#createorcredit {Part 1}: moral rights of the creative

#createorcredit | Image by CATHERINEGRACE | www.catherinegrace.com.au

For the first edition of my new series, business and financial insights for the style set, I am looking at an issue very close to my heart as a former intellectual property lawyer – the requirement, under federal legislation and good conscience, to correctly credit the image creator on social media and other platforms.

In this post I want to share with you a small part the legal framework in Australia that benefits creative innovation and, most importantly, keeps things fair to all of the creatives working hard, day in and day night, preparing new work for us all to enjoy. I won’t overwhelm you with every copyright topic in this one post, instead I will talk to a single issue that is currently rife across social media – the use of images without crediting the image maker.#09 - business and financial insights for the style set - styling and photography by catherine and grace - copyright 2014For the most part, I believe the practice of not crediting the image creator is done either unintentionally or at least without malice. There are exceptions, of course. Some use other people’s images, claiming these images as their own or using these images without permission to promote their own business. Not only is this unacceptable, it can be a breach of Australian law, and the laws of many other countries, and can result in significant penalties. Is also a topic for another post.

Today I want to focus on the simple act of posting an image, be it to Instagram, Pinterest or your own blog without crediting the image maker. You may think this is a harmless act, that it is perfectly legal and that you are doing nothing wrong. This is not correct.LPL blog #14For the purposes of today’s topic the following is important to know:

  • Copyright protection is the same across all the state and territories of Australia {and most of the major themes are very similar across many other countries}.
  • In Australia, copyright protection is automatic – there is no registration process, there is no need to place a © on your work or to watermark your images. When a work that qualifies for copyright protection comes into existence – it it protected, right then at its very moment of creation.
  • Copyright protects various forms of artistic expression – for our purposes today it specifically includes paintings, drawings and photographs.
  • Copyright does not protect your logo, business name or slogan – we will look at the protections for those aspects in another post.
  • Generally, copyright in an image is owned by the creator of that image.
  • If you create an image you can assign or licence {usually in return for some money!} all or part of the rights you have as a copyright owner. In addition, work done by employees {not freelancers} during the course of their employment is usually owned by the employer. As a freelancer you will own the copyright unless you have agreed to an alternate arrangement.
  • Copyright does not protect ideas or styles. If you see a photo on Instagram with a grey bed-head, pink light and black and white print {oh yes, I did just post a photo like that!} then, as a general rule, copyright laws will not stop you from finding your own grey bed-head, pink light and black and white print, taking a photo of it and posting it on your Instagram feed with no credit to me. Instagram, Pinterest and visual social media as a whole, are all about inspiring others and for the most part stylists, like me, love that we inspire people to recreate their living space or outfit choice.

WFH print - styling and photography by catherine and grace - copyright 2014What we don’t like is when people take an image that is not their own, post it on their Instagram feed, blog or website and neglect to credit the image maker or, worse still, claim the image as their own. When you create a piece of work that is protected under copyright law, as the creator of that work you have a number of rights, known as moral rights. You retain these moral rights even if you assign or licence some or all of your copyrights to someone else {in our creative world freelancers may sell or licence some of their copyrights to a client, magazine or other publication, regardless the creator retains the moral rights}

For today’s post I want to concentrate on just one of these moral rights – the right of attribution. This right is very simple – it is the right to be credited as the creator of your work. This means, that under Australian law, if you post someone else’s photo and do not credit the image creator you are actually breaching federal legislation. I honestly believe most people don’t know this. Most people don’t post other people’s images maliciously, they do so because they love the image and they are inspired. They may not know or have had the time to do the detective work to find out who created the image.  There is no readily available Instagram etiquette / rule book. By writing this post I am not aiming to shame or humiliate those who have posted images without due credit in the past. I don’t want them to feel guilty or bad about themselves. All I want is to educate, inform people of the legislative requirements and stress the importance of crediting in the future.

