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13 Oct 2015 07:59
In South Africa, intellectual property theft of photographs, design and artwork is surprisingly common, generally
misunderstood and difficult to control. And it happened to me.
Although I’m not a full-time photographer –
I spend most of my days writing and editing – I specialised in photojournalism
at university and continue to enjoy the occasional photographic project.
Six years ago, I took a photo of an aloe [pictured below] with its roots exposed for a plant-loving friend.
The concept of showing the
whole plant is certainly not original.
At the time I shot my aloe, Clinton
Friedman’s range of classical botanical photos was very popular.
My friend sourced the perfect aloe and I
figured out the logistics of capturing the plant in mid-air. It took some
creative thinking to set up the shoot and required significant post-processing
work, but we were both very happy with the end result.
I uploaded the image to a photography
portfolio website and didn’t think much about it again.
Roughly a year later, in 2010, a close
childhood friend of mine, who is an artist, was searching for pictures of aloes
via Google Images as part of a printmaking project. By coincidence she stumbled
on my photo and – seeing that it was mine – asked if she could use it for a
monoprint. Of course I said yes and the resulting print was quite beautiful.
I’ve never – in earnest, at least – focused
on making money from print sales or licensing photographs. The work I do is mostly
for my own gratification. The aloe photo was an unanticipated hit among friends
and it is on display in a few of their homes. It’s a good feeling knowing they
like and enjoy my work.
When I look at the photo today, however, it
reminds me of months of stressful interactions.
Last year I was browsing for fabric for
cushions at one of Woodstock’s popular fabric stores and came across what
looked uncannily like my photo printed on a roll of fabric as part of an
At first I didn’t believe it. But a quick
comparison with the original photo on my phone showed, without a doubt, that it
was mine. Each root line was perfectly traceable.
I was stunned: how the hell did a photo I
took years ago end up on a premium fabric range?
I went to the storeowner and was told the
fabric was designed by interior design company T & Co, which is owned by well-known
South African designer Tanya Sturgeon.
The fabric, I found, formed part of the
company’s Pure Fabrication range. My photograph featured on three fabrics in
the range: the Cape Aloe Traditional, Cape Aloe Charcoal and Cape Aloe Duck
Egg. On T & Co’s website, the company had written that the range was
inspired by Sturgeon’s “trips
to Paris and various Parisian markets, but with a distinctly South African
interpretation, as seen in the quintessentially Aloe design”.
out the range was printed on quite a large scale by well-known fabric manufacturer
Hertex, between the years of 2011 to 2014. A quick Google search shows it on
cushion covers and vanity cases at a variety of online stores. It was clearly a
By the time
I found all of this out, I was less stunned than I was infuriated that my image
was being used so extensively – and without me even knowing.
to read up on intellectual property law, including the
Copyright Act of 1978. I discovered stories remarkably similar to mine.
In 2013, filmmaker Riordan Allen’s
Instagram photo appeared on a range of Markhams t-shirts. While the stock was
pulled from the stores, Allen was never financially compensated.
Why? According to Allen, the design company
was not South African and the legal fees for an international lawyer would have
been prohibitively expensive.
Similarly, in 2011, an image by
photographer Kelly Berold appeared on a range of Mr Price t-shirts without her
knowledge. When I phoned her to ask about it, Berold declined to comment on the
details of the incident. But she did say that the matter was resolved and assured
me that the company handled the situation earnestly and professionally.
Photographer Gregor Röhrig, who I studied
with at university, deals with the illegal use of images constantly. He told me
his photographs have been used without his permission in everything from concert
promotions and books to news websites.
But Röhrig said he’s never gone the legal
route because the cost and time involved just wouldn’t be worth it.
“That, however, is also the problem as not
enough legal precedents are set,” he said. “All in all, it is a super
frustrating issue, people often just don’t consider using photographs without
permission as copyright infringement because they ‘find’ them on the internet.
I have had to watermark a lot of my work that is online, and even then it has
Röhrig didn’t have to add the watermark –
even though many photographers do in a bid to fight off intellectual property
theft – because copyright in South Africa is automatic. But most people and
businesses are completely unaware of how copyright works.
It took me a couple of months to actually
do anything about my photograph after I first saw it in Woodstock. I wanted to try and sort it out
without making a fuss, especially after seeing the furore over the Woolworth’s
hummingbird incident. That was when Cape Town-based artist Euodia Roets claimed
that Woolworths had replicated her illustration on a line of cushions. In that
case, it turned out that Woolworths had signed off a hummingbird design months
before Roets met with Woolworths and that the illustration itself was based on
the work of photographer R.W Scott.
