Photographic material plays an essential role in your brand development strategy. High-quality images enhance the visual link between your business and its consumers, enabling you to engage with your audience swiftly and directly. You might use photos for a wide variety of reasons, including to showcase your products, promote your services, and introduce your consumers to the team behind your business, to name just a few.
In this article, our specialist copyright lawyers explain how copyright can protect your photographic material. They discuss how to ensure you own the copyright in your photographs, what to do if someone uses your photos without consent in the UK or abroad, and how to prevent future infringements.
If you’re not sure how to claim ownership of your photos, what to do if someone uses them without permission or how to stop it from happening again, we can help. Our copyright lawyers offer clear, practical advice to help you take control and protect what’s yours.
Contents:
- Do I automatically own the copyright in the photos my business creates?
- What rights do I have if my image is copied abroad?
- What should I do if someone is using my photos without permission?
- How can you prove the image is yours?
- How can you prove copyright infringement has taken place?
- What should you do once you have gathered all the necessary evidence?
- Can I sue someone for using my photo without permission?
- What are the consequences of copyright infringement for the Infringer?
- Can the individuals behind a company be held personally liable for copyright infringement?
- How can I protect my photos to stop this happening again?
- Summary
Do I automatically own the copyright in the photos my business creates?
Copyright arises automatically in the UK, meaning you do not need to register it to gain protection. The photographer usually owns the copyright in a photo, but there are some exceptions to this general rule.
Who owns the copyright in photos taken by your employees?
The copyright in photos taken by employees during the course of their employment typically belongs to their employer. You should put the position beyond doubt by including express provisions in your employment contracts assigning any intellectual property rights in the material your employees create for you.
Who owns the copyright in photos taken by agencies?
When you commission third parties, such as an external photographer or advertising agency, to take photographs for your business, the third party will own the copyright in the resultant material unless you have put contracts in place assigning the intellectual property to you. The importance of watertight contractual documentation to put your ownership beyond dispute can’t be overstated.
What rights do I have if my image is copied abroad?
Copyright is territorial, meaning it protects your photos in the UK only. The law acknowledges the inadequacy of this protection in our digital age. To address the issue, an international system of copyright protection exists to enable copyright owners to enforce their copyright abroad.
The system is governed by several international treaties, including the Berne Convention. At the time of writing, 181 countries have signed up to the Berne Convention, including the UK, the US, and China. Under the Convention, signatory countries agree to protect the copyright work of nationals of other signatories in the same way as they would protect work created by their own nationals.
Despite copyright being a territorial right, your work can be protected against infringement abroad. The relevant laws will be those of the territory in which the infringement took place, and you would likely need to bring legal proceedings there. Our copyright lawyers can help you with this. They have extensive experience in assisting clients in enforcing their copyright abroad, working closely with a network of trusted advisors worldwide.
An additional complication inherent in tackling copyright infringement abroad is tracing the infringer. When enforcing our client’s rights against infringements in a different country, our copyright lawyers employ a range of approaches to identify and track down the entity behind the infringements. For example, they might be able to ascertain the infringer’s identity from the ‘About Us’ or ‘Terms and Conditions’ sections of the website on which the infringing material is being sold or displayed. Sometimes, they might make a test purchase of the infringing product to see who receives the money. Once they have obtained the contact details for the infringer, our solicitors will advise you on the best way to tackle the problem.
What should I do if someone is using my photos without permission?
Photos are an incredibly important element of your brand’s identity. Used well, they can create a lasting impact on consumers, instantly showcasing your offerings and communicating your brand ethos across all marketing platforms. Take, for example, Nike’s branding photography. By using striking photographs of sportspeople engaged in awe-inspiring feats of athleticism, the company effortlessly reinforces its image of innovation, inspiration, and excellence.
Given the importance of photos to your branding strategy, you need to take steps to protect them and enforce your copyright against third parties that are using them without permission. Failing to do so can have severe consequences, including:
- Brand dilution. When consumers stop associating your photos solely with your brand, your brand identity suffers.
- Loss of consumer trust. Consumers seeing photos they associate with you will likely assume that the goods or services originate from your business. If those goods or services are substandard, your reputation in the market can suffer despite you having nothing to do with them.
