain that the shot is altered.

J H's picture

I read lots of articles about the "Diva" attitude towards media professionals. In a un-related incident, a recent case in point where a certain pop starlet was unco-operative during the shoot (allegedly) and then vacates the shoot before it's finished for unknown reasons. Her musclebound enforcer comes back later to (allegedly) take back the images by force or otherwise destroy them.
If any of that is true it's incredibly unprofessional to say the least, just an overall example of client taking too many liberties or feeling overly entitled.

Chris Adval's picture

this is one reason I focus more in commercial than non-commercial, too much of a headache.

I'm a bit surprised... that you were surprised.

1) if you haven't noticed, comments across the web on all sites have become spite and hate-filled Troll-fests.
2) shooting predominantly beautiful women... very beautifully I might add(!)... is like a magnet for the testosterone filled teen geek boys that love nothing better than being rebellious, and mega-fan girls that have made everything about a favorite model their own to *<3* however they want.
3) way before Facebook, there were "scanners", that scanned, for scanner sites... I believe just about every magazine in existence through the 90's and early 2000's. Cataloging in massive forums and databases all of the models. These were then edited, enhanced, Photoshopped to create the wallpaper sites, dating ads, porn ads, ad-ads-for-new-fads... etc. It appears Instagram, Pinterest and FB are the modern equivalent of wallpaper and mega-gallery-model-picture sites.
4) because "photos" of all kinds are so ubiquitous, so easy to edit and share, and so many people doing it... it stands to reason that people think, "why not me, why not this pic, who's going to notice in this flood of visual stimuli"?
5) which brings me to "stimuli". You stimulate with your beautiful pictures. Fans of "the picture" collect likes that come from "creating a cool version for my friends of this great picture only I found in the flood". "Likes" is the name of the "candy for the masses" today. It is also the same candy treats that trolls love to collect, based on your shock and awe.

A number of papers have been written about the Dopamine Candy-kick of today's social media. Rather unfortunately, I don't see anyone ever winning the War on Drugs... and this drug happens to be legal... whether the way they get their fix may not be.

*** Just an aside: graphic designers have been putting up with clients butchering their corporate ID's for ages and long before the Internet.

Nino Batista's picture

Agreed on all. And I've been a graphic designer since 1990 - totally hear you on that, too.

Ralph Berrett's picture

Nice article I had those conversations on licensing and they are always painful.

My background is editorial and commercial. I have shot a lot of images for publications, advertisements and media kits. The side effect is I am used to seeing images cut out, re-cropped, tone and edited every which way. I have dealt with editors who did not know, the difference between, square, horizontal, and vertical images. So seeing images mangled and screwed up any which way is par for the course. The most important issue is did the check clear.

If I shoot a TF with a model I could care less about re-editing for instagram, facebook or other social media. I do have a limit for commercial use and editorial use (magazines, posters, calendars, commercial websites and so forth). If the model wants to re edit and use an image for social media don't care. A paid shoot the model will get a tear sheet if the client okays it.

Most of the clients I tend to deal with understand the limits of their license. In terms of copyright so it is not a big issue.

Part of the issue of what we are dancing around with here is Derivative work and commercial vs editorial.
My personal rubicon is if my images is being used for commercial use for profit, like the way Shepard Fairey tried to steel the image of Obama for his poster, in that case I go "Scott Bourne" on them and set loose the lawyers. God may have mercy, the lawyers won't.

As I explained once to an artist, I don't care if they want to create a Derivative work, but as soon as they try and sell it the had better get the proper licensing or all hell will break loose.