I wanted to
be very sure I was in the right. I didn’t vent my frustrations online as Roets
did – Roets’ blog post titled ‘How Woolworths really operates’ was shared,
liked and commented on more than 35000 times on Facebook – I went straight to T
& Co as soon as I decided to act.
I started off with an email. After
following up a number of times, about a month later I finally received a proper
The gist of it was this: a commissioned
designer did the research and pattern design, which ended up being very
successful, with an estimated six kilometres of the Cape Aloe fabric sold. This
designer found my image via Google Images and had used it, apparently unaware
that it was copyrighted.
In reply, I proposed a licensing fee based
on Getty Images’ suggested rates for similar photographic work, which came to $2 495 (about R30 000). I proposed a flat rate of R13 500 with a 25% penalty
for the years it was used without permission. T & Co rejected my fee.
“Michael Subotsky (sic) maybe gets that
kind of price for his images as investment art pieces,” Sturgeon wrote back.
“But I am not sure how you get to that price for part of a photographic image
in a design. How come that image was on the internet, and never had any
copyright stamp over it? And how can you control the use of an image once you
upload it onto the internet?”
I was pacing in fury. How could a design
company know so little about intellectual property online?
But what really frustrated me was that had I
been contacted way back in 2009, it’s possible that I may have quoted a far
lower price. Or perhaps I would have decided that I didn’t want my photo
featured on the fabric range at all. After all, it had a lot of personal value
to me and having it splayed on thousands of scatter cushions in lavish living
rooms across the country took that intimacy away. But I didn’t have that choice
to make. I wasn’t contacted at all.
Besides, I may not be a famous photographer
but that’s not really the point, is it?
I finally contacted Hertex, the fabric
manufacturer and explained the situation. They responded almost immediately.
As is legally required, they immediately
offered me the remaining stock (38 metres), removed the infringing images from
their website and assured me that Hertex wouldn’t sell the designs in future. They
told me they didn’t own the rights to the design, so any financial compensation
on that front would have to be negotiated with T & Co.
Days later I received an offer from T &
Co of R6 000. I decided that I needed some official legal advice and
cold-called intellectual property lawyer Janine Hollesen from Werksmans.
Possibly my biggest victory in all of this was Hollesen offering to help me for
Having worked in IP law for 16 years, the
type of fees such experience normally demands makes this amazingly generous of
her – and normally totally out of reach for someone like me.
So why did she agree to help?
“The theft of intellectual property should
not be viewed as being any different from the theft of a physical item,”
Hollesen said. “Artists spend time and effort in creating new works, which
should not simply be used by third parties without authorisation merely because
they appear on the internet. The apparent lack of concern regarding the use of
the image after acknowledging the use thereof was concerning.”
Business owners know that the average
independent photographer doesn’t have the resources to get even the most basic
legal advice. Intellectual property lawyers generally charge upwards of R2 000
an hour. And even having legal assistance and sending lawyer’s letters doesn’t
necessarily help bring things to a close any faster. My own case has been going
on since September 2014.
Through my interactions with Sturgeon, I
have gained some sympathetic insights into the businesses and individuals who unwittingly
commit copyright infringement. I also have a better understanding of how the
fabric industry works.
In this particular case, T & Co earned
commission on sales of the fabric. From what I learned, Sturgeon’s fee for use
of the photograph in the design isn’t completely unreasonable. After starting
up email correspondence again this year, I decided to accept a final offer of
R5 000 and the details and payment were finalised on March 10 2015. I am
relieved that we have managed to come to an agreement, as is Sturgeon.
“It really never was my intention to use an
image illegally,” Sturgeon told me recently. “It was also done six years ago,
and I don’t think there was the same awareness then about using other people’s
images off the internet that there possibly is now.
“Ironically the designs in that Pure
Fabrication collection have been fairly closely copied by other fabric
companies over the last few years. I am a big advocator of designers and people
in the creative business being compensated for their work, creative input and
time, and so often they are not, as I have also been in that situation.”
Every image that is used illegally without
licensing fees paid – no matter how small the amount – affects the real-life
income of the creator. It’s death by a thousand paper cuts for photographers
and artists trying to make a living from their craft.
Professional photographer Deryck van
Steenderen, author of Exposed: the
Business of Photography, wrote an entire book to help photographers deal
with the business side of professional photography.
Van Steenderen says that the lack of
education around copyright and general business savvy is a huge gap,
particularly in tertiary education. Photographers, designers and businesses,
are grossly unprepared for dealing with it.
