Many photographers speak with other photographers, many are interviewed, some appear on podcasts and others provide quotes and text for others to use in teaching. Talking is good and sharing words is a way of promoting your work and raising your profile. So far, so good. But what if your words are then used in a book without your knowledge or permission? Without payment! How would you feel then?
In the rarified world of academic publishing the referencing of others thoughts, words and writing provides the majority of the content. It is the purpose of such reflection to use the thoughts and words of others to either support or form an argument. This is often done with such frequency that it can become impossible to read or understand. If you have ever had to read it you will know what I mean.
The use of such referencing falls within educational copyright under UK copyright law, that allows works to be used for educational purposes, such as: the copying of works in any medium as long as the use is solely to illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement, and the use is fair dealing.*
If your words are used within this context you will probably not know about it unless you are a paid-up member of an academic platform such as Academia.edu. And that is okay because no one is benefiting financially from your wisdom, knowledge or experience under their name.
Let’s be aware that copyright is everywhere.
Every video, film, picture, piece of music, photograph, written piece, audio file, work of art, every building design is copyright protected, at least initially and at least to some degree. As photographers we are particularly sensitive about the copyright of our own images and the use of those images by others without permission or payment. But we must also be sensitive to the copyright of artefacts created by others and ourselves outside of the photographic medium.
Many photographers write about their work and appear on podcasts – therefore becoming part of an audio file – and this material remains their copyright just as a photograph does. I have heard of writer/editors in the past that did not seek permission to include text created by others in their books. I presume that they believed that this was normal in publishing, in academic writing they would be correct in non-academic writing they are not.
Legal advice on issues of copyright is often nuanced and complicated to unravel but I did some research and found this on the Stanford University Library website on Copyright and Fair Use by Mary Minow in 2003. I think Mary brings some clarity here.
“Often, in order to prove that a book, article, or other writing has been infringed, an author will point to one or more similar phrases that have been copied in the infringing work. (Infringement requires access and proof of substantial similarity.) Not all similarities, however, amount to infringement. Separated from the original work, common short phrases are usually unprotectable. For example, if the only thing in common between two works is the phrase, “Hip Hop Behind Bars,” or the phrase “safety core” to describe a rope product, that alone is not enough to prove infringement. Similarly, if two legal publishers use similar subject headings, neither will be able to claim infringement on that basis alone. Even if the two works contain dozens or hundreds of similar short phrases, that’s not enough to demonstrate substantial similarity if the short phrases are common, public domain or do not “exhibit the minimal creativity required for copyright protection.”
“In short, sharing similar phrases, particularly common descriptive phrases, is usually not enough, by itself, to win a copyright claim. In order to stop an infringer, the author must either demonstrate that the phrases exhibit sufficient creativity, or that the taking of the phrases, along with other elements such as similar plot or characters, amounts to infringement.”
“In analyzing the fair use defense when short phrases are borrowed, a court will aggregate the phrases and weigh the value of the phrases in relation to the work. Or, put another way, are the phrases the heart of the work? The more important the phrases are to the work, the harder it often is to win a fair use battle.”
I am not a lawyer, but neither are you and yet we need to understand this stuff – and the national differences as to how copyright is applied – if we are to ensure that our work and words are not inappropriately or illegally used. Many urban myths exist when it comes to copyright, I’m sure many of you will have heard them many times from clients ignorant of how they can use images they have commissioned and what they are actually paying for. In those cases it becomes your responsibility to explain the reality of your copyright ownership.
I suggest that it is your responsibility to do the same when it comes to work associated with your photographic practice.
I recently edited a book of edited extracts from my weekly podcast. On the last page of the book it states that all of the copyright of all contributions remains with the contributors. I asked every contributor to the podcast if they wanted to be in the book, many said yes, some did not respond to my email. If they did not respond their contribution was not included. That is both respectful of the photographer and the ethics of copyright.
Many publications have asked me to give them those contributions to publish, I have refused, it is not my decision, it is that of the copyright holder.
Our photographs and our words have value and if they did not others would not try to use them within artefacts to gain profit. Ignorance is not a defence for using someone else’s work when a simple request email could be sent. So, the next time you speak to someone or give them a quote or a brief piece of writing make sure that the person you are speaking with understands that the copyright for that material remains with you. That conversation or those words are for one time usage and not to be syndicated, loaned or reproduced without your knowledge. That part of copyright is perhaps the easiest part to understand.
Grant Scott is the founder/curator of United Nations of Photography, a Senior Lecturer and Subject Co-ordinator: Photography at Oxford Brookes University, Oxford, a working photographer, and the author of Professional Photography: The New Global Landscape Explained (Routledge 2014), The Essential Student Guide to Professional Photography (Routledge 2015), New Ways of Seeing: The Democratic Language of Photography (Routledge 2019).
His book What Does Photography Mean to You? including 89 photographers who have contributed to the A Photographic Life podcast is on sale now £9.99 https://bluecoatpress.co.uk/product/what-does-photography-mean-to-you/
© Grant Scott 2020