One photographer, one video and copyright problems regarding embedded content from Instagram

The well-known photographer Paul Nicklen won a copyright lawsuit in the US.

The case at hand concerns a dramatic video clip of starving polar bears created by the photographer and uploaded on Facebook and Instagram in 2017.

Without any permission from Paul Nicklen or National Geographic, Sinclair Broadcasting Group embedded this video through a link from Instagram. What’s more they take a screenshot from the video for its cover image.

A lawsuit followed. According to the Sinclair Broadcasting Group there was no infringement because they didn’t used or displayed the video on they website. They just used an embedded link from Instagram, that is to say the video was stored on another server.

According to the law in the US, most precisely the so-called “server rule” online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work.

The court in New York disagreed with these arguments. The court stressed that the law is technology-neutral and is “concerned not with how a work is shown, but that a work is shown.”

The main problem from that point of view was the fact that although the video was embedded, the screenshot was taken separately and uploaded on the Sinclair Broadcasting Group website, which allowed their visitors to see one part of the video without playing it based on the link to Instagram. This constitutes a copyright infringement because displaying even a part of one work can be done based on permission from the copyright holders.

Other social media such as YouTube and Vimeo have already included an option where creators can choose whether or not their uploaded content to be embedded. For the time being, Facebook and Instagram haven’t done that which can trigger new lawsuits for copyright infringements in the future.

Source: PetaPixel.

What types of copyright licenses can a photographer rely on when doing business?

Photography is one of those areas where creators, in this case photographers, have to rely on intellectual property laws, in particular, the copyright law, in order to make their living.

The reason for this mix between creativity and legal theory and practice, which sometimes looks terrifying for the creators, is the simple fact that photographs as intellectual products have an intangible value that can be controlled only based on the law, or at least that is the classic explanation.

If we take this for granted, what are the particular ways every photographer to take advantage of this legal protection.

The general rule of thumb is that one original photo can be used only after permission by the author with an exception of some cases of fair use.

This permission can be provided by a written document called a copyright license. The legislation in some countries allows even the assignment of copyrights, but for the purpose of this article we will focus our attention only on license agreements.

They provide the user of a photograph with the necessary rights to use it under specific circumstances, such as a term, territory, fee etc.

There is two main types of licenses:

  • Exclusive licenses – exclusive means that only the Licensee can use the licensed  photo. That is to say the relevant economic and moral copyright rights will be transferred to the Licensee and nobody else will be able to take advantage of them. This includes the photographer too, who will not be able to use the licensed photo with exception of the cases where this possibility is explicitly stipulated in the agreement. Exclusivity can cover all copyrights or only some part of them.
  • Non-exclusive licenses – in general, a non-exclusive license means that more than one Licensee can use the relevant image subject matter to the agreement. The photographer remains free to use the same photo as well as to allow any other Licensees to do that too. There are no restrictions like in the case of exclusive licensing. This type of license is the most widespread because it allows photographers to maximize all commercial benefits of their works. The reason for this effect is quite simple. While in the case of an exclusive license, only one purchaser can use the image and will pay only one remuneration for that purpose, in the case of non-exclusive licenses it is possible for many licensees to buy permission for the use of the photo paying separate fees for that purpose. Of course, because there will be no exclusivity, these licenses will be cheaper compared with the exclusive ones. Nevertheless due to the potentially huge volume of  granted licenses the profit could be even greater.  

Every photographer should be very careful what type of license gives to the photo users. In the case of an exclusive one, this will means that no one else will be able to use the same photo for the relevant purpose, which normally means that the profit per image will be higher for the photographer.

On the other hand with a non-exclusive license the photographer will be able to give unlimited licenses to new and new users although at a lower price.

If you want to learn more about the nitty-gritty of copyright protection of photographs you can check this new Udemy course: Photography & Copyright: A Complete guide for photographers.

What should you know about copyright and photographs?

Either you are a photographer or someone who wants to use such works for commercial purposes, it is a good idea for you to know the bare minimum about the copyright protection that every image has.

Why is this so important?

The brief answer is that this can save you from all sorts of legal conflicts especially if you want to use photographs for your business.