Businesses need to realise that copyright
infringement is a criminal offence – if maximum penalties were pursued it could
result in jail time and considerable financial compensation.
In 2013 Getty Images had to award US$1.2-million to photojournalist Daniel Morel for copyright infringement. Photos that
Morel took after the Haitian earthquake in 2010 were shared on social media and
sold without Morel’s knowledge to publications across the globe. He pursued the
case for four years and when asked why Morel said, “because someone had to
fight for photographers”.
Money aside, using someone else’s creative
expression in a way that they did not choose or approve cheapens the artwork,
stripping it of its intrinsic value.
The internet has made stealing, repurposing
and copying images a simple click or two of the mouse and it’s practically
impossible to control.
As for myself, I’ve learned a lot through
this process and not just about copyright. I’ve had a small glimpse into how
challenging it is to stand up for your rights when those rights aren’t
respected. As a journalist, I also know that I have far more power than the
average South African in my ability to communicate and educate through media.
I also have 38 metres of fabric. Cushion
How Gallo protects its imagesGallo Images, the local arm of
international stock photography company Getty Images, deals with infringement
“Unfortunately it does happen on a regular
basis and we also have models and owners of property and artworks contacting us
in this regard,” says Leigh Benson, media sales manager at Gallo Images South
When contacting businesses or individuals
who’ve used images illegally, Gallo generally finds that it was done by
accident and as a result of misunderstanding or ignorance of copyright laws.
“Many people think that they will not get
caught and are prepared to take the risk. People tend to assume that if they
credit a picture they are exempt from legal action, but unfortunately credit
lines do not pay the bills for those who are producing the content be it
images, text or illustrations,” says Benson.
Gallo, being a stock photography company,
tries to protect the rights of the artists and photographers they represent.
They deal with illegal usage all the time and use PicScout software to find
images and inform businesses about the infringement.
PicScout trawls the internet and finds
images which are used without the correct licences. Gallo will then get in
touch with the individual or company, show them the proof from PicScout and
find out where the images were sourced.
Internationally, Getty is often called a
bully or copyright troll for its pursuit of illegal use of images. Many people
feel the company bullies people into paying for images with the threat of
lawsuits, which are unlikely to materialise due to the enormous cost involved.
Cases in copyright infringementArt
Rogers vs Jeff Koons
Artist Jeff Koons created a sculpture
closely based on a photograph by Art Rogers holding a row of puppies. The case
went to court in 1991 in the US. The court found the similarities too close and
Koons had to pay a monetary settlement.
Alexander and Die Antwoord
In 2012, Die Antwoord’s music video teaser
was pulled after it referenced artist Jane Alexander’s anti-apartheid
sculpture, the Butcher Boys, without permission.
Roets and Woolworths
In 2013 year, Euodia Roets accused
Woolworths of using her hummingbird design on a range of pillows. There was a
huge social media outcry around the issue, but Woolworths had a paper trail to
prove that it was not her design. This is unlike in 2012, when the Advertising
Standards Authority ordered Woolworths to withdraw soft drink packaging with
the words “good old fashioned” which was used by Frankies Olde Soft Drink
Fairey and Mannie Garcia
Street artist Shephard Fairey created a
poster based on freelance photographer Mannia Garcia’s image of US President
Obama. The poster became extremely popular and Associated Press, who
commissioned Garcia, demanded compensation. AP and the artist reached a private
settlement in 2011 including a profit share of the work.
Your rights as a photographerPhotographers (and artists) who create
their own images (unless commissioned) own the copyright to those images by
default. You’re entitled to sell the License for Use of your images for 50
In South Africa, there is one exception.
If a photographer is employed by a
newspaper/magazine or similar, the employer owns the copyright by default.
Likewise, if an image is commissioned, the commissioning agent owns the
copyright. However, a mutual agreement between employer and photographer can
legally override this.
As the owner of copyright you have the
exclusive right to reproduce the work in any manner or form – whether it’s on
fabric, wallpaper or billboards. This also covers adaptation of the work. This
“includes the transformation of the work in such a manner that the original or
substantial features thereof remain recognisable”. In the case of my aloe
photo, it was clear that the image on the fabric was my photograph, but it’s
not always that simple to prove.
to take if your work is used illegally
If someone continues to use
your work after they’ve been notified of the infringement, they will be guilty
of a criminal offence and could be fined or imprisoned.
to protect your work
While not legally required,
include a copyright notice on your work to warn third parties that copyright
Use online resources to track
the use of your images. These include Tin Eye and Google’s Reverse Image
should businesses know?
Google Images is not a free
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