Can someone take a picture of me, then claim copyright over the material?

Question

Possible Duplicate:
If someone makes a picture of me, who owns the right to it?

A lady took a photograph of me, then posted it in a smear campaign against me. I was the obvious subject of the photograph, both the primary subject in the picture and primary in the description.

Can someone copyright a photograph they took of me that I gave no permission for, and use it in a smear campaign -- and have me take down a picture of ME while "critiquing" it (fair use!).

Canada has "critique" which allows one to use copywritten materials in order to "critique" them, similar to "fair use"... and yet this lady has signed a DMCA filing!

Also, shouldn't I be entitled to a copy of such a filing?

These copyright laws are freaking confusing!!

Answer 1

Copyright in the image belongs to the creator of the image.† It is only when the image itself is of a copyrighted work that copyright law comes into place (since the photo is essentially a reproduction of a protected work). You can't copyright yourself, so you can't invoke copyright law here.

I should add that you can copyright a costume/character, and that you may have the right to control images of yourself in character under copyright law. That is not the same as you just being you—or you being an ass, either, for that matter, unless you are being a copyrightable ass (you know, of the Disney type).

However, there are privacy laws, libel law and personal image rights covered under existing tort law that you may be able to invoke. It's not simply a matter of issuing a take-down notice, though—you have to be able to show that either the photograph itself violated a reasonable expectation of privacy, or that it has caused actual damage (to your business or reputation).

By the way, copyright is a moral right that exists from the moment of creation, and filing/registering of copyright is unnecessary (though it does make ownership and violation more easily provable). Simply claiming copyright or adding a circle-c (or equivalent) is enough of a legal declaration of intent to reserve rights on publication.

As always in such matters, you really need to get legal advice, and I'm just a photographer, not a lawyer. But if you are a "sufficiently public" figure and the content is not actually libellous, there may be nothing you can do.

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^{† As I posted earlier today in an edit to an older Canadian copyright question, Bill C-11 had the effect of repealing section 13(2) of the Copyright Act, which only ever gave copyright to the subject of a picture if the subject had commissioned and paid for the picture.}

Answer 2

Can someone copyright a photograph they took of me that I gave no permission for

Yes. In fact, copyright is automatically awarded to the photographer. They don't have to claim or apply for it.

The reason this is the case is that copyright protects the artistic work, in this case a photograph. Copyright is not designed to protect a person's likeness (or that of anything you might photograph), though there are various other laws that may apply to those things.

... and use it in a smear campaign

The smear campaign may or may not be considered libel. But if so, it would be unrelated to copyright - the copyright belongs to the photographer and there is no question about that. If you wanted to take action against them for their smear campaign it'd have to be one related to libel, not copyright.

Note that for something to be libel, it needs to provably do more than just show you in a bad light or be a bad photo.

and have me take down a picture of ME while "critiquing" it (fair use!).

Knowing that the image copyright belongs to the photographer in this case should help you with your understanding here.

If you have copied the photo without permission from the photographer, then this is an infringing copy under copyright. You may indeed reasonably believe that your use of the photo is "fair use", and you may be correct. The only way that would be officially determined is if the photographer took legal action against you and it made it to court, then they would decide if it is fair use or not.

If the photographer has sent a DCMA takedown request to your ISP or similar party, then what this means is if they take it down now, they will be immune to certain further legal action (they may have been immune anyway, but complying with the takedown would guarantee this). It doesn't mean they are obliged to take it down, but unless they care a lot about you, and believe that the image is non-infringing because it's fair use, they probably should. It's up to the ISP.

If the photographer has sent you a DCMA takedown, then it's up to you to decide how to react and whether to react at all. You are not legally bound to comply. If you believe your usage is "fair use" then you may well choose not to. Either the photographer will give up and leave you alone, or will decide to take legal action. If you don't comply and, hypothetically, the photographer goes on to take legal action against you, that's the point at which you stop taking advice from people on the internet and get your advice from a proper lawyer, because at that point - if it does get to that point, and it rarely does - what you say to the photographer may influence whether you can win and how much damage it will do to your bank balance. If on the other hand you do comply, it will almost certainly be the end of the matter.