By Faith Karimi | CNN
Imagine if a photo of you, without your knowledge or consent, started appearing in advertisements around the world?
It is what happened to actor BJ Novak, best known for his role in “The Office,” whose face was used to sell everything from face paint in Uruguay to Calvin Klein cologne in Sweden.
Novak said in an Instagram post he believes his unpaid role as an international pitchman began after his photo was mistakenly uploaded to a public domain website. He also said he was too amused to do anything about it.
But his example raises questions for the rest of us about copyright issues and the potential misuse of images in the age of social media, when personal photos can be reproduced and reused all over the internet.
To better understand this complex minefield, we asked two experts to explain.
What does public domain mean?
Public domain is an intellectual property term that refers to creative works – photos, films, music, etc.
In such cases, no permission is required to use the content.
It is not known how Novak’s photo entered the public domain. He provided few details and did not comment on its use.
Are social media platforms considered in the public domain?
No. Even on social media, the use of your photographs is limited by copyright law and the terms and conditions of the platform on which you post them.
“When you register on a social media platform, you accept the terms and conditions of that site … Advice and copyright expert for Public Knowledge, which promotes freedom of expression and an open internet.
“It’s an industry standard for part of this agreement to say, ‘whatever you download, you give us permission to show it to the world, as well as make incidental copies on our servers to allow things like retweeting / sharing / etc., ‘”she said.
This permission is called a license and varies across different platforms.
“But basically, as a user, you’ve given the site limited permission to display, transmit and reproduce the work you uploaded,” Rose said.
Do I own the copyright for the photos of myself?
You don’t, unless it’s selfies.
The photographer owns the copyright, Rose said. That is why Kendall Jenner has been chased by paparazzi for posting their photos of her on social media.
“The fact that a person is represented in a photograph does not give him any measure of ownership of the copyright in the photograph, nor any right to use the photograph,” said Jeffrey Sedlik, professor at the Art Center College of Design in California and expert in copyright.
In 24 states, the person in the photo can have a “right of publicity“- which prevents unauthorized commercial use of someone’s name or image,” Sedlik said.
This protects the person if their photo is used to appear as if they are approving of something.
A person may have the right in some states, under certain circumstances, to restrict a photographer’s ability to commercially exploit his image, Sedlik said. In some states, only celebrities have this right, he added.
But the right of publicity is not the same as the protection of copyright.
“Copyright is designed to make the artist press the shutter button, not the model in the photo itself,” Rose said. “The exception to this rule is the selfie, where the subject is also the photographer – and as the photographer, they own a copyright in that photo of themselves.”
Of course, copyright law or a platform’s terms and conditions cannot prevent someone from taking your photo and reposting it for their own purposes.
Could what happened to Novak happen to anyone?
“It’s definitely more likely for people who have modeled professionally, especially for archival photographs,” Rose said.
Stock photos are generic images authorized for use by individuals or organizations. For example, a news article about birth rates might use a photo of a newborn baby.
“But the practical constraints of what makes a photo good to use as a stock photo, or what qualities make it useful for designers to extract and put on labeling (color balance, composition, etc.), are enough. specific, ”Rose added.
“Because of that, I don’t think there’s a risk that, say, your former high school candidates are being used to sell electric razors. “
But could an image of me end up in the public domain?
Ultimately. But you might not be here to see it happen.
In the United States, images are protected by copyright for the life of the photographer and for 70 years after his death. After that, the photograph enters the public domain.
“For example, an unseen photograph created in the late 1800s by a photographer who died in 1952 could still be fully copyrighted in 2021, 69 years after the photographer’s death,” said Sedlik, who is also a photographer.
“A photograph only enters the public domain if the term of copyright expires. Some people suggest that a copyright owner can voluntarily inject a photograph into the public domain by signing a written statement. However, there is no provision in copyright law supporting this suggestion, and no provision under which a copyright owner can voluntarily relinquish copyright ownership.
The term copyright is different when a photograph is created by a company or an anonymous person.
Every year, Duke Law School publishes list of classic books freed from the constraints of copyright. This year’s list included F. Scott Fitzgerald’s novel “The Great Gatsby”, Buster Keaton’s silent films and the jazz standard “Sweet Georgia Brown”.
What happens after a copyright expires?
The work then enters the public domain, which essentially means that anyone can use it without the consent of the creator.
But this has not always been the case. Before the 1970s, copyright was not automatic. You had to register a work with the US Copyright Office for a shorter term and manually renew it after the term expired, Rose said.
As an example, she cited Jimmy Stewart’s 1946 film, “It’s a Wonderful Life. The studio forgot to renew its copyright and it fell into the public domain, where it has remained ever since.
This explains why the film airs on TV every Christmas, Rose said, because the TV channels don’t have to pay anyone to show it.
Have things changed with the digital world?
In the age of Instagram and Twitter, people are constantly reposting other people’s photos, editing images, and sharing memes. The law did not follow social norms regarding sharing, remixing and consuming content online.
“The fundamental structures of copyright law are based on basic assumptions about who creates the material, how they create it, how that material will be released to the world, who will consume it and under what conditions,” said Pink.
“Specifically, it was based on assumptions that you had a very linear path from the creation of a work, through the publication channels, then into the hands of consumers – and that in most cases, that is where the path stopped. It was a one-way arrow with a clear start and end point.
So technically people are constantly breaking copyright law without realizing it, Rose said.
“This is the social norm regarding the way we use the Internet today, and in the vast majority of cases these practices are considered harmless,” she said.
What can you do if your photo ends up in an advertisement without your consent?
Photographers can send a takedown notice under the Digital Millennium Copyright Act, a federal law that protects copyright owners from online theft.
“Take-down notices are very easy to send – probably too easy,” Rose said. “They have been widely abused to remove material for various non-copyright reasons.” Same repressive regimes have used them to censor activists.
In the case of Novak, it is not known who the photographer was and whether he sent a takedown notice.
Sedlik said the law on advertising law – which prevents unauthorized commercial use of someone’s image – varies by country, making cross-border enforcement complex and expensive.
To protect themselves, the subject of a professional photographer can maintain some control by negotiating this clause in their contract with the photographer, Rose said.
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