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Copyright Infringements, Bad Customers & Lessons Learned

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A few months ago I wrote here about how I lost a regular photography client for real estate photography in 2019. While I got back with them on a much more limited basis for a few months in the second half of the year, things took a decidedly nasty turn in late November. Here's what happened.

 

One of the things I tend to do regularly to canvas new work is scour not only the local real estate listings for agents who clearly need help, but I also do the same for Airbnb hosts who could benefit from improved photography too. I was looking through one of the more popular beachfront areas on Airbnb when I noticed some photos that I recognised instantly as being my own of an apartment that I had photographed for the realtor mentioned in my previous article. The property owner had decided to use my images to sell occupancy on their short term rental on Airbnb.

 

My initial reaction to this sort of infringement is usually one of ire, but I have learned over the years that it is best to try and turn a bad situation into a good one. Having met this person when I photographed the apartment I decided to reach out as tactfully as I could in the hope of turning this negative into a positive for my business. Boy, did this backfire on me!

 

I received a reply after a few days from the owner who irately informed me that she had obtained permission from the estate agent to use the images on Airbnb so that they could try and sell it as a going concern. Nobody had consulted with me from the agency about this so I immediately wrote to them asking for an explanation.

 

In the interim this seller decided that it would be a good idea to begin posting very libellous reviews of my business wherever she could online, accusing me of trying to scam her. One of these was on Google, so I immediately posted a response explaining what had happened and I also contacted Google to have the very obviously offensive ‚Äúreview‚ÄĚ removed from my business page. They complied almost immediately, fortunately. However, for some unknown reason I have two Google My Business pages and I can‚Äôt seem to get the other one removed, despite reporting it several times to Google. I also recently found another "review" she made on a popular local website. I got them to remove it because she pretty much called me a "crook" in the title of her rant.¬†

 

At this point I was actually quite livid with the situation and I wrote back to the agents telling them that this was what their client had done. You have to understand that I had built up a very close relationship with this company having shot over 450 properties for them in the space of 18 months. The work and service I gave them as they were trying to establish themselves in the local market from scratch was exemplary so I thought that they would at least have my back. How wrong I was.

 

After a week or so I got an email from the principal agent of the company (who is based in Johannesburg) telling me that I had no right to contact their client and that since they had paid for the images they owned copyright to them. They also requested that I write a letter of apology to their client and in the same sentence he terminated whatever arrangement they had with me as a photographer. I was as mad as Lieutenant Dan sitting in Forrest Gump’s shrimping boat during the storm. I wrote back to the agent and pointed out to him that since I had established myself as a professional photographer in 2008 I had always retained copyright to all work I did, unless expressly mentioned in the quotes or invoices I produce (for which I would obviously charge extra). I also refused to apologise to their client, but I did offer to reshoot the property for free using Airbnb guidelines, provided the agent was present and not the owner. They never responded. 

 

As annoying as this incident was, it got me curious about copyright law in South Africa. Out here we tend to read a lot about infringements of copyright in other countries and what photographers there do when they have these situations. In many cases we erroneously assume that similar rights are in effect here, where in reality copyright n the US and UK works quite differently to South Africa. As a photographer you do automatically own your rights at the point of making a photograph without having to register them, but there are some caveats. Here’s an excerpt from the most recent Act pertaining to ownership of copyright. Take particular note of paragraph (c).

 

21. Ownership of copyright.

(1) (a) Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work.

 

(b) Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.

 

(c) Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein by virtue of section 3 or 4.

 

(d) Where in a case not falling within either paragraph (b) or (c) a work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.

 

(e) Paragraphs (b), (c) and (d) shall in any particular case have effect subject to any agreement excluding the operation thereof and subject to the provisions of section 20

 

As I am not a lawyer, my interpretation of this act may be questionable, but if I am correct in this, while the estate agent may have commissioned me to photograph these properties and can assume rights to use those photos for the purposes for which they were commissioned (i.e. to sell the property), the bit supporting their rights in paragraph (c) that says ‚Äúand the work is made in pursuance of that commission‚ÄĚ leads us to the end of paragraph (b) where it says ‚Äú‚Ķin all other respects the author shall be the owner of any copyright subsisting in the work‚Ķ‚ÄĚ. Does that not infer that if the images are being used for alternative purposes to which they were commissioned that my rights as author are being infringed? I think it does. I most certainly did not agree to any estate agents being able to pass my images on to third parties so that they can run commercial accommodation businesses with them. Nor did I ever agree to be an employee of the company commissioning the work.

 

There’s a part of me that wants to put this snotty little property seller in her place with this exploitative behaviour and bill her handsomely for the use of the work. However, in my experience with people when it comes to money matters, sometimes it’s just better to walk away from fights that even though they seem righteous, will drain you in other ways.

 

What’s your view?

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Sue em!


Mike Gorman

 

Nikon Z6, Nikkor Z 24-70, 35, 85, FTZ adapter 

Lumix G9 , GX8 - Panasonic 15, 20, 25, - 8-18, 12-35, 12-60, 35-100

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I know that advice from lawyers can be expensive, but are there any legal aid organisations that you could refer the legislation that you have dug out and see what in their opinion your rights are and the best options for redress?

 

Good luck.

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2 hours ago, Hugh_3170 said:

I know that advice from lawyers can be expensive, but are there any legal aid organisations that you could refer the legislation that you have dug out and see what in their opinion your rights are and the best options for redress?

