You have an Instagram, a public Facebook account or Snapchat and you are pretty happy with your selfie-taking skills. You may have even put up photos taken by a friend who is practising their professional photography. Then you find out that an artist is selling the photo from your profile in a gallery. Do you have a right to the images and can you stop the artist from selling your photos for profit? This article details who owns intellectual property in social media photos, and what you can do to prevent copyright infringement.

Who is Richard Prince?

Richard Prince made headlines in 2014 for his show at Gagosian Gallery ‘New Portraits’. The artworks on display consisted of blow up photos from Instagram accounts with comments added below by Prince. Since the exhibition, one of the original photographers has brought a complaint against Prince for reproducing a copyrighted photograph with only minor modifications. This action followed after the photographer sent cease and desist letters to Prince. However, not all the original photographers have filed complaints against Prince. The following parts of the article look at why this might be the case and the difficulties with copyright and social media.

Who Owns the Intellectual Property?

In photography, the photographer usually owns the copyright of the photos. For example, the photographer still retains copyright in commissioned photographs despite someone else paying the photographer to take them. However, if someone employs the photographer, the employer typically owns the copyright where the employment agreement states that the employee will transfer intellectual property to the employer.

Owning the copyright means that the photographer is entitled to reproduce the photo, publish the work, and communicate it to the public. You may be able to prevent an individual who downloads the image from using it if copyright does attach to your photo. For example, you will breach copyright if you download a stock photo without permission, and use it for advertising purposes.

Can I Enforce Copyright Ownership?

The photographer taking action against Prince has found it difficult (as have previous artists trying to enforce their copyright against Prince) because of the concept of ‘fair use’.

Fair use is a defence to copyright infringement, and the court will always determine it on a case by case basis. The court will take into account the following non-exhaustive factors:

  1. The purpose and character of the artwork;
  2. The nature of the artwork;
  3. The amount of copyrighted material; and
  4. The effect of the use on the value of the original work

Cases like Prince have shown that you can attempt to enforce copyright ownership by using cease and desist letters as well as taking court actions. However, unless you have taken steps like watermarking your photos, you may find it difficult to enforce ownership against an artist.

How Do I Protect My Photos?

If you don’t want people like Prince to sell your selfies in an art gallery without your permission, then there are a few steps you can take:

  1. You can make your social media account and photos private;
  2. Add a copyright mark or watermark to the photographs; and
  3. Make it clear in your taglines that these are not just photos, but artistic portraits.
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If you have any further questions about copyright infringement, get in touch with our intellectual property lawyers on 1300 544 755 for advice.

Sam Auty

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