New York portrait and event photographer Kristina Hill never planned for one of her images to be stolen and used without her permission. Unfortunately, copyright infringement is a concern photographers often need to be more mindful of. Many of us have had our images used inappropriately or even edited without our permission, but having a client’s loving engagement photo twisted and manipulated into a bigoted political attack ad is something altogether different.What happens when an expression of love turns into a vehicle for hate? Kristina Hill was kind enough to explain this very experience she went through and answer a few questions I had for her about the whole ordeal.
Brian Edwards and Thomas Privitere were in an exciting, loving relationship and they decided to finally go ahead and get married (civil union). They hired local photographer Kristina Hill and walked around their gorgeous city, Brooklyn, New York, having their photographs taken to celebrate their engagement and upcoming wedding as most modern couples do. This was four years ago in June of 2010. Kristina excitedly blogged about the shoot, sharing some of the couple’s photos and Brian and Thomas also blogged about it, sharing even more photos. Nothing out of the ordinary here at all - many of us do this with our clients all the time.
What Happened Next
Jump forward a couple of years later. The Public Advocates for the United States, a conservative Washington, D.C. group, released an attack ad mailer against Sen. Jean White regarding her vote in support of a bill which allowed same-sex couples to have civil unions. As their website states, The PAUS group has supported the idea of a "federal traditional marriage (man-woman) amendment to the Constitution to defend traditional marriage from assaults from those who claim to promote 'same sex marriage.'" Well, The Denver Post covered the story and that's where everything seemed to start spreading. The photo the PAUS chose to use to illustrate their hate was of two men kissing in front of a very poorly photoshopped snowy-treed “Colorado” background – the same two men Kristina photographed in Brooklyn Heights two years previous. Did they license the use of the image? Of course not. Why would an extremist, conservative, anti-gay group want to follow the law when trying to make a political point about laws they themselves want upheld and respected? That's obviously not one of their "family values" and this is why we don't have nice things.
After discovering how the engagement photo was used, Brian was devastated and wrote a heartfelt response about the unauthorized use. Kristina, flabbergasted, promptly responded as well at her website. From this point forward, legal recourse was pursued. Now, four years later, it seems like this nightmare is finally coming to a close as the court has finally made its first ruling that the PDN Pulse covered two weeks ago. Although the couple’s misappropriation claim was dismissed (the men argued that their likeness were used in a commercial way against Colorado's right-of-publicity laws, but the court ruled the use was within free speech), the court did rule in favor of Hill's copyright infringement claim. It's an on-going case however as PAUS isn't the only defendant that Hill is suing.
What's Happening Now
I strongly recommend following along the timeline and reading through the links above to get a better sense of what both Kristina and her clients were forced to endure – it reads as a very emotionally draining experience for everyone involved. I have a few thoughts on what we can take away from this story, but I want to first let Kristina offer some of her insight on what everything was like along her struggle for justice. Kristina’s lawyer Anjali Nair, Southern Poverty Law Center staff attorney, tackles the first question and Kristina answers the rest.
What has the court ruled so far?
Plaintiffs Edwards and Privitere’s claim for misappropriation of likeness was dismissed by the Court earlier this year. However, the court denied Defendants Public Advocate of the United States, National Association for Gun Rights, Rocky Mountain Gun Owners, Lucius O’Dell, Dudley Brown, and Andrew Brown’s efforts to dismiss Plaintiff Hill’s claim of copyright infringement. Recently, Public Advocate of the United States paid Plaintiff Hill $2,501 for its use of the photograph and entered into a settlement agreement with Plaintiff Edwards and Privitere. As such, the case against Public Advocate of the United States has concluded in full. Plaintiff Hill’s claim of copyright infringement as to the remaining defendants is still pending before the court.
How would you describe your experience?
Overwhelming. A bit surreal. At first it was shocking and heartbreaking to see this happen to Brian and Tom. No one wants their work to be stolen, of course, but to see it then manipulated and turned into a message of hate - the opposite of its original purpose - makes the sting even harder.
Aside from the case being occasionally time consuming and often nerve wracking, the most difficult part is biting my tongue while the case is ongoing. There has been a fair amount of media coverage, particularly at the start, and I was shocked at the amount of hate that still exists. Reading the comments about the couple, my work and LGBT individuals has been incredibly upsetting, and it's hard to keep quiet when you feel so strongly about something.
How can photographers protect their images?
The case began two years ago and in that time it's made me think a lot about a lot of things. Not one wedding/portrait photographer I know or have worked with registers their images with the US Copyright Office. I surely never thought to do so before all of this occurred. The idea seems time consuming, when you're shooting thousands of images in a weekend. It also seemed unnecessary, knowing that my contract covered me with the clients I was shooting for, clearly stating their rights to use the images and my maintaining copyright. I actually did register the image with the US copyright office - you must in order to file a lawsuit. So it was registered the day after I discovered the image was used, as recommended by PPA who were the first people I reached out to.
As a wedding photographer every transaction seems so personal, I didn't think about the images the same way I did when shooting for magazine clients. Then something like this happens and you realize those extra steps and fees may just be worth it. My best advice is to educate yourself on copyright laws. PPA has great information and they are more than willing to help you understand how these laws apply to your business. We are lucky to have a fabulous law team and I learned a lot about copyright during the process. I definitely think a lot of photographers are uninformed and even misinformed on the subject. Once you have the information, make a decision that is right for you and your business.
First, I really believe in watermarking my images for sharing online. It’s not like putting a watermark on images saves them from being stolen. I know that still happens. But what it does do is let someone know where the image came from (in case they are ignorant to copyright, this just might spark them to contact the appropriate people). It also serves as a deterrent of sorts and forces someone to either crop around, or spend time photoshopping the watermark off – hopefully making their intent all the more clear when it comes to proving wrongdoing in a court of law.
Second, registering your photos with the U.S. Copyright office should be in your workflow somehow – after finishing each shoot, a monthly batch, something! It’s a really big pain in the butt, I know. Government websites are rarely technology friendly and easy to use, but you should really consider making registering your images part of your routine. You can batch process an entire wedding to thumbnail sized images, and upload a zip file for each client to save time. The images don’t need to be large; they just need to be recognizable.
Finally, right now we’re living in a time of a civil rights movement for the right for all people to celebrate and solidify their love equally. It’s an amazing opportunity for photographers to be a part of, and with this opportunity comes an unfortunate backlash from groups like PAUS. There are going to be spectacles made. Talking with your clients about that possibility is one of the first things that I think should be discussed because not everyone is comfortable with such a bright spotlight on their personal affairs. I'm currently planning a shoot with two awesome gentlemen that have recently been married here in Indiana last week when a federal judge threw out a ban on gay marriage. Sadly, only days later the governor issued a stay on same-sex marriages, leaving everyone who wed earlier in the week wondering what will happen next and what the status of their marriage is now. Emotions are high to say the least. As a photographer, I feel it's my duty to not only protect my images, but to protect my clients as well, and I think that last bit should seriously be taken into account as we play a role in this historical movement.
All images used with permission.