Help I’ve been robbed
I’ve decided to tell you my story in the hope that promoting the fair use of creative work, protecting intellectual property, and raising awareness in the creative community, will positively reflect on the quality of work produced in the UAE and in the region and reflect on higher-quality work produced for public and commercial clients.
What many people tend to forget is that the creative community also has living expenses and costs associated with producing the work everyone so enjoys, and by exposing our work in the public domain we are not making it free for all to use and take advantage of. If we do not get compensated fairly for the work we produce we will eventually not be able to sustain producing this work or will not be able to survive doing what we love and giving you what you enjoy.
So you wake up one fine morning, you open your browser, newspaper or favourite magazine, and you see a photograph. For a moment you squint in disbelief as you realise that the work that you are looking at is actually yours! A piece you worked hard to produce and invested countless hours of learning, experimenting and contemplating to produce. Not to mention the investment in gear and equipment, maybe even a trip to a far-off place to actually take the photo. Yet someone somewhere (in my case a global brand) thought that they could take this work and use it to promote their business (advertisement campaign) and make money out of this promotional activity, without compensating you for your work.
This happened to me in Dubai last year.
Today, after almost one year of legally claiming my Intellectual Property rights from the people who used my work without permission, I have finally been compensated for the use of my works
Know the Law
Understanding copyright laws and the protection they extend to the work of photographers and content creators in the region generally, and in the UAE specifically, was one of the first things I spent time on when I decided to take up photography as a profession.
I hope that sharing the details of my experience will help you stand up for your rights and protect your intellectual property as stipulated by the local copyright laws.
First of all; familiarise yourself with the local copyright laws. You can find multiple free documents from local law firms online.
Here is one clause – out of many – from UAE local laws that deals with the topic of intellectual property:
UAE FEDERAL LAW NO. (40) FOR THE YEAR 1992 FOR THE PROTECTION OF INTELLECTUAL WORKS AND COPYRIGHT
ARTICLE (2) The authors of the innovative intellectual works in literature, art and science, whatever the value of such works, their type, the purpose of their composition or the method of expressing thereof, enjoy the protection prescribed in this law. Protection includes the following intellectual works: Books, booklets and other written matters. Works given verbally as lectures, speeches and sermons. Dramatic plays and musical plays. Musical works whether accompanied by words or not. The works of designing eurhythmics and pantomime. Photography works. Cinema, television and broadcasting work, and creative audio visual works, and computer programmes. Works of applied arts whether handicraft or industrial. Works of drawing and painting with lines or colours, architecture, sculpture, decorative arts, engraving, designs, geographical plans designs, and relief maps. Encyclopedias, sundries and selections which form, in respect of selecting, arranging and editing their material, intellectual creative works, Protection also includes the works for which the aspect of expressing in writing, sound, drawing, photography or motion.
Second; make sure you are the only person with access to the image RAW files, and that you have your image metadata in order with fields of “Copyright” and “Creator” completed. This is something you should be able to program on your camera. This way all your photos come out of the camera with this information already embedded.
Third; make sure your signed agreements are properly written in such a way that clearly defines the scope of work, the duration of the license and the exact usage of your work that the license permits. For example, specify in the contract whether your images can be redistributed or republished by the magazine in a future article, other than the one you have authorised them to use your photographs in.
Fourth; when any of your agreements is breached do consult a qualified lawyer who can advise you based on the specifics of your claim.
In my case, a friend referred me to Mahmood Hussain Advocates & Legal Consultancy. Mr. Mahmood and his team had in-depth knowledge of the local IP laws in addition they can think out of the box. Their strategic approach to the claim eventually lead to a substantial out-of-court settlement.
Have a Strategy
I will walk you through the procedure in the UAE. It might differ in your country.
- Keep in mind that the UAE laws including the IP law may, depending on the case scenario, protect you at the Civil and Criminal levels. Plan your strategy using the most suitable legal path to get compensated for your work.
