Artists Photographers & Copyright In The Digital Age

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Art and photography have long gone hand-in-hand and have sometimes been friendly enough bedfellows and sometimes not. The advent of the digital age has certainly brought with it some new challenges for both camps.

No, this is not an intellectual debate about photography versus art and the merits of one over the other – those have been going on for years and will probably continue to do so. It is, however, something that will be of interest to those involved in both disciplines whether in an amateur or professional capacity.

The main reason behind this post is to explain to both artists and photographers how conflict can be avoided when mixing art and photography in the same bowl. Yes, conflict between those wielding a camera and those hefting a brush may sound a little melodramatic, and it is also nothing new, but things have certainly become a little more complex in recent times.

Let us first take the artist. An exhibition in a gallery (solo exhibition/group exhibition commercial/public gallery it matters not) is a very important aspect of an artist’s life and living. Art galleries come in all shapes and sizes and are essential if an artist is to become more widely known and appreciated, so public exhibits of their work is very important. During the course of the exhibition, visitors walk in with modern digital cameras, cellphones, point and shoot, DSLR etc. and photograph the two dimensional work of the artist in question.

Some galleries may forbid photography, or they may permit the taking of pictures for personal use and they may or may not make their policies clear. They should certainly have a policy of some kind, but it is likely that regardless of the official stance, people will take photographs – the explosion of technology facilitating it is just so great nowadays and short of confiscating every cellphone and mobile device at the doorway there is little that can be done to prevent it.

I read a piece online the other day where a journalist complained about one artist’s strict stand against anyone taking photograph’s of his work, regardless of their reasons for wanting to do so. The writer was also a photographer and whilst her arguments and objections held some water, she seemed oblivious to the basic right of the creator to have complete control of his creations – after all, surely she would expect that right with her own images. Maybe in her view the artist’s policy was a little foolish but it does no alter the fact that it is his right.

You may well be able to see where this is leading already, because digital photography and the internet have introduced a whole new set of complexities to the equation. It is more important than ever that artists and photographers understand and respect each other and their work.

Financially speaking, an artist cannot succeed without showing their work to the world at large but you do need to take precautions to protect your rights. Many people fail to understand, or even completely ignore the fact, that a two dimensional work of art remains the property of the creator. Even if an artist sells an original Painting, the rights to that image do not automatically pass to the new owner, normally they remain firmly with the painter unless the artist specifically passes rights to the buyer.

Those rights have value for the artist and that value is something they have earned by creating something entirely unique. With many artists taking advantage of modern reproduction techniques, they are finally on a par with writers and recording artists in being able to earn money through royalties and ongoing sales of their work, beyond the sale of an original painting.

The photographer, whether they consider themselves an artist or not, may well have the right to capture that image but must be careful what they then do with it. There have been famous cases in the past where photographers argued that because they took the photograph, it was a work in its own right and they therefore had ownership of it. This has been argued even by people who took photographs of other photographs. The truth of the matter is, that if you photograph a painting, it does not entitle you to use the resulting picture for anything other than personal enjoyment. You cannot publish it or use it for commercial purposes of any kind without the express permission of the original artist. If that permission is sought but is not forthcoming, you cannot proceed.

As an artist, publishing your work on the web is something that you may well wish to do – there is, after all, a huge audience out there, and therefore an equally huge potential market. Follow a few simple rules to protect your artwork.

Make sure that you post a copyright notice on your website, and that any other sites you may choose to host images of your work do not demand you relinquish any rights to them. Do not upload high resolution images of your paintings to the internet – just keep them large enough to be comfortably viewed. Use use watermarks to render them difficult to copy, reproduce or distribute by others. This will help to prevent misuse of the images of your work.

However, none of that will prevent the misuse of photographs taken by others of your paintings. Anyone with a good modern DSLR camera can capture high quality images of your work and this is where the real threat comes from, particularly in conjunction with the internet.

