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Meet Venkat Balasubramani, a Seattle based lawyer who deals in social media, technology, photography and more. He was nice enough to let me ask him a few questions about copyright, licensing and all that stuff that leaves the rest of us with a big question mark floating above our heads. And he didn’t even bill me for his time. In fact, he was so generous, that the interview will be split into two parts. This is part 1, so let us start by letting the man introduce himself.

What is your background, your specialty and why is this such an important topic to you?

I’ve always been a voracious consumer of media in every form. I appreciate photographers, artists, and musicians, and see the value of creativity and intellectual property (both from a consumer and producer standpoint). As a lawyer I’ve been involved in a variety of copyright/content-related disputes and have advised many photographers and other clients on these types of issues, including the issues that arise in the on-line context or when different media are involved.

What are the most common misconceptions about the internet and copyright/fair use?

Probably the biggest misconception is that fair use is formulaic – I’ve often seen metrics thrown around, like you can use x% of an image without “getting into trouble.” This is just plain wrong, as illustrated by the recent dispute involving the AP/Fairey. Fair use is a very contextual determination, and if the stakes are high enough, will almost always result in litigation.

The second misconception is that if there’s no copyright notice then an image is fair game. An image that does not bear a copyright notice is not necessarily in the public domain, and people often incorrectly assume this is the case. While a notice may bear on the issue of whether infringement was willful, lack of a notice will not excuse unauthorized use.

Two other misconceptions are that attribution cures unauthorized use, and non-commercial use precludes a finding of infringement. Copyright infringement is – technically – any unauthorized exercise of any of the rights reserved to the copyright holder (display, reproduction, public performance, etc.).

What is the difference between owning the copyright and licensing the use of an image?

Licensing the use of an image is to grant someone permission to use it for a limited purpose. The licensor (the person who grants the license) has pretty much free rein to impose conditions on the scope of the license. Owning the image is the opposite of being a licensee, and allows you to freely use an image.

What should I do, if I discover someone using one of my photos without permission?

The biggest tool in the arsenal of the copyright owner is to register the copyright in the material. While copyright vests upon creation (without any additional acts) registration grants additional benefits such as statutory damages, and attorney’s fees. It is simple and inexpensive and if you have a registration your leverage increases dramatically. I have heard the term “poor man’s copyright” – like when someone mails themselves a copy of material which they’ve created. This is legally meaningless (for the most part). Spend the fees, which are minimal, and register. If you have a registration, the infringer will likely take down the image right away, and they would be foolish not to.

If you discover someone using your photos without permission the first thing is to gather details and preserve them. Get a screenshot, information regarding the website, and other details. The next step is probably to approach the infringer and depending on your motivations, request them to take down the image, and/or ask them to pay you a reasonable licensing fee. A letter on paper rather than an email would be better. This is the self-help route obviously. If you have a lawyer call him or her. Finally, most websites have DMCA notices which is a simple way to request a website to take down material it hosts. This is often a good route to take in order to get the material taken down right away.

Editors note: If you are tied to a microstock agency, you will want to check out their support, before taking any action yourself. They may be able to help you.

Should photographers provide usage licenses on client work?


A work for hire arrangement is where the client owns the photographs, and where possible, it makes sense to avoid this. When entering a work for hire agreement you are essentially signing your rights away in the photographs.

As far as how to go about licensing, this is a tougher question – and it depends on the goals of the photographer in question, and their stomach for dealing with the administrative hassles of licensing. Agencies provide a good platform, but submitting your photos to an agency often results in some loss of control. Microstock and direct to consumer agencies have emerged as an alternative.

What if a client paid to use an image for one thing, then later uses it outside the realm of the original agreement?

Use outside the scope of a license agreement is likely considered infringement and a breach of the license agreement. One point here is that it’s important to have the scope of the license spelled out clearly. Often the “license”, or arrangement, exists in the form of multiple emails or correspondence going back and forth and a court is left to unravel the precise scope of the understanding of the parties. Clarity is key and the scope of the license and any modifications to it should not be left to implication.

Venkat has been practicing law since 1997. He has his own firm which he started in 2006, and represents primarily internet, technology, and media companies. He also represents several photographers, including an art professor who was detained for taking photographs in the City of Snohomish. He blogs at spamnotes.com, where he writes about legal issues relating to spam, privacy, and online social networks. Like many others, he is probably addicted to Twitter.

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