If there is a single question most often on the minds of photographers, it is probably a legal question about when a photography copyright release is needed. 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 of publicity or privacy.
While we are not attempting to provide you legal advice (you should get a lawyer for that), our goal with this series of blog postings is to provide you with a better understanding of the different intellectual property and personal rights laws so you can make educated decisions and hopefully keep yourself out of legal hot water! Everything you read here is based on US law, which is a good benchmark to use because U.S. law is well-developed, and because the U.S. 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?
Copyright protects “original works of authorship”, which can include photographs, art, drawings, sculptures, books, lyrics, etc. But it’s important to remember that copyright rights extend only to “protectable expression” – i.e. copyright protection is limited to the particular means of expressing ideas and facts and does not extend to the underlying ideas or facts themselves. In other words, copyright protects an author’s “expression” of ideas and not the underlying idea itself.
A good rule of thumb for visual artists is that anything that is designed is automatically protected by copyright law, including designs, photos, artwork, architecture, tattoos and street art and graffiti (for graffiti, only creative works will be protected, a couple scrawly lines won’t cuFirst of all, you need to wrap your head around the fact that copyright is absolute. Owners of copyright have the exclusive right to (i) reproduce their work; (ii) prepare derivative works based upon their work; (iii) to distribute copies of their work to the public; and (4) display their work publicly. 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. (Remember, possession is not ownership! Just because you own and possess that original Warhol, doesn’t mean you own the copyright in the work.) 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!
Generally, copyright protection in the U.S. will apply to anything made after 1923. This means that older creative works, such as the Mona Lisa or a photograph of Mark Twain, are likely considered public domain and thus use of these works would not constitute copyright infringement.
Types of Copyright Infringement
Copying, selling or using an image that is owned by someone else without written permission (in the form of a photography copyright release) 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 (basically, anything not purely functional).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. Note that in the U.S., federally government buildings and work and generally not protected by copyright (they belong to the public). So an image of a federal monument can likely be used commercially. Note that U.S. state buildings/monuments may be protected by copyright, so be careful. In general, using an image of copyrighted architecture without permission will breach the law. And be careful here, because even if a building does not have “copyrightable elements” many buildings may be protected as a trademark (e.g., New York City’s Flatiron Building).
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.
Photography Copyright Checklist
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.
When to use a Photography Copyright Release
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.
Medium Risk – The artwork is copyrighted. Risk of prosecution may be slightly lower as this is a publicly commissioned work.
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.
High Risk – Although street art may be graffiti, this is definitely art and street artists and muralists are highly protective of their copyright.
High Risk – This is copyrighted artwork. In addition the artist Robert Indiana has asserted trademark rights in this work. Double whammy!
Medium-High Risk – Partial display of an artwork can constitute infringement like this use of the Chicago Cloud Gate.
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.
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.
High Risk – This is a heavily designed building, and by a famous architect to boot, the exterior is very likely protected by copyright. In addition, the owners may assert trademark rights in a distinctive landmark like this Gehry concert hall.
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.
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).
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.
High Risk – Eiffel Tower at night? Big no. Eiffel tower illuminations are subject to both copyright and trademark.
We hope that these guidelines will help with your copyright questions. Stay tuned to this blog for our next installment, when we address trademarks.
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