Someone might be publishing one of your photographs right now. Without your permission.

Photographers today are faced with the very real possibility that their rights are being violated due to the simplicity that digital media brings to the act of duplication and distribution of their work. Your ability as a photographer to understand and apply the tools and techniques available to protect your copyrights will contribute largely to how easily someone else can wrongly profit from your work and how easily you can seek remedies for that infringement.

This is a long article. I get into some detail about copyright law, the implications of at least two types of self-attribution you can use to assert your copyrights, the technical aspects of metadata and some of its history, and more. But because I am considerate and I want the impatient and lazy among you to be equally satisfied to have dropped by (thank you, by the way), here are the major points:

  • The Orphan Works Act of 2006 does not threaten to dilute your rights as a copyright holder. Which is to say, it wouldn’t even if it actually passed, which it hasn’t.

  • There are two major forms of metadata, one older one and one newer one, and you should learn how to use them properly.

  • Watermarks are so ugly.

Now, if you feel up to it, dive in.

An article ran in this month’s issue of Shutterbug magazine called “How to Protect Your Images: Photos on the Web Might Be Fair Game.” The article was written by Jon Canfield and centered around one specific concern raised by a little piece of legislation called H.R. 5439 or, in plain English, the “Orphan Works Act of 2006,” which has not yet been passed.

Setting aside for a moment the somewhat alarmist phrasing of the article’s title, which seems to imply that the government could declare open season on copyrighted works on the Internet, and ignoring the calculated impression a reader might get from the first two paragraphs that the Orphan Works Act will do just that, Canfield offers several good tips.

Orphan Works Act of 2006

Before delving full-throttle into the nitty gritty of copyright law and what you can do to protect yourself, I must first dispell concerns about the Orphan Works Act of 2006. If you want to read it, there it is, in all of its PDF glory. So what is an “orphan work,” anyway? An orphan work is one whose copyright holder and rightful owner cannot be reasonably discovered. The Act attempts to fill the void in current copyright law where orphan works live. Canfield says:

Boiled down to plain English, this act says that if a reasonable effort is made to find the owner of an image, and that search is unsuccessful, the work can be used at no charge and without credit to the original creator.

There is mounting concern—legitimate concern—among the agencies of various governments equivalent to our Copyright Office regarding the fate of these creative works whose owners may not be outwardly apparent or may have disappeared and left no next of kin, etc., etc. It’s all very legal and complicated, but suffice it to say, if you want to use a painting that you found somewhere and nobody could identify its creator, so you searched up and down for them but found nothing, you might use that painting only to have the creator suddenly reveal him or herself and sue you. And they could win.

The Orphan Works Act of 2006 seeks to “limit remedies” sought by the creator of a work when their ownership status could not “reasonably” be discovered. That doesn’t mean, by any stretch of the imagination, that people could start using your photographs and somehow slip through a loophole in copyright law that would absolve them of guilt. First and foremost, the Orphan Works Act of 2006 hasn’t even been passed, so none of its provisions have any legal weight whatsoever. Second, even if it had been passed, it doesn’t give additional rights to copyright infringers. In point of fact, it places the burden of proof on the infringer to document their search for the proper owner of the copyright in question and to further prove that they performed the search with “reasonable diligence,” making use of “reasonably available expert assistance” and “reasonably available technology.”

Furthermore, the Act also holds that if the infringer had discovered, to any degree, the identity of the owner of the work, that they must have provided attribution “in a manner reasonable under the circumstances.” In other words, if someone meant to use one of your photographs but couldn’t figure out exactly who you were, they would, under the Orphan Works Act, be required to give you credit to the extent they were able. If they only knew your first name, for instance, they would have to use it in an attribution or fail to meet the criteria of the Act’s provisions.

What that means to you as a photographer is that you should be certain of anyone’s ability to locate you as the creator and owner of your work with a reasonable level of diligence. It doesn’t necessarily mean you have to plaster your name and website URL across the middle of your images (although it could help; I’ll get into that later), but it does mean you have to make yourself available to be contacted and to do what you think is reasonably expected of you to claim ownership of your work. So what does that mean?

