Adv Louis Nel Business Review Advice: Copyright: Photographs – ‘A picture tells a thousand words’ … or does it? Rights & obligations of the subject
When using social media, it is crucial to familiarise yourself with the applicable terms and conditions. By using these platforms, you may be granted a licence (by the host site) to use the image, but such permission does not extend to third parties!
Facebook’s terms and conditions specify that you may not use their products to “do or share anything that infringes or breaches someone else’s rights”.
Instagram features a specific ‘report by image’ button that addresses breaches of intellectual property, hate speech, harassment, and more.
Under the Protection of Personal Information Act (POPIA), photos that are in the public domain and have been intentionally placed there by the person in the photo or with their prior consent are not protected. However, consent is still recommended. Note that POPIA requires the following criteria to be met:
- Voluntary, specific, and informed expression of will
- Not merely a click-and-accept agreement
- Must be informed consent
- A clause indicating that a lack of response will be deemed as consent is contrary to POPIA
Here are guidelines on the steps you should take before using any photograph or image found on the internet:
- Look for any copyright notices.
- Look for image credits or contract details.
- Look for a watermark.
- Check the image’s metadata – Metadata is data about data. For example, metadata for a document might include information such as the author, file size, the date the document was created, and keywords describing the document.
- Perform a Google reverse image search.
- Obtain permission from the copyright owner.
- Purchase a licence.
Once you’ve completed the above steps and established whether or not the image is copyright protected, you can proceed with its usage, either freely or after entering into a suitable agreement with the copyright owner or purchasing the image.
Regardless of your role in tourism, you should include a suitable clause in your terms and conditions and on your website regarding photographs, including aspects such as taking, ownership, use, privacy, origin, and hyperlinking.
You may have heard of ‘Copyright Trolling’. This practice is described as ‘the use of algorithms or other digital fingerprint technology by some plaintiff law firms to search for or “troll” for copyright violations of music and images on the internet, including on websites like YouTube and Facebook. It targets often fleeting or short-lived infractions (e.g., using one photo four years ago or a snippet of a song in a YouTube video viewed by only 20 people) in a manner that seeks to exact costly penalties’.
This issue became more prominent in South Africa during the Covid period (perhaps due to a lack of work?), and I encountered a few cases. Initially, the claims were of absurd proportions, but I managed to reduce them materially (by up to 90%) and settle the matters without litigation. It should be noted that regardless of the morality of this approach, the outcome still depends on the merits and veracity of the alleged transgressions.
In addition to the ‘steps before using’ listed above, consider the following:
- Review your website and social media activities.
- Draft an internal policy to be monitored and strictly adhered to.
- Apply these principles when negotiating contracts with developers.
So now you have been warned, and if in doubt, do NOT use the image – it is simply NOT worth it!
Next time, I will address the rights and obligations of the photographer.
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