- Loss of consumer loyalty. Consumers buy into brands for different reasons. For example, consumers favouring high-end goods are typically enticed by brands that convey exclusivity and prestige. If third parties use your photos without your permission, you risk compromising your core brand values and, in turn, losing the loyalty of the consumers who were attracted by them.
How can you prove the image is yours?
Only the copyright owner can take action to halt infringing activity. To enforce your rights, you must prove that you own the copyright in your photograph.
You don’t have to register copyright to benefit from protection. Although, the UK Copyright Service offers a voluntary registration service that you can use if you wish. There’s a fee for registering your work with the service, but it can provide strong evidence of your ownership of the work and the date on which you created it.
If you don’t register your work with the UK Copyright Service, many other types of evidence can assist you in proving ownership, including:
- The original photo in RAW format.
- Details of the creation process of the photo. This may include documentation such as sketches of the scene, minutes of team meetings, and earlier versions.
- The photograph’s metadata.Data from your camera showing when and where the photo was taken.
- Correspondence about the photo, such as emails between employees, agencies, and other collaborators.
How can you prove copyright infringement has taken place?
To enforce your rights, you’ll need evidence of the other party’s infringements. The nature of the evidence required will depend on the circumstances of the infringement.
For example, if someone is selling physical goods featuring your photo, such as posters, making a test purchase of the infringing items and keeping the receipt can be a good idea. If their infringements are solely online, for example, using your photos on their own website or other marketing material, you should take screenshots of all the web pages on which the infringing images appear.
Evidence is key in copyright infringement cases, so the more evidence you can gather to support your case, the better. Our copyright lawyers will advise you on the evidence required in your case and help you to collate it.
What should you do once you have gathered all the necessary evidence?
When you’re confident that you have the evidence needed to enforce your rights, you should contact the infringing party. Save in cases involving the most trivial infringements, it’s always a good idea to take legal advice before making contact. Copyright law is complex, and working with experienced copyright lawyers like ours will ensure you don’t do anything that may prejudice your legal position and cause further brand damage.
Can I sue someone for using my photo without permission?
Our clients are usually relieved to hear that most copyright disputes are settled before they reach trial. Our copyright lawyers begin by sending a formal letter, known as a letter of claim, to the other party, detailing the nature of our client’s rights and how the other party’s actions are infringing them. They set out the steps the other party must take to avoid legal action, which typically includes refraining from further infringements and paying damages, and they impose a deadline by which the steps must be completed.
Receipt of a letter of claim from well-known copyright lawyers like ours is often enough to persuade an infringer to stop using a photograph or at least to engage in settlement discussions. If the infringement persists, our copyright lawyers will advise you on the possibility of taking legal action against them.
Litigation should always be a last resort, but it is sometimes unavoidable. If the other party refuses to stop their activities and your business is suffering significant harm, you may need to issue a claim to obtain a court order compelling them to do so. You may also need to consider litigation in cases involving repeat infringers with whom you have previously settled but who restart their infringements under a different guise. Rights owners sometimes take legal action against an infringer to send a message to them and others as part of a wider policy of deterrence, although you’d need to consider the benefits of this exercise in light of the costs.
For a general overview of copyright infringement and the options available to a business, read our copyright infringement guide.
What are the consequences of copyright infringement for the Infringer?
Copyright infringement can be both a civil and, in some cases, a criminal offence.
Civil proceedings for infringement are brought by the copyright owner. The claim must be brought within 6 years of when the infringement took place. If the infringement is ongoing, the time limit is rolling; however, you can only claim damages covering the past 6 years.
If the claim succeeds, the court will likely grant the following relief:
- An injunction.
An injunction is a court order that prohibits the party named in it from undertaking certain acts. If they breach the injunction, the party may be held in contempt of court and imprisoned. For more information on this topic, read our how to apply for an injunction guide. - Damages or an account of profits.
These are the financial remedies for infringement. The copyright owner can choose either damages, which is where they are compensated for any losses caused by the infringement, or an account of profits, which is where the infringer pays the net profit they made from their infringement to the copyright owner. The copyright owner will choose the remedy that yields the highest amount.