If you are a photographer and you have taken a nice picture of a painting that you would like to share with the world, think before uploading it to an image sharing site or your own website. The best advice to follow would be this – contact the artist and seek their permission as a first step. You may well be able to come to some agreement that is acceptable to both parties. If it means a bit of publicity for their work, a lot of artists may well agree to you publishing a limited size image on your site, perhaps also requesting proper attribution to them as the painter and a link to their own home on the web. Sometimes however they may not grant you permission and if they do not, it would be foolish to proceed. If you cannot contact the artist, think again before forging ahead because you may find yourself in a sticky situation further down the road.

To a photographer this may seem a lot of nonsense to have to go through and yet the internet is full of photographers complaining bitterly about theft of their own images by others. What is good for the goose is good for the gander. Photographers rightly protect their own copyright in relation to photographs, and artists need to protect their own source of income too. Artists are like anyone else and have bills to pay and mouths to feed – if they can do this through their own unique talents and creativity they do not deserve to be ripped off either. At the same time, striking a balance between being too protective and benefiting from good publicity is another important consideration.

In recent times we have had to take action against a couple of websites for copyright infringement. Fortunately the outcome in those cases has been amicable enough. In two cases, the offending material had probably been posted by a third party to a website owned by someone else entirely.

There is an individual on this island currently who seems to think it is acceptable to photograph artwork in galleries and even retail outlets and then post those large high definition photographs to the web. The photographer in question even has the temerity to crop these photographs, basically rendering them print ready for anyone who wants to run off  as many copies as they wish. Whether this is done in all innocence or ignorance it poses a big problem, not only for the original artist but also those who work with them in reproducing their work and selling their work. Whatever the photographer’s intent, you can read why it is no excuse later in this post.

As an artist, if you find your work has been published online without your consent, the first thing to do is call or write to the offending website. Often, a polite email will result in a polite reply and an outcome that is agreeable to both parties. Sometimes however, it will be ignored and you may need to take further action. Large image sharing sites will invariably remove copyrighted images from their sites if requested to do so, and will usually write to the member concerned asking them to refrain from doing it again at risk of losing their membership of the site.

It is hard to monitor the internet, but services such as Google Alerts can be very useful and places like CopyScape can also help you prevent misuse, although probably more effectively for the written word. Sometimes a quick search on your name or the name of a painting can help you locate those who may be infringing your rights. Of course, a digital image file can be renamed easily but by being vigilant you can certainly prevent the more obvious image thieves.

If you contact a website regarding copyright infringement and they ignore you, your next step would be to issue a Digital Millennium Copyright Act (DMCA) takedown notice to their web hosting company. This will invariably work if the company hosting the site are in the U.S.A. but will often be honored by hosting companies in a lot of EU and other regions who have similar laws protecting copyright. The DMCA is a US law, and hosting companies there are required to take action by contacting the offending customer and asking them to remove the offending content. Failure to do so can make them liable for prosecution themselves so they will normally act on your behalf. Even if the customer remains stubbornly defiant, the risk is the loss of their website through closure of their hosting account. It isn’t really worth it for them.

If you are unsure of how to establish who is hosting a website, try WhoIsHostingThis.com which will give you all the information you are likely to need.

Once things begin to get official, most people will comply and remove your copyrighted images quite quickly.

Of course, situations can always arise on the internet where your chances of enforcement are far less. Plenty of countries around the world have no regard for laws passed elsewhere and will blatantly ignore or flout convention. In those cases, unless you are prepared for a very costly legal war with no guarantee of success you may just have to suck it up and move on. The internet is never going to be 100% secure by any means but you can try to limit your losses and by making your images a slightly harder target you will often cause the lazy to move on to easier pickings.

I hope this post will educate the photographers and artists. Working together is usually the best way forward – respect the rights of others, understand why they take the stance they do and there is no reason why conflict should arise. There is no reason why the two art forms cannot exist side by side and compliment each other.

Ignorance is no defense in law most of the time either, so think before you act too hastily after pointing your camera at something and pressing the shutter. If the photograph contains copyrighted material you need to know your rights too. More useful information regarding photography and copyright can be found here.

Further reading at Legal Guide For The Visual Artist

I suppose the most succinct advice for anyone, online or off, when it comes to copyright issues is this: if in doubt, ask first. Your comments are welcomed whether you are a photographer, artist, webmaster or none of the above.

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