Using Photos Legally . . .

By Carolyn E. Wright, Esq.
Special to The Stock Asylum
December 22, 2005

You “buy” a rights-managed photograph from a stock agency to add impact to your website. You now have the digital file of the photo. So, can you also use it in your company’s brochure? Probably not – unless you want to risk steep statutory fines and attorney’s fees!

There exists a significant body of law surrounding the use of photographs, especially for commercial uses. Understanding and following the rules is the best way to avoid costly legal consequences.

Where stock photography is concerned, you must, of course, strictly adhere to the terms of the license you purchased when you “bought” the image.

But, you also should be aware of copyright laws as they pertain to various objects in an image, the rights of people portrayed in the image and the rights of property-owners whose property appears in the image. Trademarks within an image can present yet another problem.

Such issues can cause legal difficulties even when you have properly licensed an image. You could be legally responsible for such problems, depending on the agreement you have with the photographer or image distributor.

This article will explain some vital issues to consider when using photographs.

Copyright

Copyright is a legal form of protection for all original works of authorship, including photographs. It extends throughout the United States and most other nations. For photographers, the copyright is created at the click of the shutter. The image is protected under copyright law whether it is recorded on film or in a digital format. Electronic images on a CD or on the web are protected by copyright rules, just as prints are.

A photographer owns the copyright for her photographs unless they fall into the “work for hire” category. Images are considered to be work for hire when: (1) the photographer is an employee hired to photograph for the employer (such as a photojournalist who works for a newspaper); or (2) the photographer is hired to photograph pursuant to a contract and the contract specifically includes the provision that the copyrights to the images shot for the contractor belong to the contractor. Therefore, if you hire a photographer to take pictures for you, the photographer owns the copyrights to the images unless you have hired the photographer pursuant to the guidelines above.

Copyright ownership is important because the owner has complete legal control of any reproduction of the image, preparation of derivative works based on the image, distribution of the image by sale, rental or lending, and/or display of the image. Copyright owners also have the right of “attribution” and “integrity,” which means that the creator of the work may insist that she get credit for her work, and not get credit for something she did not create.

A copyright may be transferred to someone else in writing. Thus, the act of simply giving a slide to a publisher, sending digital files to a client or selling a print does not in itself transfer the copyright or create a license to publish the slide or digital image.

While a photographer may give “non-exclusive rights” to a publisher, client or customer, the photographer still owns the image copyright and may dictate how that image is used. If the copyright is transferred to another (pursuant to the writing and signature requirements), the photographer relinquishes all rights to the image as if the photographer never took the photograph.

A photographer may give others a license to his photographs verbally. However, such agreements should be in writing so everyone understands what rights are granted.

Copyright law also protects a photographer’s expression of the photo’s subject as contained in the elements of composition, such as the selection of lighting, shading, camera angle, background and perspective. The test for whether another photograph infringes the work is whether it is "substantially similar" to the first work. In other words, would the average person recognize the copy as having been taken from the copyrighted work? It’s a subjective test, but if there is additional proof that the second photographer meant to copy the first photograph, then the second photo is an infringement.

Publisher’s Copyright in a Collective Work

Many people compile photographs text and graphics to create a “collective work.” Section 101 of the Copyright Act defines a collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.”

A collective work is a type of “compilation.” Section 103 defines a compilation as copyrightable subject matter. It is a “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” It is not necessary that the contributions come from different authors or photographers to comprise a compilation, but they often do.

As with the individual photographs or text, a collective work may be registered with the US Copyright Office and the registration protects all of the copyrightable elements that comprise the collective work. That is, the specific selection, coordination or arrangement of the individual pieces is protected. So when you license photographs to include them in your compilation, you may protect that arrangement by registering the new work. But the copyright of the photograph remains with the photographer.

Licensing

When you pay for a photograph, you acquire a license to use that image only pursuant to the terms of the license. You contract with the photographer or agency for a specific use and during a specific period of time. For example, you may not be able to use the photo in materials distributed outside of the United States or on the web unless those uses are specifically authorized under the license.

Many users of photography mistakenly believe that because they have the digital file for an image they can use the photo again and again. If they use a photograph beyond the terms of the license, they have broken the law and should be prepared to defend an infringment suit. Even royalty-free and subscription images are subject to licensing agreements so buyers should also study the terms of these contracts. Licenses from different distributors can vary considerably.

