Your Photos and The Law
Ani Agrawal, NK Patent Law
Ani is an intellectual property attorney with a diverse background in patent prosecution, patent litigation, and related IP advising. His current practice focuses on patent and trademark prosecution before the United States Patent and Trademark Office and in foreign countries. Before obtaining his law degree, Mr. Agrawal worked in cryogenics research and taught organic chemistry for over 6 years at the University of Illinois Chemistry Department. Previously, Mr. Agrawal spent 6 years involved in intellectual property litigation work for numerous corporations and universities across a wide spectrum of technologies, managing several attorneys in IP litigation matters. He regularly volunteers time with local entrepreneurial groups in both the Triangle and Charlotte.
https://nkpatentlaw.com/professionals/ani-agrawal/
Audio: Ariza Music Productions
Transcript : Vision In Word
Marlana: Ani Agrawal is an intellectual property attorney with a background in patent prosecution, patent litigation, and related IP advising. His current practice focuses on patent and trademark prosecution before United States patent trademark office and in foreign countries. Welcome, Ani!
Ani: Hi, Marlana!
Marlana: I am really excited to have this conversation with you because nobody talks about the legal aspect of using images and the ramifications of over stepping and crossing over the line. While this conversation is going to be based on the law and what things are from the legal standpoint, we do have to let people know that they should not be construed as legal advice, for that they will need to speak to a legal attorney.
Ani: Yeah! That’s right.
Marlana: So, let’s start with the very basics. I see an image online, whether be on Facebook or wherever and I decide “you know what! I really like this image and I want to use it.” So, I take a screenshot and I use it. Legal or illegal?
Ani: You should always presume that that is illegal. Copyright is really established as soon as an image or a song, anything is created. There is a copyright associated with that image and that is true whether they federally registered them or they’ve simply published it on their website. The creator has copyrights in that media they have created and that extends to them whether they have federally registered them or not. So, anytime you see an image you should always operate under the assumption that there is copyright associated with it.
Marlana: So, even if it’s something that’s non descriptive like flowers or a sunset, I should make that assumption?
Ani: Absolutely! So, the subject matter is not important in this case. It can be a person, it can be a sunset, an animal, an ornament. It makes no difference. The photographer or the creator of the image has rights in that and that’s true regardless of the subject.
Marlana: What about photos of me? If a photographer sends me proofs or I see my images being used on the photographer’s website or in a social media, can I take a screenshot and use them myself?
Ani: Actually you cannot! That is a common point of confusion. People think; “well! The photo is of me, obviously I will have full rights. It is the same image I see on the mirror every morning, so there should be no restrictions, it’s my face, it’s my property.” That is not the case. What happens is, when a photographer takes a photo of you, they own a copyright in that photo. So, absent some sort of work for hire agreement where ownership is transferred to the subject of the photo, absent any agreement like that, the copyright is presumed to be held by the photographer. You have to have the permission from the photographer, some sort of a license to be able to use the photo and it could be that you could use it for personal use or commercial use but that is the permission you have to be given by the photographer and provided a license by them because they are the copyright holder even though it’s your face on the picture.
Marlana: I think that’s a mental shift for a lot of people because even if the image is of you, we’re not talking of you. We are talking about something thats created by someone else and that entity. You did mentioned that all images are copyrighted upon creation, correct?
Ani: That is correct! Whether they are federally registered or not.
Marlana: Okay then, what is the difference between a copyright and a license?
Ani: The copyright is (and I keep mentioning this) the absence of some sort of work for higher agreement. A copyright is owned by the creator of the artwork, photograph, music. They own a copyright and if you have any license to use any copyrighted material, that is a right for you to use this image personally on your own personal website, for a business reason to advertise our product or service. For example, we could use it on our law firm website, but we will need a license from that photographer to use it for a business purposes. Licenses can vary dramatically in what they allow. Some can allow you the rights to modify the image, some you can use them freely but you have to give credit. There is creative commons licenses, I think there is seven different kinds of those which allow a wide variety of use. Some licenses you have to give attributions but you can use the images freely, and some licenses you can use for personal use but not for business. So, a copyright is a complete ownership over the image. A license will specify certain ways you can use that image and in a certain time period. It may not be exclusive, it may not be aimed after that.
Marlana: So, if I have a license, let’s say I have a four years commercial license, do I need a copyright?
Ani: If you have a four years commercial license for an image, do you need a copyright? The question is what you wanna do with that license? If your license provides you the rights to use the image the way you want to, then you wouldn’t need a copyright. You could use the image without infringing the copyright, but if you step outside what’s permitted by that commercial license, for example; you may not have the rights to resell this image, that will be a copyright violation because that is not encompassed by your license. So, depending on what you need to do, if the use is fulfilled by the license, then you wouldn’t need a copyright. Anytime you step outside the license, it’s not a free for all to do with the image what you please.
Marlana: So, what does that mean for me as a user if a photographer retains a copyright?