Many people regard copyright law as something complex appropriate only for lawyers. But that’s not the case. The copyright basics are easy to be understood and can be quite helpful for every one of us.

So without further ado, what are the main characteristics of the copyright protection of photos:

  1. Copyright protection over images arises automatically – this happens at the moment when a photo is taken, provided that all criteria necessary for receiving protection are fulfilled, that is to say the photo is original, and it is fixed on a medium – print, digital etc.
  2. Who owns the copyright over a photo – this is the photographer that took it. However, in case the photo is made for hire or  in the course of employment, then the copyright can belong to the Commissioner or the employer ( in most of the countries this means mainly that the commercial rights for use of the photo belong to the employer or the Commissioner, the photographer remains the author of the work and keeps some of the moral rights).
  3. What copyright does a photographer have? – these rights are separated into two groups
    • Economic rights – these are rights for commercial exploitation of the photo. This means that every time someone wants to use a photo commercially, permission from the author is required. These rights include:
      • reproduction of the photo in various forms, such as printed publications etc.;
      • to distribute copies of the photo to the public by sale or other transfer of ownership, or by rental, lease, or lending;
      • public display of the photo;
      • broadcasting or other communication of the photo to the public including transmission over the internet etc.
    • Moral rights – they are recognizable in most of the countries around the world including in the US where, however, moral rights are possible only for visual art. Their scope can vary in the different countries but we can summarize the most essential of them such as:
      • the right to claim authorship;
      • to prevent any intentional distortion, mutilation, or other modification of that photo etc.
  4. Fair use of photos – some uses cannot be prohibited by the photographer which means that the relevant photo can be used for free. This includes:
    • Use of photos for non-commercial and private study;
    • Use for non-commercial research;
    • Criticism, quotation, review, and reporting current events;
    • Teaching;
    • In case of supporting disabled people;
    • Parody and caricature;
  5. Duration of copyright over photos – in most of the countries around the world copyright duration over photographs is the life of the photographer + 70 years when his/her hires can benefit from these rights.

That’s it. It wasn’t so bad. Of course this was only some of the most essential moments but nevertheless knowing them is a good first step to avoid potential legal disputes especially from a business point of view.

In case you want to learn more and to be better prepared you can check this new Udemy course: Photography & Copyright: A Complete guide for photographers.

It discusses all the above and even more, topics such as how to license a photograph, what is a Creative Commons license, what photographers should bear in mind when taking pictures and how they can enforce their rights if needed.

Why is copyright so important for photographers?

Photography is one of the most trendy areas nowadays. There are many reasons for this.

With the rise of the Internet many businesses start to use digital products, including photographs, for their advertising and marketing activities as a whole.

Apart from this, the digital technologies open the door for many new ways how photographers can make business out of their works.

Having said that, there are one element that is crucial for the success in the field of photography as a business. This is the copyright law. Yes it could sound too legal as a topic but it is a fact that copyright serves as a tool for managing every photo business, and it doesn’t matter whether we are talking about individual photographers, agencies or photo websites.

Copyright is a critical element when you want to make business with images. Every photographer should know at least the bare minimum of the rules stipulated by the copyright law in order to thrive especially in the light of the Internet which offers many opportunities but many traps too.

For instance, when you want to sell your photo to someone, you need to know how to license it correctly, what rights to transfer, for what territory and term. This is important because if you know how to do it properly you will be able to maximize your profit from every image.

Another essential moment is you to be aware for the main rules when you take photos in order to avoid legal conflicts. For example, when you are allowed to picture persons, or to include trademarks and other copyrighted works in your photographs.

If we have to summarize all benefits that copyright provides photographers with we can say that:

  • It gives a legal protection over photographs;
  • Photographers can control who, how, when and where can use their photos;
  • Photographers can claim authorship over their photos based on the law;
  • Copyright provides rules for commercial exploitation of photos;
  • Copyright ensures that photographers can make their living based on the created images;
  • Copyright serves as an additional stimulus for the photographers to continue doing their creative work in the future.

In case that you are interested in this topic you can subscribe for notifications for this new upcoming Udemy course that will teach you the most essential moments of copyright protection over images as well as some practical tips how to take photos avoiding legal conflicts.

You can subscribe and learn more here.