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Have you had an experience that someone using your photo without your consent? Using it on their own blog post or website for personal or commercial usage, and in the worst case, causing damage to your photography business. It happened to me before, and I would not want the same thing to fall on any one of you.
The purpose of this article is to share with you all what I learned from a recent Copy Right Law workshop that I attended. The workshop was conducted by a practising lawyer and also an enthusiastic photographer, which is an eye-opener session for me.
Without wasting any more time, let’s get into the topic!
What’s Copyright law?
Copyright law is referring to Copyright Act 1987 under Intellectual Property Protection and is to protect any copyrightable works. (Under this act, an idea cannot be copyright, unless it is written down or recorded down.)
Included Copyright, Intellectual Property Protection also covers:
Patent
Trademark
Industrial Design
Copyright
Layout Design
Geographical Indication
Confidential Information
For your info, you can also purchase the Copyright Act book from a book store. (Below is the reference photo of the book)
Qualification
Before we dive into more detail about the Copyright Act 1987, the first thing is to know that whether are you qualified for receiving the protection under the Copyright Act 1987. Your works will be protected, as long as you, which is the author fulfil either one of the following requirements:
Being a citizen or PR of Malaysia.
The work is first published in Malaysia.
The work is created in Malaysia.
Authorship
Next, I will talk about Authorship, and this can be very interesting. Depending on different countries, whether a person owns the authorship of a photo can be very dependable.
Remember the famous “Monkey Selfie Copyright Dispute”? A monkey picked up a photographer’s camera and accidentally pressed the shutter button, which captured a selfie photo of the monkey. Because the photo was taken by the monkey but not the photographer himself, the photographer suffered financial loss due to Wikimedia Foundation refuses to remove the picture from its Wikimedia Commons image library. On top of that, the photographer was also sued by People for the Ethical Treatment of Animals (PETA), claiming the copyright should be assigned to the monkey. (For detail info about the case, you can check out HERE)
Above is the controversial Monkey Selfie Photo. Source: Google
So, who owns the Copyright of a photo here in Malaysia? Refer to Copyright Act 1987, page 11, under Author section.
“In relation to photographs, means the person by whom the arrangements for the taking of the photograph were undertaken”
In other words, if you only press the shutter button during the whole shooting process, you don’t have the authorship of those taken photo. If you wish to own the authorship of the photo, make sure that you involve in the setup/arrangement too.
However, if you are taking photos for a client or a company, they will be the one that owns the authorship, instead of you, unless there’s a written contract that stated the other way around.
Infringement of Copyright
Here’s the screenshot of one of the website that stole my photo to promote their Mount Kinabalu Tour Package.
If anyone performs any one of the following actions without your consent, it will constitute an infringement under Copyright Act 1987:
Reproduces in any material form, performs, shows or plays or distributes to the public,
Imports any article into Malaysia for the purpose of trade or financial gains;
Makes for sale or rent any infringing copy;
Sells, rent or by way of trade, exposes or offers for sale or rent any infringing copy;
Distributes infringing copies;
Possesses, otherwise than for his private and domestic use, any infringing copy;
Exhibits in public any infringing copy by way of trade;
Makes or has in his possession any contrivance used or intended to be used for the purpose of making infringing copies
Remedies for infringement of Copyright
So, what will happen if a person infringes your Copyright? The person can be fined or jailed, or the person will pay you an amount of money as compensation for any damage that may be done, the later remedy would be a much desirable option. That’s definitely the main reason if you file a lawsuit against someone that stole your photo, don’t you think so?
However, the average amount of compensation that you can get is at around RM 7,000~8,000. Based on the instructor that shared with us, the highest amount is at around RM18k. It is not that much, and the objective of this compensation is to recover whatever damages on you, not for you to making a large amount of profit unless your photo worth more than that.
Which is why, it is crucial to justify how much compensation should you request, based on:
The fee and royalties that you would have obtained from the defendant (the person that stole your photo) by selling the photo to him.
A loss in sales or profit resulting from the infringing act.
The expense and time that you have spent to capture the photo.
Do not base on a single shutter button pressed or a price of a roll of film, which is very unjustified, lol
Filing a lawsuit
To file a lawsuit against someone that stole your photo, you can hire a lawyer to help you in fighting the case, but then it is not going to be a practical way. Based on the market rate, the lawyer’s fee can go up to around RM10,000 or more. As mentioned, average compensation in winning a case is at around RM 7,000~8,000, which is most likely not enough to cover your lawyer’s fee. The best solution is to file the lawsuit by yourself without involving a lawyer, you can do that by filling up a form that gets from a court. As long as you are well prepared with all the supporting evidence, the chance of winning the case would be high.
What will happen if I file a lawsuit and lose the case?
If you win the case, the defendant will have to pay the compensation to you and the court fee; if you lose it, you only need to pay the court fee. Depend on the judge and how you negotiate, the court fee can be somewhere between RM2,000 to RM10,000.
Register your works for copyright
To ease the process of winning a court case, you can register your works for copyright. Even though your photos will still be automatically copyrighted at the moment you publish it, if you register them, the qualification of your work and also your authorship will be proven. Giving you a better head start when filing a lawsuit.
Can you photograph people in a public area?
For street photography wise, it is legit to photograph any people in a public area. However, try not to abuse it. You can don’t mean that you won’t get into trouble, some people can be very offended about it. So it is always the best to be discreet, or you just approach them to ask for permission, to be more respectful.
That’s all for this article, you should have a better understanding now about the Copy Right law in Malaysia. If you also familiar with the law and would like to share it out with everyone here regarding anything that’s not stated here, feel free to leave a comment here.
Happy shooting!
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