can of worms: copyright infringement

Yes, we've been here before... but I've been burnt a few times. Friend and fellow photographer Tammy and I (and countless others) have experienced first-hand the frustration of having people use photographs for purposes other than what is clearly defined in the terms of their licenses. As yet, she has not had to entered a courtroom but I unfortunately have.

Laws are intended to protect people from any one of a number of things. Often, it is civil and not criminal cases that result in laws being revamped to close loopholes. I seriously thought that the most ridiculous thing I've ever read for a product warning was, "Do not iron garments while wearing," until Jamaica. (Sorry, M - I had to lol) But then again, who would ever have thought that people serving coffee would put a warning on cups about coffee being hot?

Backtrack a bit. I met a couple of forensic photographers at a PPOC event a couple of years ago. Their job was to take professional pictures specifically for the purpose of private individuals and corporations in support of various types of litigation. Though they specialized in insurance claims, they had also been contacted by police units, private investigators, lawyers, and other (presumably) legitimate folks in the legal field to provide photographic evidence for the purpose of being used in court. They had some pretty wild stories to share - husbands v. wives, insurance fraud, you name it. Their job was to go and take pictures to be used in a courtroom when the a) the police had not taken photographs or b) there was no criminal activity requiring police involvement.

Canadian copyright laws are pretty extensive, but to sum up, a photographer has moral copyright for all eternity, but the client who pays for photos owns copyright unless otherwise stated by the photographer. Hence, the reason most photogs I know clearly state they retain all copyright and prohibit use of their photos for anything but personal use. This usually is supposed to be interpreted as making prints for hanging on walls but unfortunately, there are those who interpret 'personal use' to include making tacky photo gifts and re-editing, and recently I came across an incident where a photographer's image had been used in court proceedings as evidence in a civil suit.

This is an interesting situation. Obviously, using your professional photographs for a court hearing would fall safely under the umbrella of 'personal use' and technically, one would have to assume that the photo was a paper print, but obviously it wouldn't be hung on a wall. But what if the photo was being misrepresented? For example, I take baby pictures when babies are crying. I also take pictures of kids when they aren't totally dressed. I also remove bruises and scratches. In certain circumstances I've even removed objects or people from pictures for aesthetic purposes.

In all these instances, the photos could be used out of context and therefore, I am personally not comfortable with my images being used as evidence without some sort of certification on my part that the photograph is being used in proper context, especially in family court where sadly husbands and wives will stoop to incredible depths trying to get the upper hand in custody cases. A picture is supposedly worth 1000 words, but what if false allegations are being supported with photographs that I took? Is the crying baby neglected? Are the naked kid pictures pornographic? Were the bruises taken out of the picture covering evidence of domestic violence? What if a person or object I removed was a critical piece of evidence?

One person suggested that if there was any question as to the validity of the images, the photographer could be subpoenaed. Yes, of course they could, but how often does Average Joe get that kind of latitude from the legal system? North Americans have been watching Law & Order and celebrity cases for so many years that we seem to think no stone will be left unturned, but in reality few parents have the clout or the financial backing for such an extensive investigation and would likely face a judge accusing them of wasting the court's time before being allowed to subpoena the photographer.

The bottom line for me is, I personally would not want an image that I had taken being used in court without me knowing for what so that I could certify (or clarify) the nature and context of the photograph. I would personally prefer that the person wishing to use the photograph ask for permission. This would not be something I would charge for, but certainly, I think it's within my rights as the owner of copyright to control how and when and why my work is used. Of course, at this point in time, it's not clearly defined in my copyright notice or terms of licensing. Perhaps it's time to get coffee-cup savvy about the issue.

Thoughts?