Can You Post Your Own Photo?
by Intellectual Property Attorney Bill Honaker, the IP Guy
Depends on who took it.
The person who pressed the button on the camera when they took the picture automatically owns the copyright on that picture. If it’s a selfie, you’re safe. If not, you’re infringing the photographer’s copyright. Many celebrities are learning this the hard way when they post pictures of themselves on social media.
The most recent example is rap legend Nas. He was sued in February for posting a 1993 picture of himself with, then living, rapper Tupac. Al Pereira is the photographer. The picture can be seen on Hot New Hip Hops’ web site. Pereira sued Nas in a California Federal Court.
Nas isn’t alone. Pop artist Katy Perry was sued for $150,000 for posting a photo of herself online. The image, and its copyright, are owned by Backgrid, a global celebrity news agency that provides photo and video content. You can license Backgrid’s photos, but you can’t use them without a license.
Katy’s problem started at a Halloween party when a Backgrid photographer snapped a photo of her dressed as Hillary Clinton. Katy posted it on her social media, but she didn’t get a license to use the photo – Backgrid says she refused – and is now being sued.
Artists like Justin Bieber, Ariana Grande, and others, have been sued for the same offense.
What Copyrights Protect:
Copyright law protects creative works that are original. It protects the expression of an idea in tangible form. Tangible form means that it can be reproduced or copied. This includes photos, because they can be copied. That photo is someone’s intellectual property, and they have valuable rights.
The Copyright Act grants five rights to a copyright owner:
- The right to reproduce the copyrighted work.
- The right to prepare derivative works based upon the work.
- The right to distribute copies of the work to the public.
- The right to perform the copyrighted work publicly.
- The right to display the copyrighted work publicly.
Damages Can Be Huge
The copyright holder is entitled to an injunction, actual damages, and your profits that exceed actual damages. But since these damages can be difficult to prove, statutory damages are available. These can range from $750 to $30,000 per infringement, and up to $150,000 for willful infringement. The successful party is also entitled to attorney’s fees. The amount of statutory damages and attorney’s fee are at the discretion of the court, but most courts dislike copying, and award accordingly and are encouraged to award attorney’s fees.
The best protection is to use only your own images. Your own images avoid copyright infringement because they are your copyrighted material.
If you do decide to use an image that you didn’t take, get a license, and then read, understand, and keep a copy of the license agreement. If you get threatened with litigation, the license will end the matter as long as you are in compliance. But, proof of the license is required, and it’s your responsibility to provide it. Keep a license file for every image used.
Using images on the web is risky for everyone, including independent musicians. Protect yourself by having the appropriate licensing rights and keeping a record of those rights. The consequences of not doing so can be financially devastating.
About the Author:
Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.