Fair Use

Many photos include other copyrighted materials in them. For example, a street scene may include a billboard with an advertisement, a newspaper on a news stand and products in a store window. Less obvious copyrighted items could exist in the sculptural ornamentation of a lamppost, the patterned fabric of a woman’s skirt and a toy held by a child. You could never track down each copyright owner for permission to use the photo. But you may not be out of luck if you want to use the image commercially.

While copyright law can be restrictive, it is not irrational. Copyright law includes the doctrine of “fair use,” allowing unauthorized use of copyrights in certain circumstances. The courts recognize that free expression and avoiding law suits over minor issues are more important than protecting intellectual property rights.

The doctrine of fair use also means that copying will not infringe when the use is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”

Four factors are considered to determine whether the use qualifies under the doctrine: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use upon the potential market for or the value of the copyrighted work.

So if the copyrighted material that appears in the photo is covered by these four categories, you do not need permission to use the photo. Still, it is always best to seek permission to use a copyrighted work.

Rights of Privacy – Model Releases

In general, when people are in public they may be photographed. The use of the photographs, though, can be restricted due to certain privacy rights. A person’s right to privacy is recognized in most states, but with differences in each state. It is, therefore, tricky to know what you can do. The safest approach is to follow the most restrictive rules.

Privacy rights can be subdivided into four areas. The first is “invasion of privacy” or “intrusion upon another’s seclusion.” This happens when a photographer intrudes a person’s private domain in a way that would be considered offensive to the average person. Using a photo that may have invaded a person’s privacy is not a violation of that right, however. Only the photographer has to be concerned with this issue.

The second privacy right involves the public disclosure of private facts.

Proving this requires that an ordinary person would consider the disclosure of the private facts offensive. This law is difficult to enforce because, if the disclosed information is true, courts usually find that First Amendment interests outweigh privacy rights. Because of the required elements, it rarely applies to the use of photographs.

The third right of privacy is the portrayal of a person in false light, which often happens with photographs, usually because of the caption with the photo. It requires someone to be publicly portrayed in a false manner in which an ordinary person would find the portrayal offensive. To be liable, the photograph’s publisher must have known or recklessly disregarded the probable falsity of what is represented. It is similar to defamation, when someone’s reputation is damaged by a statement that is known or should be known to be false. False light does not require that the person was damaged.

The fourth right of privacy, also known as the right of publicity, is the commercial appropriation of someone’s name or likeness. It happens when someone gains commercial benefit by using the name or likeness of another without consent. It usually occurs when a photograph of a person is used in an advertisement without the person’s permission.

That is why model releases are so important. Many stock distributors keep releases on file and can supply copies to customers. If an image is to be circulated widely, it may be wise to request a copy of the signed release from the distributor. Permission is not required to use a person’s name or likeness for editorial or newsworthy publications.

Property Releases

Copyright law provides a specific exclusion to the protection of architecture. In general, you do not need a property release to use a photograph of a building in any manner. But this exclusion does not include statues or other items that may have separate copyrights. However, if the statue or copyrighted item has minimal presence in your image, your photo still may fall under the exclusion. Otherwise, you must get permission to use the image for commercial purposes.

For security purposes, there are restrictions on using photographs of some governmental property, such as military and nuclear installations as well as federal seals and insignia.

Some companies have tried to prevent the use – both commercially and editorially – of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree at Pebble Beach, CA, and the “Hollywood” sign.

While these attempts have been unsuccessful, they can be expensive to litigate.

Depending on the circumstance, a model or property release may not be legally necessary. But getting one never hurts and it may help. It may make some people think that they can't sue you (they can, even if their cause of action is bogus). If they do sue you, having a release may shorten the litigation and it could help you win. Even when you win, though, your defense fees can be costly.

Conclusion

When it comes to using photographs in your business, ignorance of the law is no excuse. Just as you want to be paid for your work and you want your work protected and respected, so do photographers. So perform your due diligence to learn what is needed when using photographs.

( Carolyn E. Wright, Esq. is an attorney from Decatur, GA, who specializes in copyright and other law as it pertains to photography. )

Carolyn E. Wright's web site is at: http://www.photoattorney.com

Her blog about the law and photography is at: click here