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:
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:
- Photographers who agree with it.
- Photography industry people who agree with it.
- 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.
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?