Ani: If you are the user you have a license to this image, if the photographer is retaining the license it means that thy can use the image in whatever manner they need to for the business or personal use. They have full ownership of the rights and they retain those rights in the image. So, often you’ll be on the photographer’s website, often you’ll see pictures of their work that they have taken. It is possible that those pictures, most of them are of people other than the photographer of course and in most of those images is very likely that the subject of the photo doesn’t have rights to those images or has a limited license for personal use, and the photographer maintains all the rights. So, they are able to use that image to say; “look at the good work I do” to kind of show their breadth of clientele. The owner of the copyright retains full rights even when a license is granted to a licensee.
Marlana: So, just to make this clear for everyone, let’s say a family photographer takes these beautiful images of your family and you decide “Gosh! I really would like to use these in my business to either help promote what I’m doing on a billboard or any kind of those things”, can I do that?
Ani: You can if you have the license from the photographer to use that image for a commercial purposes. Absent that license, you don’t have the right to use it just because it’s your child. It can be a picture of your own kid and you have no rights to use that image without a license allowing, in your example, a commercial use license.
Marlana: Let me ask this, does it change at all when there is the minor involved?
Ani: It does not change in terms of copyright ownership, the same rules apply. Now there could be other states that issues are involved when it’s the use of a minor and you’re identifying who the minor is, there could be some states law issues that come into play there, but in terms of federal copyright law and copyright ownership there’s no difference whether the subject is a child or an adult.
Marlana: Which then brings me to the next odd thing that happened fairly recently, and everybody can look the details of this by just Googling JayZ sues photographer. The abridged version of this is, the photographer photographed JayZ’s original album cover, I believe he is either selling an image of some kind, or using that image in something he is selling. JayZ is suing him because he is saying that he never agreed to the sale of his likeness or for it to be used in this manner or things like that. Is what the photographer doing just based on this information illegal?
Ani: What the photographer is doing in this case – I’m familiar with the case, is not illegal because like we’ve been discussing in this podcast, the photographer has full rights in these copyrighted images. From what I know, I think this was the Reasonable Doubt album and this is back in 1996. Neither party was flush with cash and tying all the legal lose-ends, so this was done in a traditional subject-photographer relationship where the photographer owns rights in the photos. The photographer was paid for this photoshoot and was paid for the specific photograph that was used in the album cover, but all of the other photos that were taken during that photoshoot are all owned by the photographer and as far as laws are concerned he has the right to use them in whatever way he sees fit. Now, what JayZ is alleging are States Rights Issues. He is alleging rights of publicity and privacy rights, that are being violated. Interestingly, JayZ is not arguing any federal violation of the law. These are just States rights issues that he is saying “my rights of publicity, I’m a famous person and you are using my likeness without my permission” because the photographer is selling prints of these JayZ photos from that shoot for thousands of dollars, he is making quite a bit of money from these images. At the end of the day is possible that JayZ is able to successfully prevent him from continuing to do this based on these rights of publicity – these state-law-issues, but JayZ would still not have rights to use these photographs of himself for his own use. So, he may be able to alledge his States rights to prevent the photographer from continuing to use his likeness, but he still will not own these photographs. Up until now, at least the law is clear that these photographs are owned completely by the photographer.
Marlana: Does it change at all when someone is famous or well recognized?
Ani: Yes! That’s where the Rights of Publicity come into play. You know, if you’d just sell a bunch of pictures of me, no one would buy them, but if you were to use photographs of somebody who doesn’t have the kind of notoriety that he has, it would be tough for them to allege that they are suffering some monitory damages because you’re using their likeness without their permission. So, the rights of publicity come into play, more so when you have famous people.
Marlana: Does that speak to the fact of the brand or the reputation, things like that? Is that kind of the area that we’re treading in?
Ani: Yeah! That’s a good question! How famous is famous? When are you famous enough to allege rights of publicity? There is no clear line on that. I mean, you would have to state the facts and try to make your case that I am famous enough. Fortunately in JayZ’s case, that’s not the borderline case. All of this could have been avoided if back in ’96, they contractually agreed that JZ would own the copyrights in all these photos, and it's treated as a work for hire situation then the photographer wouldn’t have any of these rights and this would have been a nonissue. Conversely if JayZ had signed off maybe for a discounted price of photography fees, saying “I will wave my rights of publicity and give you the right to use these photographs”, then it would have been clear also that the photographer had the right to use these photos. My reasoning on facts is that there was no legal agreements in play at the time, so, the default is, the photographer owns the copyrights and can do with them as he pleases.
Marlana: So, tell us a little bit, because I’ve never heard of rights of publicity. Tell us a little bit more about what that really means.
Ani: It comes out of a right to privacy, and what it is, its really comes out of a common law doctrine, it’s not a federal law. Different states have different rules and there are even some outcomes. Some states, some photographers where they are not subjected to rights of publicities being asserted against them, so, it’s kind of a state’s patchwork of laws. I think maybe about half of states have something like this, New York and California do have it, and it says that to exploit somebody’s public persona for financial gain is essentially a violation of their rights. That’s what it stems from. Again, it’s not a federal law, it’s not uniform across all the states and it differs between all the fifty states, but there are twenty five having them.
