If someone takes a picture of you (without your permission), who owns the picture?

In My Humble Opinion
81

If the creator has NOT registered the image (or other piece of work) with the Copyright Office, they can generally only sue for actual damages or any additional profits made by the person who infringed the copyright.

If the creator HAS registered the image with the Copyright Office (and any pro photographer will likely have done this) they can sue for statutory damages, for “a sum of not less than $750 or more than $30,000 as the court considers just” [Title 17, Chapter 5, Section 504 (c) (1)].

Not only that, but if the court finds that the infringement was wilfull (that is, if you used the image knowing that you were not allowed to, and especially if the copyright owner had asked you to take it down), “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000” [Chapter 5, Section 504 (c) (2)].

These numbers are for each infringement, so if you nick three different pictures, or post a picture in three different outlets, the court can award these amounts times three.

In order to qualify for statutory damages, the work must have been registered “not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement” [Chapter 4, Section 412].

Also:

82

That sounds like the RIAA suing people for millions for downloading music.

How much did the RIAA collect? (They spent waaaaaay more than they ever collected even with a few flashy judgements in their favor).

83

Yeah, I wrote a RPG supplement decades ago, and every so often some thief uploads it onto a free PDF source. I just have them take it down, no lawyers are involved.

84

Do you know why there were only a few flashy judgments? Because almost everyone that the RIAA actually served with a violation notice paid up, usually a few thousand dollars.

The thing is that copyright violation of the sort we’re talking about here is a strict liability civil offense. To win the case, I don’t even have to show that you knew the picture was mine, or that it was covered by copyright. If you use my picture without permission, if the picture is registered with the Copyright Office, and if I sue you, it is about as certain as anything can possibly be certain in the legal world that I will win the case.

Also, if I can show the judge that I offered to settle the case for a couple of hundred dollars before going to trial, but you refused and insisted on taking it to trial, this increases the chances that the judge will see you as acting in bad faith, and push your infringement penalty higher up that $700-30,000 scale, as well as awarding my attorney fees. If I can show, from our correspondence or some other way, that you knew the photo belonged to me and used it anyway, the judge might consider it wilful infringement.

And, in fact, a lot of pro photographers, when they discover someone has taken their picture without permission, do pretty much what the RIAA did: they tell the infringer that if they pay up a few hundred or a few thousand dollars (depending on how serious the infringement is), then they won’t take them to court.

Here’s a case where an entomologist who takes pictures of insects sued a pest control company for using his pictures without permission.

He had his lawyer send a cease-and-desist letter to the company first, requesting that they remove the images or pay his usual licensing fees for the use of his images. They didn’t respond, so he sued them.

I took the time to look up this photographer in the federal court databases (PACER), and he has sued at least 20 companies, large and small, over the past four or five years, for taking his images without permission. And do you know one thing that almost all of these lawsuits have in common? They all ended in a “voluntary dismissal” by the photographer. What this means is that he withdrew the lawsuits, presumably after getting some sort of satisfaction from the companies in question regarding payment of his license fees.

I’ll bet plenty of the companies involved here though they could take his images without consequences. Here’s how I’ll bet the process happened in most of those cases:

  1. You need a picture for your website, so you go and find a cool photo on the internet.
  2. You copy the photo and use it on your website.
  3. When the photographer asks you to take it down, you ignore him, or tell him you’re looking into it.
  4. You leave the photo on your website.
  5. When the photographer sends a cease-and-desist order, you ignore him again.
  6. You get served with copyright infringement lawsuit.
  7. You laugh at the lawsuit. “I took two or three pictures. What’s the penalty going to be? 50 bucks?”
  8. You give the lawsuit to your lawyer so he can make it go away.
  9. Lawyer tells you that, because the photographer has registered his image/s with the US Copyright Office, you could be on the hook for typical usage fees, PLUS legal fees AND up to $150,000 per image in statutory damages. Lawyer also tells you that the fact that the photographer sent you a Cease and Desist notice and you ignored it, and the fact that you’re a for-profit company using the image to advertise its services, will probably make the judge more likely to award a large statutory damages amount.
  10. You frantically ask the lawyer what you need to do next.
  11. The lawyer gets in touch with the photographer, who says that you need to pay him for use of the images, plus extra for his time, effort, and legal costs.
  12. You pay, because you’re going to lose in court if you don’t.
  13. Photographer dismisses the lawsuit.​
85

Or…

Photographer goes to all this trouble and the person who posted it to Instagram (see OP) already got her views and takes it down.

Who has won?

I’ll see if I can find the source but IIRC they didn’t get a whole lot of these either. Some, to be sure, but nowhere near enough to cover their costs trying to enforce this.

86

For more information, you can read about the specific enforcement action here. I got a couple of minor details wrong (it was a small betting parlor, not a retail shop), but the wider picture (heh) is accurate. The legal citations are explained at the link.

87

I’ll search. If I am mistaken and it wasn’t you I will post a retraction here.

88

But the thing is, while taking it down likely mitigates the offense and might eliminate the possibility of a ruling of wilful infringement, taking it down doesn’t necessarily eliminate all liability. If the photographer can prove it was on Instagram, and the copyright was registered, it’s still eminently possible to win statutory damages and attorney fees in a lawsuit.

Also, when it comes to individuals like that, there is no requirement to give them notice of their infringement or send a cease-and-desist letter. There is no safe harbor on copyright for individuals or regular companies.

Internet hosts and some other providers do have safe harbor. So, if you find your image or video posted on Instagram or Youtube, you can directly sue the businesses or individuals who posted them. But before you can sue Instaagram or Youtube, you have to send them a Digital Millennium Copyright Act (DMCA) takedown notice, informing them that they are hosting a protected work. You can only sue them if they fail to comply with a valid takedown request.

