Copyright is a complicated thing. Members of the HEMA community participate in an activity that is inextricably linked with material that may well be copyrighted in some fashion, and therefore it is helpful to understand what copyright is and how it works, so that we can talk about it intelligently and avoid falling into any awkward legal situations.
Can a photographer take a photo of you?
Photography legislation is quite different in most countries. For this article, I will be focusing on UK law, because that is what I know best.
In the UK, a photographer can take photos of anyone, at any time or in any place, without needing permission. The only exceptions are when the photographer is on private property and the owner has rules about photography, when the photographer is at a private event and the event has rules about photography, or when the activity of taking photos goes too far and becomes harassment.
This means that at UK HEMA events, anyone with a camera can (legally speaking) take a photo of any of the participants, unless there is a rule to say that they cannot.
Who owns the copyright to a photo?
The photographer owns all the copyright for a photograph. The subject of the image does not have any copyright over the photo. This means that the photographer can use the image for any of their own purposes, while the subject does not necessarily have the same rights, and must ask the photographer for permission.
The exception would be if the photographer was employed to create the photograph and it was part of their contract that the copyright for works created during the course of employment would be owned by the employer. If you hire a photographer for a single shoot, the contract for the engagement should specify who will own the copyright for the images, and who has what rights and licences for use of the images. A good rule of thumb is always to read the contract thoroughly!
Can you use a HEMA photo for your own purposes?
You need to ask the photographer first. Because they created the work, they own the copyright. You cannot just download a photo in which you feature and then use it for your own purposes. Often, HEMA photographers are quite happy to let people use their photos, as long as they are credited properly – you just need to ask politely.
What if the photo was posted to social media?
Even when uploaded to social media, the copyright for a photo still usually belongs to the photographer. If you take a photo, then the copyright belongs to you. If you then upload the image to a social media service such as Facebook, then you should take care to read the terms and conditions of use – these will usually say that you still retain the copyright, but there may be additional paragraphs about giving rights and licences to use, store, and share the image.
In short, if you see a photo on Facebook, and you happen to be in that photo, the copyright may still be owned by the photographer and you cannot just download the photo and use it for your own purposes. You still need to ask for permission to copy it for your own purposes.
This can sometimes be quite a dividing issue, and street photography is known for potentially being problematic, because the people taking the photos have the law on their side, but the subjects of the photo may object to their photo being taken. Although fencers at events don’t always object to having their photo taken, there might be the expectation that if you allow someone to take your photo, they will allow you to use that photo of yourself – but this isn’t quite how the law works.
Matters are also made more complicated where under-18s feature in a photograph, due to child protection legislation, or when you consider the GDPR for protecting personal data (images can count as personal data when they allow a person to be identified easily). However, these matters are beyond the scope of this particular article!
As usual, the issue boils down to understanding who created the work and therefore who owns the copyright, and then recognising that you need to ask for permission to use someone’s work for your own purposes.
Thanks and disclaimer
I would like to thank Brian Puckett for his input on this from the United States perspective, and for general proofreading and suggested edits. The article is much stronger for his input!
I am not a lawyer specialising in copyright legislation (and neither is Brian), and this article should not be considered formal legal advice. Instead, this article covers certain general legal information that is not necessarily applicable to any specific legal matter. It is intended to be an introduction to the ideas of copyright and how they may apply to the community – no more than that.
If you would like to support my writing efforts, please consider donating a little something towards my coffee fund!
Keith Farrell teaches HEMA professionally, often at international events (why not hire me to teach at your event?), and has an interest in coaching instructors to become better teachers. I teach regularly at Liverpool HEMA, and help behind the scenes with running HEMA in Glasgow at the Vanguard Centre.