Let us assume that the Orphan Works Act will be signed into law. I hope that I have allayed any fears that this Act could dissolve your rights as creators outright, but as they say, you can never be too careful. The Act clearly describes the level of diligence that is expected of an infringer in their search for the owner of a work, and one of the specific tools mentioned is “reasonably available technology,” which is what I assume Canfield latched onto when he dove into the topic of metadata.

Using Metadata

Metadata refers to one of two major types of non-image data that can be embedded into certain image files. The first type is IPTC, which stands for International Press Telecommunications Council. At least as far back as the early ‘90s it has been possible to use Photoshop or a similar tool to embed non-image data into the “header” of a Photoshop, JPEG, or TIFF image using the method IPTC came up with. Eventually, though, Adobe came along and decided there needed to be more data. Around 2001, Adobe launched XMP, or Extensible Metadata Platform, which they hoped would provide even more useful metadata space within popular image formats. XMP also defines “synchronization” methods to move certain data fields back and forth between itself and IPTC; Photoshop naturally supports this.

Right now we’re in a transitional period between IPTC and XMP formats. Adobe envisions XMP basically absorbing IPTC, and although that has already begun to happen with the strength of Photoshop and Lightroom as the premiere metadata management tools in use, it’s probably a good idea to fill in every field you can regardless of which standard it’s defined in. In most applications that support metadata tagging, there is now a section called “IPTC Core” and then another for XMP. It won’t hurt you to pay attention to both.

I should note that Aperture also supports XMP metadata, but I am a Lightroom user so I won’t be able to talk about Aperture’s interface or specific support. If you use Aperture and have anything to share about metadata, please leave a comment.

Watermarks

The most popular way to assert copyright on an image is to emblazon it with your name and/or URL and/or a phrase such as “All Rights Reserved.” Personally, I find most “watermarks” to be distracting, distasteful, and poorly executed. To me, a watermark screams opportunism, perhaps a small drop of greed, and utter distrust. The level of greed and distrust that I perceive is directly proportional to the size and audacity of the watermark. Watermarks with outer glows, very thick lettering, or worst of all colors drive me up the wall. Musn’t there be a way to indicate ownership without stabbing your viewers in the eye with Photoshop filters and text set in Papyrus?

To me, the watermark has two distinct purposes:

  • To deter would-be thieves from snatching up your image and using it for their own nefarious purposes.

  • To increase awareness of (read: advertise) you and/or your website to the people who would be most interested in it: people who look at photographs.

Having a watermark probably doesn’t deter the small-time offender, but I don’t think it’s important. Someone who wants to spend the time to Photoshop out the watermark and make a very poor inkjet print of your photo because they wanted to hang it above their toilet is not the person who was going to bring you fame or fortune in the first place. Photographs prepared at web-viewable resolutions are virtually worthless outside of the Internet, anyway; prints from images of that size are not going to look very good, so the risk of being defrauded is marginal.

The copyright symbol itself and the “All Rights Reserved” phrase are so ubiquitous these days that most folks don’t even think twice before copying things and using them in all sorts of bizarre personal efforts. I say go for it; I’m a big supporter of derivative work and if you want to wallpaper your house with web resolution copies of my photographs, well, frankly I’d be honored.

The bottom line is that watermarks aren’t tremendously effective deterrents. The only way a watermark is going to truly deter a would-be offender is if it covers the image in some distracting way. Doesn’t that defeat the purpose of showing off your work in the first place? It may also be said that a visible watermark strengthens your legal copyright claim. It may make such a claim more convenient certainly, but in the eyes of the law, metadata is just as strong. Even stronger would be possessing the full-resolution version of the photograph. You have that at least, right?

As you can see on this blog and in my gallery, I chose to apply a very modest watermark to my work. My intent was to make it very easy for a casual onlooker who discovers a photo of mine outside of this site to be able to identify me, but also to disturb the original image and its impact as little as possible. Coupled with metadata, I feel that this solves the problem of asserting my legal rights to my work as well as giving me a bit of casual advertising.

I am always ready and willing to answer questions and discuss particular topics in greater detail. If you want to share your own experiences with copyright, watermarking, or metadata, please leave a comment. You are not required to sign up or log in to comment, but I encourage you to do so.