And yes, crediting may be required under law, but more importantly, it is the right thing to do. Creatives put so much time and effort and creativity into their work. We love to share it, we love to inspire and we love that it is universally available for everyone to enjoy. Most of us don’t want to be famous or have our faces plastered over the world’s media. We simply want credit where credit is due – an acknowledgment that we have created the image and it is our work that inspired.New Year new desk featured imageIt is not always possible, or feasible, to dig through the whole of Instagram and find the original creator, I understand that. However the more people who credit images correctly, the easier it will become and the more it will become second nature. So, a few practical tips…

  • If you love a shot, check to see whether the person who has posted it has credited someone else as the creator. If so, on Instagram tag that creator or provide a link to the creator’s website on your blog.
  • Perhaps an Instagram account you follow has simply stated “re-gram” from X. If so, go back to X’s profile, find the photo and see if they have also re-gramed or credited the creator. Keep following the trail until you find the original image. Yes, it takes a little time, but it is likely to be less time than putting together the photograph in the first place so you are still winning the time race compared the image creator – create or credit!
  • If you have done a reasonable amount of research and still have had no luck finding the owner, make this clear, ask your followers to tag the image creator if they know who it is and if you subsequently find out, let that content creator know how much you appreciate their image.
  • On Instagram, always, always tag the image creator in the caption, not in a later comment. Once a number of comments are made, earlier comments become invisible in the feed.
  • Pinterest is a difficult beast – it is really a platform made for sharing images that inspire. There is no easy fix for Pinterest, and I imagine it will take time before full credit to image makers is given correctly on this platform. In the meantime, do what you can – go back to the original webpage source of the photo and pin directly from there so the website is accessible to future pinners. Alternatively, add your own caption to the pin mentioning the image creator and a link to their social media or website.

A change requires everyone to get behind what is right and do their best. Sometimes we will forget and post without credit. It is not ideal, however it is not a hanging offence either. Just try to credit the next time. Thank those that do credit, ask image creators if you can repost photos if in doubt, respect those profiles that specifically ask you not to repost their photos and do your best to find the image creator.

As for me, I am always happy for you to repost my Instagram images, but please, please tag my Instagram account {@catherinegrace_ _} in your caption. I’d love to hear your thoughts, both those in agreement and those who disagree. Please leave a comment or feel free to get in touch directly on catherineandgrace[at}gmail[dot]com.

xx Catherine JPEG

 

 

 

 

These posts do not, and should not, take the place of appropriate and individual financial, legal or other advice that directly takes into account your particular circumstances. To provide financial advice in Australia, and most other countries, you need a financial services licence. I do not have that licence and I am not a registered financial advisor. These posts are designed to highlight issues that may affect you and encourage you to delve deeper and seek out the correct advice in relation to the issues that will affect your life or business.

 

44 Comments on “#createorcredit {Part 1}: moral rights of the creative

  1. Hi Catherine, I’ll keep a bookmark to this article in case I need it at some time in the future. As a blogger AND photographer it’s really helpful to know what the guidelines are and when * sharing * oversteps the line. I’ve had a few regrams on instagram { and particularly appreciate when people ask first! } and I’m happy so far knowing when I’m tagged – aside from the ones that I’m not tagged in and therefore not seeing! Agh! Tricky waters.

    Amber at Adventures of a Rainbow Mama x

    • Thank you for your kind comments Amber. I hope you find the further posts on similar topics useful. It is a tricky area… especially as there is no way of knowing when we are not tagged! xxC

  2. Thank you so much Catherine for this fabulous insight into this important issue of #createorcredit. I think that your sharing of this will make for a much friendlier and more inspiring community, one which further values the work of creatives. I can’t believe how time has passed since our class with Robyn… I think a reunion at some point is in order. x

  3. Thank you. So very kind of you to share. A huge topic made clear

  4. Hi Catherine, as a newcomer to Pinterest and Instagram (yes, I’m a bit of a slow starter!) I’ve been looking for information about how to properly credit images and your post has really helped clarify it for me. Thank you!

