Originally published August 17, 2018 in Rangefinder Magazine.
I didn’t know it was copyrighted - it was all a mistake or misunderstanding.
Ignorantia legis neminem excusat - Ignorance of the law excuses no one. So when people say things like, I didn’t know it was illegal to copy your photo, or even, I didn’t know this photo was copyrighted, you can be assured that this is no excuse.
What’s more, copyright is a strict liability civil offense, which means that you are still liable even if you did not know you were infringing. All copyrightable images are protected by copyright from the moment they are “fixed in tangible format” - or, for photographers, the moment the shutter clicks. It does not matter if a photo contains the “©” symbol; all photos are protected by copyright unless they have passed into the public domain. However, if your photo does contain a notification of copyright - the © symbol or even the word “copyright” - then any infringements are considered willful and subject to extra statutory penalties. So the law does care whether you knew an image was copyrighted when you copied it - but only to punish you more if you did know.
I didn’t post the photo; someone I hired did.
Respondeat superior - Let the master respond. When you hire someone and they do something illegal, you are generally responsible for that illegal act. There is plenty of room for nuance in this rule, but generally, if you supervise someone, you are responsible for their infringements - even if you didn’t directly tell them to copy someone’s photo, you still had the power to tell them not to. If you have the power to stop an employee from infringing and don’t, then you are probably responsible for that infringement.
The photo was in the public domain.
If it’s a photo you took, it’s not in the public domain, if only because you are still alive. Copyright terms last for the life of the author - that’s you, if you took the photo - plus 70 years. Images do not fall into the public domain until after this term has expired. Charles Dickens books and Vincent Van Gogh paintings are safely in the public domain; your photographs probably are not. There are of course some nuances, and copyright terms can be different if the author of the copyright is a corporation (since corporations do not grow old and die like humans, it doesn’t make sense to attach copyright terms to their lifespan), but in general, if you are alive enough to be upset that someone has used your photo, your photo is probably not in the public domain.
It was fair use, because I only used part of the photo.
Fair use is a tricky, slippery, fact-based distinction that can only be made by a court. While there are certainly steps that you can take to make sure your work falls under the fair use umbrella, there is no easy way to make sure that a use is fair. It is certainly false to say that a use is fair just because only a part of the photograph was used.
When a court determines whether a use is fair, it will ask a number of fuzzy, nuanced questions: What is your purpose in copying this image - is it for art, or for news, or for education? Have you copied the whole image, or the “heart” of the image, or just small, tangential parts of the image? Will your copy prevent the original author from making money from their work? Was the original work meant as art, or news, or something else entirely? The court understands that when you author a copyrighted work, you are entitled to receive the profit stream from that work. When someone copies your work and steps in front of you, catching profits that should be yours, then their use is not fair.
I hired the photographer so I own the photos.
If the photos are works made for hire, then yes, you own the photos. But if you hired someone to take photos without signing a contract that specifically states that the photos will be “works made for hire,” then you do not own the photos. Works made for hire must be specifically contracted, and if your photographer didn’t specifically state that they would take the photographs as works made for hire, then your photographer owns their photographs. Just because you hired a photographer does not mean you own the photos.
I gave credit to the photographer and took it down when asked.
It is absolutely appropriate and good to give credit to photographers, and absolutely appropriate to take down images when requested to do so by their owners. But stopping an infringement is not the same as not infringing, and mentioning someone’s name while infringing their work doesn’t mean you aren’t infringing. Imagine trying to walk out of an art gallery with a painting under your arm - saying whose painting it is doesn’t change the fact that you’re trying to steal it, and offering to give the painting back when confronted doesn’t change the fact that you tried to steal it. That said, most copyright holders will choose to forgive and forget if a small-time infringer apologizes and takes down the infringing work. However, if your infringer is a larger, corporate entity that should know better, don’t be afraid to press them on their past infringements.
If you’ve sent out some cease-and-desist letters of your own for your copyrighted work and received any of these responses, know that none of them will stick in a court of law, and if you need to beef up your response to these excuses, don’t be afraid to contact an attorney.