There have been many cases in society where the person being photographed has been sued by the photographer for the use of the photo with the subject of themselves. This is because according to the provisions of the Intellectual Property Law of many countries around the world, the photographer will be the owner of the copyright to the product that is the photograph, not the subject being photographed. Because of such a rule, there have been many cases of lawsuits against the subjects themselves being photographed, with the end result favoring the photographer, not the person being photographed.
Photo or painting can create a conflict of copyright between the person being photographed and the photographer, or artist. Both sides have a solid, credible argument as to why they have rights to the photo, as the picture are taken by the photographer or because the person is the main subject of that picture.
The answer to whom copyright belongs will depend on the Intellectual Property Law of each country, specifically the provisions on Copyright and related rights because no two laws are identical. However, according to the common ground of most countries in the world, the copyright to the photo will belong to its creator, not to the subject being photographed.
This will be relatively confusing for most people but it can become easier to understand if you compare a picture to a painting because in most countries, intellectual property rights for these two types of images are often similar to each other.
An artist spends hours drawing a professional poser hired to pose, standing still for hours on end. In this case, it is obvious that the rights to the resulting painting will belong to the artist and not the subject of the painting.
Likewise, the rights to the photo will belong to the photographer, not the person being photographed. However, whether the photographer has the right to photograph the person being photographed is another matter. If the picture is drawn or taken without the permission of the subject being photographed, it may lead to lawsuits from the person being photographed, because they have violated their privacy rights, insulted their honor (if any),…
Consequently, the matter of the rights to the photo will turn to the matter of civil lawsuit, infringement on the privacy rights as well as other rights of the person being photographed. In normal circumstance, when photographing another subject, the photographer will ask the subject for their permission beforehand. However, in amateur photographing, this request is normally just words with no clear evidence of the deal, agreement.
For example, the subject later on might sue the photographer that they have no rights to take their photographs, between them haven’t had any types of agreement, etc. or the photographer has agreed to allow the subject use their photographs, etc.
However, there is other specific aspects to consider, such as the posing of the subject. If the court deems that the posing is not natural, i.e. the subject has made an unnatural pose to be displayed good in a photograph, this means that they are likely to have a consent on being photographed. However, the matter will be different if they are just accidental subject of a photograph.
In this direction, it will be divided to two scenarios which is if they have been exposed of their private information or not, meaning if their face is blurred, or if there recognizable aspect is displayed.
If in a case where the photographer has the right to take a photo, like a photo in a public place, and the person being photographed accidentally gets into the lens and no detail information of that person is displayed, it is almost certain that the person being photographed will lose the case because they are in a public place and do not have the right to prohibit others from taking pictures.
Accordingly, the rights to the photographs clearly belong to the photographer in the absence of any other contradiction of nature. If the subject is photographed using the photo without permission, they have committed an infringement of the photographer’s copyright.
In the United States, copyright infringement can result in fines of up to $30,000 per infringement and up to $150,000 for willful infringement. Willful copyright infringement can also result in criminal penalties, including imprisonment of up to five years and fines of up to $250,000 per offense. However, normally, the punishment for copyright infringement is only a huge fine in practice, rarely get to the prison sentence or jail time.
An example of an intentional violation is when a photo user intentionally deletes the watermarks that the photographer inserts into his or her work or inserts text, deletes the author’s name, changes the content, the color of the photo in an arbitrary manner purposefully to avoid scanning tools for copyright infringement, etc.
The current situation of confusion about copyright for paintings and photos
Currently, in society, with the popularity of smartphones, more specifically, rapid photography technology, many people have turned from an ordinary citizen into amateur photographers.
They then post those photos on social media, open for use by everyone with no hard restrictions, except for the case of blasphemy, damage reputation of course. However, these requirement are not often stated and will only be dealt with if such cases happen as the law prevent such actions without the need of warning, notice beforehand by the posters.
If there are no particularly serious violations such as libel, defamation, etc., most amateur photographers will not initiate legal proceedings if a party uses their images without permission as most of them do the same thing themselves.
This is considered an open market where amateur photographers and people can freely exchange their work without asking for permission.
However, opposite to the group of amateur and unprofessional photographers, the group of professional photographers use captured images to commercialize. Accordingly, for a group of professional photographers, it is especially common to take legal measures to protect their rights and ownership rights to a work that is a photograph.
There are some rare individual photographers who consider the implementation of lawsuits for compensation and benefits as the main form of income, not from selling, transferring copyrights, licensing to use, etc.
However, this thinking is wrong. Photographers need to consider intellectual property tools as a shield to protect their interests, not abuse the system to gain benefits, intentionally ‘dropping bait’ meaning their work on public platforms, even implicitly label this as a free work. Therefore, when someone uses such work, the photographers initiates a lawsuit for profit.
Not only is this morally wrong, but this behavior can also be punished according to the provisions of the law because taking advantage of the legal system, looking for legal loopholes to make profit is illegal, prohibited by all laws.
Going back to the original problem, the emergence of more and more amateur photographers has caused many professional photographers damages. Because with current technology, it is impossible for a copyright owner to monitor every area in cyberspace and take legal action accordingly, not considering the complexity when initiating such a case.
Thereby, if the behavior of indiscriminate and unauthorized use continues and becomes more and more common with the popularity of the Internet in underdeveloped countries in Asia, Africa, etc. the rights and benefits of professional photographers will continue to decline.
Photographer’s point of view
As analyzed above, for professional photographers, their works are the main source of income and therefore, they will actively and proactively protect their interests against infringement.
However, for most professional photographers, it is not uncommon that they don’t completely restrict use because they understand that such a ban has the opposite effect. Instead, they usually just need the parties to give them credit on the post, like putting the author’s name on the edge of the picture, photo or attaching a link pointing to the author’s profile in their article.
For such cases, even though it may still constitute infringement because the user has not asked the author’s permission and obtained their consent, most authors will not take the matter seriously. A fact in reality, if the article has a link that points to the author’s website, it will be more acceptable to them than the normal name.
On the other hand, authors who are photographers can also implement a one-time ‘commercial licensing’ mechanism. Basically, this means that the author will condone the illegal use of the single-use party. Usually, they will notify the infringing party in writing and ask that this not happen again, and (if possible) the original infringing product is required to link, correct the information back to the author.
You can see a list of International IP Firms here.