    • Thanks Vanessa for you kind comment, I am so glad you found it helpful. Welcome to the wonderful world of Instagram and Pinterest – a visual feast and endless inspiration. My Instagram profile is @catherineandgracestylefile if you want to follow along xxC

  5. Perfect! Thank you for your help! It’s great to have that cleared up!

  6. Unfortunately I did what I thought was the right thing, putting a big text credit watermark on the actual photo, a credit in the caption and tagging the owner of the photo. Within an hour I was reported to instagram, called out publicly on twitter and publicly attacked by followers of the photographer. As soon as I saw the message about being reported (one hour after posting the image) I deleted it. I spoke to the photographer and apologised and everything was OK from their perspective after that, however the damage was already done. I’d be wary of using any images without express written permission, even with a blatant credit. It was blatantly obvious that I wasn’t trying to take credit for the photographer’s work, but even showing the image in the first place was a disaster.

    I’ve since asked for permission from other creators and generally don’t receive a response (I get it, they’re busy), so I just don’t feature other’s work anymore, unless it’s an explicit promotion for them and not being used in a general way. Even then….

    • Hi Dee thank you for your comment. It does sound like you did absolutely the right thing, and unfortunately for the photographer’s supporters have taken it upon themselves to complain, even though the photographer was perfectly happy with the way you had credited them. I’m sorry that happened to you and agree that the safest way is to ask or simply use your own content. A good warning for others out there. Thanks again for taking the time to comment and leave your story. xxC

      • I should be clear, the photographer DID mind me using the photo, but after speaking to me, they understood my point of view, said no hard feelings, and I removed it.

  7. thanks a lot for this. I do credit other people’s images whenever I use them. NOT LIKE SOME OTHER BLOGGERS. AND NO I DO NOT USE OTHER PEOPLE’S IMAGES ON FB. JUST OFFENSIVE

    • Thanks for your comment. It sounds like you are doing the right thing. It is always best to use your own content, however Instagram and Pinterest are sharing tools and sources of inspiration so generally crediting the original source is sufficient. Facebook is a slightly different beast. I try to stay off Facebook for my business and just use it as a personal connection tool, however I know how powerful it can be as a business tool so it is always in the back of my mind to start a business Facebook page. Thanks again for not only taking the time to read the post but for leaving your comments xxC

  8. i’ve been bitten by the copyright issue, both in real life [by people in the design industry who clearly knew better and where a legal document was issued] and on social media. your article is confirmation of the legalities and simply ‘the right thing to do’. i look forward to your next post! thank you very much catherine.

    • Thanks Mariana. It is so disheartening to see your work ripped off by others. As you say it needs to start with “the right thing to do” and we need to make it the norm to credit. Hopefully the young people will always credit and use other people’s creative products in the right way. Thanks for taking the time to read the post and leave your comment. xxC

  9. Thanks so much for posting this article 🙂 My sister is a lawyer and had told me about this, but so good to be able to bookmark it.

  10. Great article!!
    I have a quick question I’m hoping you can help me with! I recently had an incident whereby a client has credited some work that we created (custom sign/artwork), which was featured in a published magazine, but credited to her own company (a new company, which started after we did the signs). I’m assuming she has breached copyright laws by doing this? Is there any recourse for this or better to just let it go?
    (p.s. The magazine is now aware and spewing also, but it’s sort of too late now as it’s published and all over newsagencies..!)

    • Hi Melissa

      I am sorry this happened to you. From a legal perspective, there is likely to be some sort of recourse, however it will depend on the terms of the original contact put in place between you and the client when you first created the work. Ordinarily, claiming work as their own, when it was created by you, would be a breach of the copyright laws in Australia, however again it depends on the terms of the contract between you. While you can not assign your moral right to be attributed as the creator of the work to the client you can agree that the client does not have to credit you. This is common when graphic designs create new artistic elements of a logo for a company. Mostly there is an agreement that the company does not have to credit the graphic designer each and every time the artistic element of the logo is used as this would be impractical.

      The contract between you and the client may be a written document you entered into, or, if there was no such document the courts can imply a contract and imply certain terms of the contract between you and the client. In any event this is likely to be a costly exercise and, if you don’t have a clear written contract, may not go in your favour in any event.

