Many professionals, like freelance photographers, benefit significantly from the use of the Internet to display their portfolios and advertise their business. For travel writers and bloggers like myself, this is the place to share knowledge and experiences with the rest of the world, and what better way than through photos. With so many people using images and material without authorization, the enforcement of copyright laws is a hot topic right now. However, while you are chasing the person who stole your image online, be wary that you might get an unexpected copyright violation letter of your own! Thanks to some interesting claims, some photographers are now having to question whether they truly own the copyrights to their own photographs. Surprisingly, under certain circumstances, the answer may be no.
Taking photographs of a copyrighted subject is a matter for debate. Does the photographer own the rights to his or her own photo, or can you copyright a photo of a subject that is already copyrighted or trademarked? Sound a bit confusing? It certainly can be when international organizations and laws are involved.
Several examples come to mind where the copyright owners may go after anyone who publishes a photo of their subject matter, even some non-professionals who are just sharing their travel photos online. It all depends on the image, the intended use, and where the image is displayed. Some photos are allowed if they fall under "fair use", but typically only non-profit and educational resources apply here. It pays to do some research on what you can and cannot photograph while traveling so you do not find yourself the recipient of a "nasty gram".
The most notorious example in this case is any photo taken of the Atomium located in Brussels, Belgium. Any images of the Atomium belong to SABAM, because they claim the image of the Atomium itself is copyrighted. Per the Atomium’s website,
The image of the Atomium is protected since its construction. It’s mandatory to gain approval from the SABAM (julie.sevrin@sabam.be) before copying or broadcasting the image (picture, drawing,…) of the Atomium. It is also necessary to mention the copyright: © www.atomium.be - Sabam 2009 - the name of the photographer.
Even though US copyright laws exist regarding rights to take photographs in public places, of public property, the Atomium is in Belgium, and don’t think they won’t fight you just because you might live in the US. In 2003, a US website was threatened, and rumored to be sued, for placing several photographs on their website of the structure without permission. That incident sparked quite a debate over the years on the ability to use photographs of the Atomium.
Andre Waterkeyn was the builder of the Atomium and had copyrighted the structure for 70 years after his death. Since he died in 2005, the copyright will expire in 2075, long after many of us will! The SABAM, who enforces the copyright, will let you use small, low resolution photos on nonprofit sites only (maximum 600 pixels and no greater resolution than 72 dpi), but you must still link copyright to them, with the name of the photographer included. The question for travel writers/bloggers like myself - if I write an article or blog post about my experiences, and although I am encouraging people to visit the Atomium, am I going to be sued for copyright infringement because the blog may be monetized and certainly the site I wrote the article for has ads? The consensus seems to be yes, I might run the risk of being forced to remove those photos. The Atomium claims they are not the one who filed the suit against the US website, but SABAM, the agency that represents Weterkeyn’s family. Weterkeyn’s family receives royalties based on any usage of the image. To be safe, either do not use any images or make sure to request permission ahead of time.
Another example is the famous Lone Cypress tree at Pebble Beach on 17-Mile Drive, in California. That tree is the trademark of the Pebble Beach Corporation and they have instituted a ban on all commercial photography. You might wonder, wouldn’t US copyright laws come into play here? Nope. That tree is located on Pebble Beach Corporation’s private property, where you agree to certain conditions upon entry, thereby creating a contract. Pebble Beach therefore claims the basis for the trademark infringement from photography for commercial purposes is rooted (no pun intended) in contract law. A bit confusing isn’t it?
The Pebble Beach debate dates back to at least 1990, after an attorney for the corporation was quoted in an article in the Monterey Journal, stating Pebble Beach not only trademarked the logo, but the image of the tree itself. Furthermore, he warned that they would begin enforcing a ban on all existing photographs, and no longer allow future photographers access to photograph the tree. Journalists had field day after that article ran, really debating the merits of this far-fetched claim. A subsequent Los Angeles Times article quoted one of the photographers Pebble Beach had denied access to, "I’m sure Ansel Adams and Edward Weston didn’t have to get anything in writing," Ed Young said in a protest letter to the corporation.
The grey area comes when you try to define what commercial use is. I am not a great photographer who is artistically editing photos of these objects and selling them, although I wish I had that kind of talent. If I keep reading Jerry Walch’s factoids on photography, I just might though!
Seriously though, this means that although my measly blog gets a small number of hits and I am actually encouraging people to visit Pebble Beach and the Atomium, if I publish photos of the Lone Cypress or the Atomium without permission, I could potentially find myself facing a bit of legal trouble if deemed commercial use. And that being the case, you are not likely to find any photos of those elements on my blog and certainly not included as any part of an article I may publish. I do not have the legal means to try and fight large corporations like these just to prove their claims are unfounded, and would it really be worth it just to make a few cents or dollars on ad clicks?
The question I find myself asking though, who really loses out in the end? These claims will keep me from wanting to include subjects like these in articles about tourist attractions in Belgium or things to see along the California Coast, since I cannot illustrate the experience through my photos. But, what about the people I could have reached through those articles and photos? The corporations may have kept me from earning enough to eat off the dollar menu at a local fast food restaurant, but what about their potential losses in revenue had I been able to reach people who might not have visited these sights otherwise? While I doubt my voice is that powerful, the few dollars I might’ve earned on those articles add up, and that’s what helps me travel so I can photograph and write about beautiful places in the world everyone should visit.
In the end, just make sure you familiarize yourself with local laws and any rules governing the locations you are photographing. Some places have signage up that indicates you need to ask permission prior to taking photos for commercial purposes. If your intent is commercial use, just make sure you have written permission. It’s easier to ask for permission up front rather than risk a threatening letter, or the costly expense of defending a lawsuit that may or may not be a valid claim for copyright infringement in the end.
