“When your self-worth goes up, your net worth goes up with it.” – Mark Victor Hansen
For 9 years, I practiced law. When I quit my job about 2 years ago (you can read all about why I quit here), I was verrrryyyy happy to say goodbye to that career. But I’m so thankful I have my legal education and experience because I use them almost every single day as a professional content creator, photographer, and blogger. And today, I want to share a story about how I used them to strike back when someone blatantly (and illegally) used one of my images.
Around October-November of last year, a major website (which shall remain nameless) straight up STOLE one of my photos and proceeded to affix it to an article with a title that began, “Why Am I So Afraid of Conflict?”. No permission sought. No credit given.
This article, with photo of my smiling face and entire body as the lead image, was then blasted out to hundreds of thousands of people on their website, in their newsletter, on Instagram (to over 500K followers) and probably Facebook, Twitter, and their other accounts too. Several peers brought this to my attention (thank you all, btw!). I was even told that this blog was notorious for stealing images and using them in their articles without the creator’s permission.
I was PEEVED.
“But Krystle, why would you be upset?”, some of you might be thinking. “Wouldn’t you want the exposure?”
Um, NO, not in this case. I didn’t care about the ‘exposure’ here for lots of reasons.
Why Exposure Doesn’t Matter as Much as You Think
- This was a clear misappropriation of my photo and my likeness (since I appear in the photo). Only I have the legal right to reproduce my images, and only I have the right of privacy and of publicity associated with my likeness. In other words, you don’t get to publish one of my photos OR a photo of me without my permission. The same applies to you.
- This was a misleading use of my photo by positioning it how they did. I am NOT afraid of conflict (thank u, next)!
- Being compensated for my work and having my rights not be infringed are far more important to me than any exposure this blog could bring!
- “Exposure”? It’s actually exploitation. They exploited my photo for their own monetary gain. How many clicks did this article get, and how much $$$ would that have translated into for this blog? Only I have the legal right to exploit my work.
- What benefit would I get from this predicament? Nothing. Long gone are the days on Instagram when a repost on a large account would translate into lots of new followers for me.
So, you know what I did? I sent them a cease and desist letter that I drafted myself, along with an invoice for the amount I would have charged if they purchased the rights to use my photo! I charged a reasonable amount and didn’t include a penalty, although I could have (I’ve heard an industry standard can be as high as 3 x your regular rate). After a few weeks of back and forth by email—of me explaining my position and trying to tell them why giving me credit or removing the image doesn’t solve the problem—they finally came back and said their lawyer advised them to pay up. I later got a PayPal transfer for the full amount.
If you are just starting out, maybe a large account or website reposting your image is exciting to you; and believe me, for a long time, I felt this way too. But this is now my livelihood. I know what my images are worth. So, I have a right and responsibility to protect my work and my ability to earn a living from it.
Anytime your image is reproduced without your permission, it’s stealing. You should care because it’s an infringement of your copyright, and you have several options for how to deal with that infringement.
First, the Legal Stuff…
Right off the bat, this post comes with the HUGE DISCLAIMER that this should not, in any way, be taken as me giving you legal advice. If you need to know how to proceed in a particular situation, consult a lawyer.
There are a few other things that are important to understand:
- Content creators and photographers: even if you produce content for a brand, you are still the owner of all the rights (unless you sign them away). When you produce content, you are the owner of all of the intellectual property rights in your content (you automatically have the copyright – see #2 below). Beware of contract terms that ask you to transfer your rights to the brand or agency (including transferring your “moral rights”) or contracts that have the term “work made for hire”. The latter is an old term that does not exist in Canadian copyright law anymore.
- You don’t have to register a copyright for it to exist. When you produce an original artistic work, like a photograph, your copyright is automatically created. Registration isn’t necessary, and is only evidence of owning the copyright. You also don’t have to add a watermark or the “©”on your image (and it’s actually confusing if you haven’t technically registered a copyright).
- Credit is not the same as permission. Just because you have been credited when a person has reproduced your work doesn’t make a difference. It’s still an infringement of your copyright and against the law. The best practice is for the other person to ask your permission first. You have the right to say no, and you also have the option to ask for payment.