      From a practical point of view the fact that the magazine knows it has happened means that the magazine probably won’t use your client’s new company again and this is probably a better outcome than both spending vast amounts of money on legal fees, which may still not give you a satisfactory result. While frustrating, depending on the monetary value of the work it may be better, from a practical point of view, to let this one slide, not work with that client again and perhaps {not viciously} inform others of the client’s actions and put in additional safeguards in the future such as clear agreements. To give you an idea of costings a simple letter of demand {i.e. please stop doing that} through lawyers can cost up to $3000 and then it just gets more and more expensive. I can recommend lawyers that deal with creatives if you would like to travel down that path – just shoot me an email {details on my contacts page}.

      The Federal Attorney General is currently looking at the issue of digital piracy with a view to making it easier for creative rights owners to take action without always using the expense of lawyers. I will keep you posted as this develops. I hope this has helped. It is probably not the answer you want, however I always believe it is not useful to build up false hope. xxC

  11. Great article, but I just wanted to seek your clarification on a point: just because you credit someone else’s work, that still doesn’t mean you can necessarily use it, right? Like, attribution is not actually defense if someone decides to sue you for breach of copyright, is it? I thought that permission was the most important thing from a legal perspective?

    • Hi Polly

      You are absolutely correct. Attribution is not a defence to copyright infringement. This article looks at a very small part of the Copyright Act, the section that talks about moral rights. Simply attributing the image to the correct owner does not give you the right to use the image. Use without permission can be a breach of other copyright laws in Australia. This article focuses on the use of other people’s images without credit, primarily on social media platforms, such as Instagram. It could be argued that by posting a image on Instagram you give other Instagram users an implied licence to “regram” that image {there are arguments against this view as well}, however regardless, you must always credit the image creator. I hope this helps. xxC

  12. Thanks so much for this info. When I first started my blog I was simply unaware. After being pulled up for it, I took down all my old blog posts and started again. Now I always credit and provide a link to the original creator. It’s a LOT more time consuming but it’s the morally correct thing to do. I wish I had been directed to a post like yours months ago!!!!!!

  13. Hi Catherine, I love this that you’ve spelled everything out so clearly. (I’ve bookmarked it too!) And I really love that you have addressed the ‘moral compass’ behind the law as well. A great read and unfortunately necessary in this day and age. I’ve had my photos ‘stolen’ and often and because I’ve been on that side of the fence, I’m very concious of how I use other people’s images even with permission. Thanks so much! Kelly

    • Thank you for your kind words kelly. I am so sorry you have had images stolen – it is unacceptable and such a horrible feeling when it happens. I am hoping that with greater education it will happen less and less. Very much appreciate you stopping by and for leaving such a lovely comment. xxC

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  15. Thanks for this interesting article Catherine! Am wondering if you have any thoughts in regards to crediting when a customer is advertising a product you’ve made using your image in print form, how a credit would be given in that regard?

  16. A fascinating discussion is definitely worth comment.

    I think that you ought to write more about this subject matter, it may not be a taboo matter
    but usually people don’t discuss such issues. To the next!
    Best wishes!!

  17. As a new blogger this is great information. I’ve also started using instagram more, so this is great. I see a lot of inspiration instagrammers not crediting and find this very annoying. If I am aware of users not crediting is there anything I can do? I think this issue needs more publicity. Thank you for sharing and helping to clarify.

    • Thank you so much. I usually try and tag the correct person in the image, which lets both the image creator and the wrongdoer know that the image is being used in the wrong way. It is difficult, however I think you are right – the more people who know about it, hopefully the more people will be able to do the right thing. xxC

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  20. Love the post Catherine. As someone who had her pictures posted without credit, its not a pleasant feeling. I guess you won’t know how it feels until you experience it. Someone going to the blog, making a collage of my pics and using it to sell lipsticks from their page..It actually boils my blood! And if you decide you track it down..you’ll be amazed at how long the picture has traveled..who copied from who!! I’m proud of myself to never post anything from stock or Google. If its not mine, I won’t post it! No matter how bad I need the image.

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