Copyright infringement? Youbetcha. | Image Credit: Jackie Weisberg
If there is a single question most often on the minds of photographers, it is probably a legal question about selling or licensing photographs. This isn’t surprising because the issues are complex and there are several different laws that apply to the sale of photographs for commercial purposes. Each post in this three-part series will address one of the main laws that covers commercial photo rights: 1) copyright, 2) trademark, and 3) the right to publicity or privacy.
Our goal is to provide you with a clear understanding of the different laws so you can make educated decisions and keep yourself out of legal hot water! Everything you read here is based on US law, which is a good benchmark to use because the US is one of the more litigious countries in the world. Even if you don’t operate in the US, this information should be useful as a guide.
What Is Copyright?
Anything that is designed is automatically protected by copyright law, including drawings, designs, photos, artwork, architecture, tattoos and street art. First of all, you need to wrap your head around the fact that copyright is absolute. In this way it differs from the laws of trademark and right to publicity, which are often enforced based on how the image is used. Whereas for copyright, any infringement, even using a small portion of someone else’s work or simply capturing it within your own photograph, can be against the law.
So copyright is all about ownership. Generally, the owner of a photo (aka the holder of the copyright) is the photographer, but as you’ll remember from grade school grammar class, there is always an exception to every rule. In this case, the exception is when the photographer has sold the ownership rights to another person or an organization. If you shoot under “work-for-hire,” for instance (common when contracting for advertising agencies), then the business that hired you will own the copyright, even though you took the picture. Make sure you check this carefully before undertaking an assignment and negotiate hard to retain your copyright!
The copyright law applies to anything made after 1923. This means that older creative works, such as the Mona Lisa or a photograph of Mark Twain, are considered public domain and thus do not constitute a copyright infringement.
Types of Copyright Infringement
Copying, selling or using an image that is owned by someone else without permission for commercial use (advertising), even if it’s for a good cause, like for a charity calendar sale, is copyright infringement. The most blatant form is knowingly selling someone’s image that is not yours, however copyright infringement can be unintentional. Say, for instance, you shoot a photo in front of a famous building. Believe it or not, that might constitute copyright infringement if the building has distinct design elements. The same goes for pieces of art that appear in the background of a photograph or even of a tattoo that is on your subject’s arm!
Buildings and architecture are copyrightable if they have significant design features. The rule in the US is that you can sell an image commercially featuring copyrighted architecture only if the image was shot from public land. Shooting copyrighted architecture on private land or inside a building/museum will breach the law. Be careful here, because even if you avoid copyright infringement from shooting from public space, many buildings may also be protected by trademark.
From the examples above, it’s pretty obvious that understanding the dos and don’ts of copyright law can be more than you bargained for. We hope this checklist will help you recognize what to avoid capturing in your images when on a shoot, if you plan on selling the images commercially:
❏ Artworks, either public or private, such as paintings in an office lobby, sculpture in a courtyard or as part of a building, a street mural or graffiti, or a drawing hanging on the wall of someone’s living room.
❏ Significant design features on buildings, such as a bridge or structure designed by a famous architect or a building such as the Guggenheim Museum in Bilbao, Spain, designed by Frank Gehry.
❏ Highly designed items such as clothing, furniture, specialized equipment, cars and toys, designer jewelry/accessories, cars, brand name appliances/equipment, mobile media devices and toys.
Even if protected items are not the main subject of your photo and appear only in the background, unauthorized use is still copyright infringement.
What if I’m not sure?
Consider covering tattoos, blurring artworks or cropping out offending sections if this doesn’t destroy the integrity of the image.
If only a very minimal, “non-creative” part of a work is used — a nondescript section of wall at the base of a building, for example, or a small, indistinct area of a street mural, there likely cannot be infringement of the copyright. It’s best, however, to err on the side of caution. Do you really need a lawsuit?
If it is not possible to alter the image to remove a potential copyright infringement then you must make clear to the organisation licensing your image that it is unreleased so they can attempt to seek clearance for using the work if possible. In the case of submitting to ImageBrief you should mark your image “No Release Available” and note the potential issue in the image caption.
