May my photos be used?

2015-06-17 06:00
Nongcali Zibi

Nongcali Zibi

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HOW does it work with copyright and the internet these days? I placed a photograph I took on Facebook. But now I see that it has been published in a book. Can someone simply use something taken from the internet without asking for permission or paying anything?

WE live in a digital age where Instagram, “selfies” and posting our pictures on social websites and platforms are an everyday occurrence in our ritual of sharing experiences and interests with others. But does sharing mean giving away? Are the photos we post on platforms such as Facebook protected and what are our rights in this regard?

The ownership right which relates to photographs is called copyright and entitles you to the protection of your photographs from unauthorised use.

The question, however, is whether you relinquish this right when you post your photos on, for example, a site like Facebook?

Copyright in a photograph is the exclusive right of the creator of the photo to use the photo for personal benefit or profit, including the right to publish it, reproduce it or authorise another person via a copyright licence to do so. Unlike other intellectual property rights, there is no system whereby copyright can be registered in South Africa, except for copyright in respect of movies. In South Africa you can, however, enjoy automatic copyright protection where the following requirements are met: S The work must be original.S The work must be reduced to a material form.S The author must be a qualified person, meaning a person who is a citizen of or domiciled in South Africa.S The work must have been first published in South Africa.

Our Copyright Act does provide for exemptions to your copyright, for example that the item can be used for research, private study and reporting of current events, provided that the source of the work is mentioned and that a substantial part of the work is not copied (e.g. with literary works).

Accordingly, even if the use of a photograph is allowed, recognition must still be given to the creator thereof. Where somebody uses a photo without permission in a way that only the creator thereof is allowed to do, the Copyright Act establishes that such use is an infringement of copyright and any person who (at a time when copyright subsists in the work) knowingly deals with infringing copies of your work without your consent, shall be guilty of an offence.

Where in an action for infringement of copyright it is proved that an infringement was committed, but that at the time of the infringement the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in your work, you will not be entitled to any damages against the defendant in respect of the infringement.

In your situation, the use of your photograph without your consent or acknowledgement for financial benefit – the publication of a book – constitutes infringement of your copyright in the photograph (assuming your photo meets the requirements for automatic copyright protection).

Potential remedies available to you can include an interdict stopping further use of the photograph, the return of all infringing copies and possibly also damages.

Copyright enforcement can, however, be quite complex and expensive and it is advisable that you consult with an attorney that specialises in intellectual property law regarding the appropriate remedies available to you.

In general, it should also be noted that one should read the terms and conditions of the various sites and platforms you use to post your photographs on. These terms and conditions may, through posting on such sites, restrict or limit your copyright in photos posted.

If you are concerned about the unauthorised use of your photos, take care of what you post, where you post, who can see them, where the photos are hosted, and if you want to be extra careful, use low- quality images and add a watermark indicating your copyright in the photos.

Such caution can help limit your potential exposure to copyright infringement.S Nongcali Zibi, associate, Phatshoane Henney Attorneys

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