Marlana: Interesting! What about people who think, well I’m going to just use this image and if I get caught I get caught? First of all, people need to know that there are always ways to track images and the other thing we need to dive into is, let’s say you do get caught using the image you don’t have the license to use, what’s the best case, and what’s the worst case?
Ani: First of all as you said, there are always ways to track these images. Many images are imbedded with metadata,. I know for Windows for example, you can right click on the image file then go to “Properties” and its EXIF or reader data. Often times it lists the copyright holder and even includes a copyright notice in that metadata. There are programs that can kind of scroll through the web and pick these up. Big players in the image industry have these kind of programs. People can do reverse Google searching, where you submit a picture of a photograph and a photographer could certainly do a reverse Google and see where their images are coming up. Even if somebody scrubs the metadata, they are absolutely not in the clear because there are other ways to check these photos. If this happens and you get caught, chances are you will get in a best scenario, the photographer (the copyright holder) reaches out to you and says “I want to make you aware, this is our photo or image. Please take it down immediately and don't use it in the future”. That's the absolute best scenario! What I’ve usually seen is you get a DCMA take down request from the copyright holder and understandably, they want a financial compensation for the commercial use (for example) of their photograph or image. If it gets proven that you knew that you were infringing somebody's copyrights (and that’s called willful infringement) if it’s proven that your infringement was willful and that copyright is registered you can actually be subjected to statutory damages of USD $150,000 per infringed image. So, for every image you infringe, if it’s willful and they have it federally registered copyright, you can be set as statutory of a USD $10,000. The clients I’ve seen usually that’s not alleged, that’s sort after, but it’s definitely in the thousands. So, that could have been avoided easily by searching for public domain images or simply purchasing an image. Some of these images are inexpensive, it’s USD0, under 00 for many high resolution ones. Instead, they get these letters demanding thousands of dollars and if it’s a big enough player, they can take them to court and you’ve got attorney’s fees. If the infringement is willful, you can be liable for the copyright holder’s attorney’s fees as well. It can get very expensive very fast for something that’s pretty easy to avoid.
Marlana: What is the one thing you would like everybody listening to this to kind of remember and take away from this conversation?
Ani: With respect to these images, whether they are photographs or digitally created images, I think what you need is to always assume that the image is copyrighted, but I think if you operate from that framework, you’ll always be playing it safe. There are ways to use (I’ll just use Google for example, because I’m familiar with it) there’s ways to search images by license type. So, you can search only for images that are in the public domain or all images that have free for personal use licenses attached to them. Any time you see an image, whether it has a copyright notice on it or not, just assume it’s owned, and you don’t have the right to use it.
Marlana: When in doubt, you don’t have them!
Ani: That's right! Especially with copyrights because like I said, that’s established at the point of creation, point of publication. You are not required to file on it. There has been cases people will see the infringement, then they will register the copyright and then they will sue for infringement. Now you are infringing a federally registered copyright. So, it’s always just safe to always assume you don’t have the right to use the image, and there’s plenty of very inexpensive images out there that you can get a license for and plenty of free images as well.
Marlana: Great advice! Okay Ani with that in mind, I’ve got four final questions for you.
Ani: Yep!
Marlana: The first one is, what’s the best piece of advice you were ever given?
Ani: Best piece of advice! I was actually thinking about this this morning. One time somebody told me that if you are worried about something, try to remember what you were worried about a week ago and I often find out that it puts things in perspective for me because I can barely remember what I was worried about a week ago. So, chances are, what’s bothering me now it's not gonna be a long term issue.
Marlana: Love that!
Ani: Yeah! One bigger piece of advice I got from a dear friend.
Marlana: Share us one thing on your bucket list
Ani: Bucket list! I mean, there are of course many places I wanna travel to but there is one thing I would like to do, which is to have a chance to savage a connection with my relatives who are still in India. I have a lot of cousins who I haven't seen in a long time, people I haven't met yet, I think it would be great to be able to just go there and connect with everyone of them at least once.
Marlana: Have you ever been?
Ani: I have been! And I’ve been several times, but it was always in summers when I was a kid and I had very little input about what the plan was while I was there. So, I would like to go there as an adult to meet the siblings, cousins I have never seen.
Marlana: Nice! When the toy companies finally get around to make an action figure of you, what accessories will it come with??
Ani: This one is easy! It will be a toothbrush and a guitar.
Marlana:Why?
Ani: When I was young during summers that was basically it. I had those two things I could be anywhere for hours and nights at the time. I think that's probably the two accessories they would use, it wouldn't be the most exciting action figure but that's an accurate description.
Marlana: The last thing is, if anyone ever needed legal advice, wants to speak to you, how do they find you?
Ani: The best thing to do is go on our website (nkpatentlaw.com), NK, kangaroo, it’s an easier way to remember. Under our team you can find all my contact information there along with everyone else's at our firm.
Marlana: Thank you so much! Thanks for being here
Ani: It’s a pleasure, Thanks Marlana