Below are a number of examples to help illustrate potential copyright issues, assessed by our legal team, based on how likely a lawsuit may be brought against an infringer without proper clearances:
High Risk – If pictures displayed in an image can be made out at all their use can constitute infringement. Image Credit: Steve Back
Medium Risk – The artwork is copyrighted. Risk of prosecution may be slightly lower as this is a publicly commissioned work. Image Credit: Edward Duarte
Low to medium risk. Both graffiti and street art are copyrighted – but both are also generally illegal, so it is relatively unlikely someone would assert rights, especially in true graffiti. Image Credit: Tosin Arasi
High Risk – Although street art may be graffiti, this is definitely art and street artists and muralists are highly protective of their copyright. Image Credit: Lauren Ewart
High Risk – This is copyrighted artwork. In addition the artist Robert Indiana has asserted trademark rights in this work. Double whammy! Image credit: Charlie Bennet
Medium-High Risk – Partial display of an artwork can constitute infringement like this use of the Chicago Cloud Gate. Image Credit: Victor Korchenko
Medium Risk – This image shows an artwork that would be copyrighted if not aged into the public domain. It also appears this work is displayed in a museum; museums often have anti-photography policies, which would raise risk of using this image. Image Credit: Santosh Verma
Medium Risk – There are two potential copyright issues in a work like this, which is a drawing of a sculpture: (1) copyright in the sculpture, and (2) copyright in the drawing. This looks like a 19th century drawing of a classical work – in which case both would be in the public domain – but the works’ ages should be checked. Image credit: Janie Mertz
Medium Risk – Filming and photography of the exterior of copyrighted architecture from a public location is generally acceptable. Be careful though as parties may, however, assert trademark rights in a distinctive landmark like this Gehry concert hall. Image credit: Richard Wong
Medium-High Risk – This is a copyrighted work and the setting may also raise location issues. We note that this particular statute was installed in 1937 and is likely not in the public domain – but that it may be worth checking on works of similar age to see if they are. Image credit: William Woodward
High Risk – An interior image like this one presents architectural copyright issues due to the unique design (U.S. copyright law has no film/photography exception for interior shots). Image credit: Dara Pilugina
Medium to High Risk – Because this is an interior shot of a recent building this image presents architectural copyright issues. Also paintings are present in the background which can be depicted. Image credit: Adam Letch
High Risk - Eiffel Tower at night? Big no. Eiffel tower illuminations are subject to both copyright and trademark. Image credit: James D. Watt
We hope that these guidelines will help with your copyright questions. Stay tuned to this blog for our next installment, when we address trademarks.
Want to join our awesome community of professional photographers? Register here and include your portfolio for us to review and start selling your images to the biggest brands in the world.
Although we love to work with advertising agencies looking for that key hero shot for tens of thousands of dollars, we also love our big brands who need HUGE volumes of images. The latest big client to put money in the pockets of our awesome contributors was a major beverage brand in Russia. 38 images were awarded from their first ever brief, submitted by 20 different photographers.
The brief was Lifestyle, travel & social shots of Russia which called for unique and positive imagery, avoiding touristy cliche’s of specific locations around the country. We had a fantastic response from photographers in many different countries but our Russians came up with the bulk of the goods. Alexey Sizov had 8 of his images awarded and another 16 photographers shared the other 30 images awarded. The total award amount awarded runs in the tens of thousands of dollars.
Thanks to our brilliant shooters that submitted. Here’s a selection of the awarded images.
PDN has posted a really interesting article on the rise of native advertising being good for professional photographers but also raises the question - is good art direction ‘purely picking the right photographer’? As suggested by the ECD of Patagonia, Dmitri Siegel.
Native advertising calls on brands to seamlessly integrate their ads with user generated content by making them appear, well, not like ads. This means images that fit right in with your best bud’s birthday snaps at the beach and that sun drenched afternoon bbq gathering. Native ads are tipped to be the next massive trend in social advertising yet they still need to stand out to be effective. That means photography at a level above most user generated images. As we know, most photographers share their visions of our world as it happens through their own personal portfolios. But that doesn’t always mean a good photographer can capture any brand’s ideas and portray them to the world. A well art directed ad is now more than just the message and how it is laid out, but the visual style that is captured by the shooter behind the lens. So does this mean that agencies and brands are shifting the type of photographers they are hiring to photographers capturing moments with a more raw feel and less polish? Perhaps a photographer with a cutting- edge and creative eye that has internalised the visual essence of a brand is more suited than a well entrenched pro shooting for Nike or Coke?