In cases involving particularly flagrant copyright infringement, the court may award the copyright owner additional damages, usually calculated as a percentage of the basic damages award. - Delivery up or destruction.
The court will order the infringer to either deliver up the infringing material to the copyright owner or destroy it. This remedy ensures that the material is taken off the market and causes no further harm. - Declaratory relief.
The court may agree to make a declaration that copyright subsists in the photograph and that the other party’s actions infringed that copyright. The copyright owner can use this declaration to deter other would-be infringers. - Dissemination and publication of judgment.
The court can order the infringer to publish details of the judgment on publicly available channels, such as their website. This can be useful in deterring other infringers, as well as embarrassing the infringer. - Costs.
The usual litigation rule is that the losing party must pay the successful party’s legal costs. Unless the circumstances of the case are exceptional, the successful party is unlikely to receive all of their costs, but can expect to recover around two-thirds.
The majority of copyright infringement claims are brought in the civil courts. While criminal cases can be quicker and cheaper than civil proceedings, the burden of proof in civil cases is lower than that applicable to criminal ones, and the copyright owner can seek the financial remedy of damages or an account of profits. Our copyright lawyers will consider the facts of your case and advise you on the best way to proceed.
Can the individuals behind a company be held personally liable for copyright infringement?
The individuals behind a company can be held personally liable for copyright infringement in civil cases if they have knowledge of the infringing acts. The mere fact that a person is a director of a company does not make them liable.
In criminal prosecutions, the directors of a company or anyone acting in the capacity of a director can be guilty of an offence and prosecuted.
Depending on the facts of your case, our copyright lawyers may advise you to issue proceedings against both the company and the individuals behind it. For example, if a specific person owns all the shares in a company, serves as its only director, and controls everything it does, you may have cause to join them in the claim against the company on the basis that they had knowledge of the infringing acts. That way, if your claim succeeds, you can enforce your judgment against both the company and the individual personally.
How can I protect my photos to stop this happening again?
Nobody wants to be embroiled in a legal dispute, so taking steps to prevent infringement from happening in the first place is preferable to addressing an infringement that has already occurred.
Examples of the steps you might take to prevent future infringements include:
Using image tracking tools to detect any use of your photos: Image tracking software scans the internet for any images that are the same as yours. You can then review those images to ascertain whether they infringe the copyright in your photo.
Image tracking tools can be particularly useful for businesses with widespread infringement problems that can justify the cost as part of their brand protection strategy.
Watermarking your images: Watermarks can deter would-be infringers from stealing your work, but they’re not foolproof since they can be removed with photo editing software. If you do watermark your images, you should make sure the watermark is placed in a location that can’t be easily cropped out.
Using clear copyright notices on your website and marketing materials: While copyright notices might not stop determined infringers, they can be helpful in alerting anyone viewing the material to your rights and discouraging them from stealing it.
Using low-resolution images: Low-resolution images can look fine as a thumbnail, but the quality will be too poor for anyone downloading them to use. If limiting your use of your photos to thumbnails on your site works, using low-resolution images can be a useful tool in preventing infringement.
Disabling the right-click feature: Anyone viewing your photo online can save it to their device by simply right-clicking and using the ‘save picture as’ option. By turning this option off, you can make it more difficult for unauthorised third parties to save your images. Of course, they can still take a screenshot, but you can use plug-ins to prevent them from doing that, too.
Registering your copyright with a third-party agency: Copyright arises automatically in the UK, so there’s no need to register the copyright in your photo to protect it. If you want to take a belt-and-braces approach, you can register it with an agency like the UK Copyright Service. There’s a fee to register, and it won’t necessarily prevent infringement, but registration can provide valuable evidence of your ownership of the photo. If costs are an issue, you can rely on other evidence to prove your creation and ownership, such as the types we listed earlier in this article.
Summary
Photographs are an integral part of your branding, and it is important to protect them against unauthorised use to protect your brand and your business’s profitability. Copyright law is complex and tricky to navigate, but taking legal advice from copyright lawyers like ours will ensure you understand the extent of your rights and enforce them effectively.