- Removing the image doesn’t reverse the infringement. The very act of reproducing your image causes the infringement. Even if the photo is later taken down, you are still free to pursue legal remedies.
What to do When Someone Reproduces Your Image
Okay, so now that you have a basic understanding of how copyright works, what exactly should you do? Well, like all good lawyers, my answer is: it depends. As a content creator, I can tell you that relationships in this industry are paramount, so you don’t want to go around firing off strongly worded cease and desist letters left, right, and centre. Sometimes, a quick DM or email kindly ask that credit be given, that this not happen again, or that the photo be removed, will do the trick. But each situation is different.
Consider these factors if your image is stolen/reproduced:
- Where has the photo been reproduced? On Instagram? On a website or other digital platform? In print? On a billboard?
- Who has reproduced the image and did this person have permission?
- Did the person give you credit? Remember: even if the person has credited you, it is still a violation of your copyright. But in the circumstances, it may make the offence less blatant or maybe the person didn’t realize it was wrong to do.
- Has the photo been used in connection with an advertisement?
- Are there other people in the photo? If so, do you have their permission? If you will be getting paid for the photo, should the other people get paid for use of their likeness too?
- Has the image been modified or altered in any way? Does the modification alter the integrity of your work?
You can consider these factors as well if someone asks you for permission to use your photo, and you are trying to determine what is reasonable to charge. If you agree to sell the rights to your photo, it’s a good idea to make it clear that you’re not selling your copyright (unless this is your intention and you charge accordingly), but instead a license to use.
Once you’ve considered the above factors, you can then do any or a combination of the following:
- Save the evidence. ALWAYS do this. Screenshot, print screen or whatever you have to do so you have a copy/evidence of the infringement.
- Verify you haven’t given permission. For example, did you unknowingly give permission in a contract?
- Do nothing. People repost my images all the time on Instagram, and I’ll often do nothing, so long as I’ve been credited. It’s not always worth spending time to enforce my rights, if it’s harmless or is a one-off. Best practice on my end would be to shoot the offender a quick DM/email to make the person aware my image shouldn’t be reposted without my permission first.
- Report. On the other hand, I’ve had people steal multiple images, post without credit, and go so far as to pass my work off as their own. I’ve dealt with these by reporting on Instagram. Even a one-off could be harmful enough to do something about, depending on who the offender is.
- Ask for credit. You can do this and nothing else, OR do this in combination with #7.
- Ask for the photo to be removed. You can also do this and nothing else, OR do this in combination with #7.
- Ask for payment. Sending an invoice can be a very effective way of getting your point across, but not every offender will actually be in a position to pay or respond to your request. Pursuing someone for payment can possibly lead to a dead-end, unless you’re prepared to take the next step.
- Send a personal cease and desist letter. A cease and desist letter lets the offender know you are the owner of the copyright and that he or she has infringed your copyright. The letter also asks the offender to cease the activity (i.e. remove the image and never reproduce your images without your permission again) and puts the offender on notice that if he or she should fail to cease by a certain date, there will be legal repercussions. You can send this with or without an invoice.
- Send a cease and desist letter from a lawyer. A cease and desist letter on a lawyer’s letterhead may be taken more seriously than one on your own. But this will cost you money, so you have to weigh the cost against the value of what you’ll get out of it. A lawyer’s cease and desist may also be ignored by the offender, so you may not want to take this step unless you’re prepared to ultimately do #10.
- Start a legal action. This can be costly, so it may be a matter of last resort (unless your work is particularly valuable, or the offence is particularly egregious).
Reproducing your work as a content creator and/or photographer is an offence and should not be taken lightly. Hopefully this post has helped you better understand the law and the options that are available to you.
Let me know in the comments whether this has happened to you and how you dealt with it!
Photography by: Laura Clarke Photography
Disclaimer: The information you obtain in this post is not, nor is it intended to be, legal advice. You should consult a lawyer for advice regarding your individual situation.