What do you think - is the future of good art direction more about choosing the right photographer than the skill of art direction?
Share your thoughts in the comments.
In the wake of the furour that occurred late last year with Instagram’s changes to it’s terms of service comes it’s announcement to start advertising at last. We’re all familiar with the backlash from their community to their original proposed terms that stated “You agree that a business may pay Instagram to display your photos in connection with paid or sponsored content or promotions without any compensation to you”. Although their backtrack and revisions seemed to have quelled people’s fears and the class action lawsuit against them has been dropped, there is still some contention over how the service can actually use your images for profit. Nilay Patel’s article for The Verge investigates it in depth and concludes they ultimately don’t have permission to sell your photos. Yet contradicting opinions still pervade the community, this article from Timely Tech claims that the questions around ownership and legality are still far from settled. Opinions are strongest from professional photographers who for too long have suffered from unlicensed and illegal use of their images.
So far we’ve held fire on promoting ImageBrief and our photographers through Instagram for exactly this reason, but believe it’s now time to launch our account as the opportunities to promote our amazing photographers through it far outweigh the risks.
What do you think? Do you post your portfolio and professional work to your Instagram? How concerned are you about the risks? Let us know!
Graham Hughes hails from Scotland and is one of our highly successful contributors to the site. So far Graham has clocked up almost $10,000 in image sales through the site. His ImageBrief shots have been used by All You Magazine, Accenture, Expedia’s outdoor branding campaigns and various other advertising produced by creative agencies around the world.
We caught up with Graham to get his 5 cents on photography and some insight into how to win briefs.
Graham’s winning image on a Wellington, New Zealand Bus
Tell us about the photography business up in Scotland - what are the unique challenges or considerations to winning and producing good work in that part of the world?
Being pro active in approaching companies and not expecting everything to come through my own website. SME’s are very important to my business.
Being in the UK you are very close to the recent uproar about the Enterprise and Regulatory Reform Act that has so many photographers and the industry in general concerned. What is your take on this new legislation and how have you seen it affect the local photography community?
I wrote a letter to Vince Cable about the whole Orphaned works legislation right at the beginning and received the usual letter explaining how great it would be. Not convinced. It’s just a really bad idea.
Has any of your work been used illegally and what were you able to do about it?
Yes. Loads. I have managed to receive payment in certain circumstances but it takes so much time, effort and money. The UK’s laws are not the best at protecting the creatives of this world. There’s a theme developing here.
Graham’s winning images on for All You Magazine
What is the biggest change that you’ve seen in the photography industry over the last 10 years and how has it affected you personally?
The Internet. I only got online in 2000 but you can see how it is re-shaping so many industries, not just Photography. It gives with one hand and takes away with the other. The Stock side of the business has changed so much in this short period. On a positive note, things like ImageBrief seem to redressing the balance.
What do you see the future of photography holds over the next decade and how do you think photographers should prepare for it?
I think brands will still use Professional Photographers and CG Artists but there will also be more use of customers images though social media sites.
Graham’s winning image on for Accenture
Graham you’ve had some good success on ImageBrief with almost $10,000 in image sales and a high accuracy of your images matching the brief requirement. We’d love you to share with fellow photographers your experience with ImageBrief and some tips on how to get the most out participating.
Read the brief and study the reference images very closely. I use a slightly focused yet erratic approach. If I get an idea that I think is relevant, in some cases I will create it. The budget dictates to a certain extent how much time will be spent but not always. If I really like the creative concept of the brief and I get an idea that appeals I just have to see it through to completion. You also need to keep an eye on what has been submitted. I almost didn’t submit my Venice image to the Bucket list brief because it didn’t have any people in it. I saw other images without people had been submitted and uploaded. A certain amount of luck is also involved.
Graham’s winning image on a Sydney billboard
Finally, tell us about any personal projects, exhibitions or artistic works you are working on and what inspires you to create these works.
One of my personal projects is a series of toy images that I really enjoy working on. I plan to add another image to the series soon. I get a lot of inspiration from films and special effects. I recently bought the Elysium concept art book. Syd Mead has always been an inspiration. I love the thrill of seeing an image in my minds eye and bringing it to life.
See some more of Graham’s work on his portfolio page.