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.
***

If you have any further questions about copyright infringement, get in touch with our intellectual property lawyers on 1300 544 755 for advice.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Sam Auty
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy