WHO OWNS MY PHOTO! – A look at the copyright in photographs

“In photography, there is a reality so subtle that it becomes more real than reality.”
– Alfred Stieglitz

It is a typical lockdown day. I take a photo of beautiful rain drops falling on my patio, and I enjoy it sipping a cup of tea. A picturesque moment! I click a photo, upload it on Instagram and Facebook, and share it with my friends and family on What’s App. 

Well, my peaceful time is disrupted by the constant beeping of my mobile phone. I find that my boss has asked me to immediately send him the presentation, which I have been procrastinating for weeks now. I start working on the presentation and through the image search on Google; I identify a photo apt for my presentation and adds flavor to my presentation.

Done with the presentation! I step out to buy groceries! I like the view of the street and immediately click a photo. This photo has a few faces visible and shop front with the display of brands. I share it on Instagram and Facebook as part of my story. 

Copyright and Permission to use 

It seems like a pretty standard day, doesn’t it? But these mundane activities have a hoard of questionable IP Rights. For instance, who has the copyright over my ‘teacup in patio’ image? Can Instagram or Facebook offer it to third parties or use it in any advertisements? Whose permission do I need to use a Google image as part of my presentation and website? Do I need permission of people visible in photo? The store owner and brands do I need them to authorize my photo?

We end up violating IP rights innocently! At the end, it may just be a thought that I am only clicking a photograph and uploading it for likes. Still, this innocent clicking of photographs results in infringing IP. Through this article, we will take you through the multi-faceted aspects of IP rights in photographs.

There are two pertinent questions in respect of the copyright in photographs:

  • Whom do you need to give permission?
  • Whose permission do you need?

Starting from the very basics, the person who clicks the camera shutter owns the copyright in the photograph. Copyright is not an add-on right secured through registration; rather, it is automatically created once a creative work is reproduced in tangible form. Once the photo is clicked, the photographer is the owner of the copyright. This is however, different from engaging a photographer to click pictures for you. In such cases, you and the photographer enter into an agreement where you will be the photograph owner and may give the photographer the permission to use your photos for his advertising purposes.

Photographs and Social media 

So, you are the owner of the ‘teacup in patio’ photograph and upload it on Instagram & Facebook for your followers. In a few days you see that your ‘teacup in patio’ is on now various third party websites. Surprised? Don’t be, when you upload a photograph on a social media platform, you retain the copyright over the photograph, but you also provide the social media platform a non-exclusive, fully paid, royalty-free, transferable and sub-licensable right over the content posted on the platform. This simply means that Instagram can use the photograph as it chooses and license it to third parties. Technically, Instagram’s Terms of Use allows itself to choose images that users have posted on their platform and sell them to third-party marketing companies. However, it is unlikely that Instagram would indulge in such activities as it would alienate its users.

So, does Instagram also allow third parties to embed your content on their websites? The simple answer is No. In a recent controversy, a photo was used on a third party website through Instagram’s embed feature, which was disputed by the photographer. Through a statement issued by Instagram, it has been clarified that in order to embed user content on a website, the website owner has to seek permission from the user, and the embedding feature is not protected under the license issued to Instagram.

But what about sharing the ‘teacup in patio’ photo on WhatsApp to my friends and family? Well, you clicked the camera shutter, you are the copyright owner, and you can share it wherever you please! But, if there is further circulation of your photo by your friends, it is recommended that they take your permission. WhatsApp’s policy states that they do not retain user messages to provide their Services; but will take action if copyright infringement is reported to them.

Using an Image from Google library 

What about the image taken from Google for my presentation? Do you need Google’s permission? No, instead, you need the owner’s permission to use their images for circulation. Google images are not a collection of images owned by Google rather is a search engine of images which it finds from all over the web. You cannot simply download the image from Google and use it in your slides unless it falls within one of the exceptions i.e. fair use and free-to-use images. Fair use permits limited use of copyrighted material without acquiring permission from the rights holders whereas in free-to-use the images can be used freely, but require credit, and may have limitations on how, or in what context, they can be used. Does Google provide the details of the copyright owner to seek permission, no; since it would violate the privacy rights of the owner. Instead, Google suggests referring to the source of the image to contact the owner.

Privacy and Photographs

The question often asked is do you need permission from every person whose face appears in the photograph taken in a public place? This is a gray area in Indian legislation as there are no defined laws to differentiate creativity with violation of privacy. Does India have a law prohibiting photography in public places? The simple answer is no; but with conditions. Taking a photo of a crowd in a public place may not be frowned upon. However taking a specific person’s photo in a public place may not be permissible. You can take pictures of public places for private use, but it should not be in a manner that is traumatic or embarrassing to the person in the photograph.

While the proposed Data Protection Bill does not specifically deal with photographs in a public place, parallels can be drawn with Europe’s General Data Protection Regulation. The European regulation provides that copyright does not apply to photos ‘in course of a purely personal or household activity’. Still, it requires taking consent before doing street photography. Generally, if private property is open to the public like a restaurant, retail store, tourist areas, etc., you are allowed to take photographs unless it is expressly

stated on the premises that you can’t. However, if a property owner (or store employee) tells you to stop, you have to stop. It’s best to use the USA’s policy in such cases, which requires the photographer to maintain ‘reasonable expectation of privacy.’

Whose permission should you take in cases of public monuments? In India, except the Taj Mahal, Ajanta Caves and Leh Palace, photographers have the right to click photos without taking anyone’s permission. For rest of the public places, if you can see it, you can click it. As long as the position you are shooting in is on public ground, you can click whatever you like; this includes anything on a private property but within a public view. For instance, a dog enjoying the winter sun, or people sitting in a restaurant patio, or kids playing in the park.

It’s always best to take permissions wherever possible. Happy shooting!

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