In instances where my photographs have been infringed and a credit has not been given, I believe I may also be able to claim damages under section 78 but am confused as to what would be considered a valid assertion of my right in these instances.
All my images have my details included in the Metadata as follows
Creator: my name
Copyright Notice: © my name 2018 - All rights reserved
My web site has the following in footer.
© 2018 my name Photography
I realise that sometimes the metadata is stripped inadvertently after the images are out of my hands, but it is always my policy to supply them with the metadata copyright intact.
Could an infringer argue that there was no metadata in the image from where they sourced it?
Requirement that right be asserted Section 78
Re: Requirement that right be asserted Section 78
Hi James,
It is worth mentioning that copyright is an economic right, whereas the right to be credited is a moral right. In law they are different things. For instance if you assign the copyright in one of your images to another person, they may legitimately put their own copyright notice on it, but the moral right is not transferable and remains with you provided that you have asserted it at the appropriate time.
While the metadata on each image might be sufficient to amount to an assertion provided you can show that an alleged infringer would know how to access it, the statement on your website is probably not sufficient as it stands, because it is not closely linked to the individual images (see sections 78 and104(2) for more detail on why I think this is so). For example if someone used a deep link to one of the images on your site, that would bypass the copyright notice and a third person seeing the image as a result of the link would have no way of knowing about the copyright notice. And although it does not address that problem, it would be better to make a more positive assertion (such as "Joe Bloggs asserts his right to be credited as the author of all photographs on this website and reserves all rights in them") and something similar should appear on any licence, invoice or assignment which you issue.
We await a definitive case in the UK (or Europe) in which the deliberate stripping out of metadata is held to be an infringing act under section 296ZG of CDPA or Article 6 of the InfoSoc Directive. This would particularly benefit photographers in helping to protect their work.
It is worth mentioning that copyright is an economic right, whereas the right to be credited is a moral right. In law they are different things. For instance if you assign the copyright in one of your images to another person, they may legitimately put their own copyright notice on it, but the moral right is not transferable and remains with you provided that you have asserted it at the appropriate time.
While the metadata on each image might be sufficient to amount to an assertion provided you can show that an alleged infringer would know how to access it, the statement on your website is probably not sufficient as it stands, because it is not closely linked to the individual images (see sections 78 and104(2) for more detail on why I think this is so). For example if someone used a deep link to one of the images on your site, that would bypass the copyright notice and a third person seeing the image as a result of the link would have no way of knowing about the copyright notice. And although it does not address that problem, it would be better to make a more positive assertion (such as "Joe Bloggs asserts his right to be credited as the author of all photographs on this website and reserves all rights in them") and something similar should appear on any licence, invoice or assignment which you issue.
We await a definitive case in the UK (or Europe) in which the deliberate stripping out of metadata is held to be an infringing act under section 296ZG of CDPA or Article 6 of the InfoSoc Directive. This would particularly benefit photographers in helping to protect their work.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007