- Sometimes the infringement is outright theft when an image is copied, for example, from your website and used without any license whatsoever. However, other infringements may be less straightforward when, for example, images have been paid for but are used outside the agreed scope. Say the images have been acquired for internal use but ended up being used for an advertising campaign, or used outside of the agreed license time frame. These points bring to light the importance of clearly having a contract that defines and limits the usage of your work based on the price paid.
Screen shots, photographs, copies of material where your image or images have been used.
Screen shots showing metadata of the original files, negatives if these images have been shot on film.
If the images have been used outside of an agreed license, make sure you have copies of the license and any supporting contracts and documents.
Consult a legal adviser
(whenever possible) before adopting any future steps.
Send out an invoice
If confirmed by your legal advisor also, draw up an invoice for the usage of the works. In most cases an invoice coupled with a polite note is likely to resolve the issue. If this happens everyone walks away happy and you get back to creating more attractive work.
If your invoice is ignored or challenged then unfortunately you will need to resort to the legal system to secure your rights. Get in contact with a lawyer to help you with this.
This notice has to be registered in court and needs to be delivered through the court courier. Your notice has to outline your claim as well as the actions you expect to be undertaken to resolve this claim. It should clearly define the execution time line. The cost of sending the legal notice directly through the court – and not through a lawyer – is approximately AED 200. Naturally if you ask a lawyer to do this for you there will be additional costs.
File a criminal complaint
Infringing Intellectual property is a criminal offence in the UAE, this means if found guilty the offender could also face jail time in addition to substantial fines. If you have not been able to resolve the issue after all the above attempts then you have no choice but to file a complaint at your nearest police station. The police will review presented evidence and present the case to the public prosecutor who will in turn bring up the case in front of a judge.
FEDERAL LAW NO. (40) FOR THE YEAR 1992 FOR THE PROTECTION OF INTELLECTUAL WORKS AND COPYRIGHT
ARTICLE (38) The person who published a work not owned by him without getting a written permission from the work’s author or his heirs or his representative, will be punished with imprisonment and with a fine of not less that (50000) Fifty Thousand Dirhams, or with either both penalties. The person who claims, contrary to the truth, that he is the owner of a work, shall be punished with the same penalty.
Civil law suit
The outcome of the criminal case, if it is in your favour, will also support your claim if you further chose to do so with a civil lawsuit. Keep in mind this is the expensive part and you need to consult a lawyer before you move ahead with this. If you have all your evidence in place and the client wants to avoid criminal charges you may even be approached to reach a settlement. It is up to you then to agree on a settlement and drop all charges or let the legal system run its course.
I really hope no one has to go through this, though it is unfortunately part of the reality of the market place especially out of lack of awareness of the legal rights extended to the artist.
Make sure you have your own contracts in place and that you clearly agree with your clients when selling an image or producing work for them. Do this by outlining usage limitations and also note that you have a legal right to credit for published editorial work being in print or digital even if it’s paid for.
FEDERAL LAW NO. (40) FOR THE YEAR 1992 FOR THE PROTECTION OF INTELLECTUAL WORKS AND COPYRIGHT
ARTICLE (9) The author alone shall be entitled to decide publishing his work or art, determining the method of publication, and exploiting his work in the way she determines for exploitation. No-one else shall be entitled to exercise this right without a notarised written authorisation from the author, whomever the author deputised to do so, or his successors after his death..
ARTICLE (8) It is not permitted to publish, represent or circulate any work whatever its kind is, without fulfilling the following conditions: To attach with the work a certificate of origin showing the name of the author or the person to whom the right of exploitation has been assigned. To attach with the work a permission from the supplier or the owner for presentation or circulation showing the geographical area and place, wherein the presentation and circulation has been permitted. To attach with the work a certificate from the supplier showing the payment for the copyright whether by public performance, making models of the work, or copying it for distribution.
There are many other avenues where you as photographer can sell your work and still be protected, by not dealing directly with the clients for example. In the UAE consider associating with a reputable stock agency offering you a platform to reach wider market while protecting your work.
Dubai June 2015
Special thanks to my family, very close friends and the team at Mahmood Hussain Advocates & Legal Consultancy who supported me and believed in me throughout this experience
Thanks Dima Khatib for the review and edit.