 

There might be, but my feeling is that even if I am within my rights to charge her for the ongoing use of the images, her vindictive actions may end up causing me more damage in the end than I would obtain recompense. I do have a screenshot of the libellous review she put on a consumer affairs website (which they wisely removed after I alerted them to it), so I am more inclined to go after her for that than for the use of the images. The only thing is, the law doesn't always get applied the way we think it would. I know from first hand experience in dealing with my father's estate that even when you have a rock solid case, getting it in front of a judge isn't always as straight-forward as it sounds in the movies. :( 

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Yes, going her for the libellous screen shot may have less litigation risk for you than a case about the copyright issue.

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I am not a South African lawyer, so please do not rely on this as legal advice, but here are my thoughts.

 

The South African wording you quote is very similar to the wording in the UK Copyright Act (breach of copyright?), but the UK Act does not include the words "subject to the provisions of paragraph (b)".

 

The UK Copyright Act 1956 was repealed in 1989; current UK law awards copyright to the creator even when the work has been commissioned by a third party (various exceptions apply).  So under UK law you would be entitled to the copyright in the photographs unless you had agreed otherwise.

 

I have tried to find what is meant by "subject to the provisions of paragraph (b)", but none of the online resources I have found discuss these words at all.  All say simply that the copyright in commissioned works belongs to the person commissioning, in this case the Estate Agent.  

 

I find it hard to understand how the words "subject to the provisions of paragraph (b)" would apply in practice, but it does seem that in any event they would only apply in the case of a proprietor of a "newspaper, magazine or similar periodical".  That does not seem to cover an Estate Agent publishing property particulars.  So subsection (b) would probably not be relevant.  This is consistent with the various online comments which state that the commissioner, not the photographer, owns the copyright to commissioned photographs.

 

So I fear that in the present case you do not own the copyright in the photographs, and the Estate Agent does.

 

This is obviously very disappointing, and means that suing for breach of copyright would be risky.  

 

There are currently legislative proposals in South Africa to change copyright law, and one of the proposed changes would be to reverse paragraph (c), so that the photographer, not the commissioner, would own the copyright.  I do not know how this would affect photographs made before the new law came into force, but I would expect that the change would only apply to photographs made after the law changed.

 

As I said, I am not a South African lawyer, and before making a decision you may want to consult a South African lawyer.  Alternatively, there may be some South African photographers' society or group which has issued guidance, or could answer questions.  This must be a problem that many other photographers have faced.

 

Going forward, it would be a good idea to include in your contract specific wording giving you the copyright in commissioned works, at least until the law changes.  This wording should be set out up front - including it on the invoice would be too late.  You may want to get the wording from a lawyer, as there may be legal pitfalls to avoid.

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Thanks Anthony for your expert input here. It is a fairly annoying situation as far as our legal rights are concerned as South African photographers. For me the main annoyance is that the commissioning was for the purposes of selling the property for that agent only, not for them to allow onward transmission for a different purpose and for a different party. I would most certainly have charged a different rate had I wanted to relinquish those rights. I will make very sure that in future all my customers know that if they wish to purchase copyright they will be doing so at a higher rate. I have put wording to this effect up on my website now but I need to figure out a way of including this as a digital acknowledgement prior to them placing an order on my billing site.

 

Generally we don't work to contracts here, but I think that in light of this I need to review my policy. The problem is that at the lower end of the market (where I work) you are dealing with people who are not sophisticated in legal matters. As soon as you ask them to sign or agree to legal things which they may not fully understand (especially regarding copyrights) you run the risk of scaring them off. 

 

I don't worry so much about the loss of income where these infringements happen as I don't assign a huge value to them anyway. It's just that when people ask for a finger and then end up taking the whole arm that I feel jerked around.

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I read this the same as Anthony, if the estate agent paid you to take the photos, they own them outright and you have no future recourse to them.  In fact you may be in breach of copyright if you subsequently post them here.

 

on the other hand the pictures you took for the NYT article, you could resell them to a real estate guy, but not to another newspaper.

 

I‚Äôm¬†not sure how you would work around this to retain copyright in a commissioned work. ¬†Perhaps you would have to sell ‚Äúmarketing services‚ÄĚ and then subcontract yourself to provide photographs as part of the services. ¬†It is a bit of a legal minefield really and doesn‚Äôt look too fair to your position. ¬†You will need some local legal advise to work this out, perhaps subscribing to a local professional photographers association might be a way to avoid paying too much to a lawyer.

 

 

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"Going forward, it would be a good idea to include in your contract specific wording giving you the copyright in commissioned works, at least until the law changes.  This wording should be set out up front - including it on the invoice would be too late.  You may want to get the wording from a lawyer, as there may be legal pitfalls to avoid." -Anthony

IMO,  Save time, money and aggravation and walk away from this particular incident.    Properly composed, legally valid language in the contract can protect you next time.

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Keith B.

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I believe that the key paragraph in this legislation is (e), which basically sys that the rights assigned in the other paragraphs fall away subject to agreement by both commissioner and undertaker. This is the missing part for me in my dealing with this estate agent and one that I need to rectify somehow so that there is no misunderstanding in the future. I think I know how to do this. If I create two different products for the same service, one where copyright remains with me and another where copyright is transferred, there can be no quibble about it down the line. 

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6 hours ago, crowecg said:

on the other hand the pictures you took for the NYT article, you could resell them to a real estate guy, but not to another newspaper.

 

Interestingly when the NYT approached me to do that commission they expressly said upfront that copyright would be shared between us, so kudos to them for being upfront with that. 

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