You know a big difference?

In order to demonstrate copyright infringement, the recording industry lawyers had to do things like get subpoenas for IP addresses and a whole lot of other convoluted measures, just to work out who the infringing parties were. Files were generally shared on torrent networks and other places where the people involved were only identified by things like IP addresses, not their names. It’s a lot easier to identify who is stealing your stuff if they are posting it on their social media pages.

Also, the recording industry was going after thousands of people. Sure, they might have spent more than they took in, but I doubt that’s much consolation to the people they did nab, who had to hand over thousands of dollars. If you’re a photographer and only one or two people are taking your images, it’s a much simpler process to identify them and file a suit.

Anyway, you’re a master at moving goalposts in this discussion. First you don’t like the law so you want to talk principles and ethics. Then you suggest that there are basically no actual damages to recover, but when someone shows you that the law allows for statutory damages you make dismissive references to the RIAA.

Maybe it would be easier, in a factual discussion like this, if you were willing to simply admit that you don’t know or don’t like how copyright law works, rather than playing a game of legal and ethical @Whack-a-mole, where you shift the focus of your argument every time you get an answer you don’t like.

89

Ok, I don’t like how copyright law works. It seems like it is mostly used by copyright trolls these days and this seems like that. This is a legitimate problem.

I don’t see (rationally) how someone can take a picture of you and then sue you for using your own likeness without contracting with you to take the picture.

Apparently Europe has a much better handle on this as a legal matter.

And how have I moved any goalposts? I have been asking questions and debating but I frequently referred back to the OP as the basis for my discussion…no goalpost moving.

90

Do you also think that if I write a biography about you, you should be able to check a copy out of the library and have 20 copies made at Staples?

91

No.

But a book about me is not the same thing as a photo. Not even close.

That said I think it’s great you will write about me. :wink:

92

What’s the difference?

93

Your words versus a captured image.

Words are your creation. Captured image is me.

94

But a whole lot about precisely how that captured image looks is the creation of the photographer.

95

I have a high regard for good photographers. We all take pictures with ease these days but we can still identify some few who are real artists with the medium and can do amazing things.

But that is subjective and it remains that someone used a machine to capture an image. The compositional effort can be zero to near infinity but we can’t really account for that.

Is an image captured by a security camera copyrighted work?

96

That’s a good question, and I can’t see any settled caselaw on that. I see both opinions on the internet that yes it is, and no it isn’t. I would have thought it was, personally.

97

My question as quoted above was more about whether this case was relevant to the case of someone taking a picture of people on a public street. It’s obvious to me how a security camera falls in under what is described in article 2. Nothing in this case tells me anything about where the limits of article 2 lie.

98

Copying style:

Basically:

In March 2019, U.S. District Judge Janis Sammartino deemed it a transformative, “highly creative” work and found it to be a fair use.
Suess appealed and on Friday the 9th Circuit reversed Sammartino’s summary judgment with regard to the copyright infringement claim. The panel found that not one of the four fair use factors weighed in ComicMix’s favor.

Which simply proves that going to court over these issues can be a subjective crapshoot.

court found that defendants ‘took the heart of Dr. Seuss’s works’ in their infringing ‘mash-up’ and affirmed DSE’s right to decide whether and how its beloved characters and stories may be adapted.

99

But that case is not just about copying style. As someone who has a keen amateur interest in the law in general, and in copyright law in particular, one of the problems I’ve found when reading news and blog stories on copyright cases is that the summaries offered on the web often don’t do justice to the intricacies of the courts’ decisions.

I think that’s the case here. The Ninth Circuit didn’t just find that the comic book copied some of the style from Dr. Seuss; it found that the comic copied a considerable portion of the Seuss illustrations as closely as possible.

Here’s a couple of paragraphs from the court’s opinion (PDF):

There are also, on pp 17, 18, 22, and 23, side-by-side images showing the illustrations from the Dr. Seuss works and from the ComicMix book. It’s not just a matter of copying the general style of illustration. “ComicMix’s ‘verbatim copying of the original’ weighs against fair use.” (p. 22)

100

That’s absolutely not true in the UK.

From there:

"In the UK you do not have to get the permission from people you photograph whilst they are in a public place. Using and selling images of people in a public place is usually acceptable if undertaken with a view to being used for any journalistic or artistic material.

However if you intend to sell the image commercially or use it for a commercial purpose (for example to promote a product) it is normally recommended to get people to sign a model release form - see below for more about why this is important."

Pretty much the same as US rules.

And:

"Taking photographs of a person in a public place would not normally be regarded as an invasion of privacy. The key seems to be whether the place is one where a person would have a reasonable expectation of privacy. So using a telephoto lens to take a photo of someone in a private place, such as their home, without their consent, is probably an invasion of privacy even though the photo is taken from a public place.

The lack of any coherent law of privacy in the UK means that photographers are not only free to take photographs of people in public places, but they can use those photos as they wish, including for commercial gain. In some countries, individuals have rights over the commercial use of their images, hence the importance of obtaining a model release for the use of an image that contains a recognisable person.

UK law does not, at present, recognise this right. But failure to obtain a model release will seriously impair the commercial use of an image because most photo libraries, stock agencies and the like have an international customer base and will not accept an image of a recognisable person without a release."

That cite also covers the data protection act and concludes that most street photography is excepted from it.

Other places in Europe might have stricter laws - they are not usually EU-wide laws. But you are definitely wrong about laws in this particular part of Europe.