Intellectual Property - Photography

Introduction

Photographers and users of photographs face certain risks when taking and publishing

photographs. This article provides an overview of the general legal principles applicable to

taking photographs of copyright works, trademarks and people.

It is written for photographers. However, most lawsuits are filed against the person who uses

a photograph rather than against the photographer. All businesses that use photographs (e.g.,

in their advertising, product packaging, website or business brochure), therefore, should be

aware of potential liabilities.

It is true that the applicable laws of countries are, broadly speaking, similar. Yet, there are

important differences. ii It is impossible to deal with here every law applicable to

photographyiii, or to discuss the relevant laws of all the countries worldwide. This article,

therefore, cannot be a substitute for legal advice in a particular business context. To know

how the relevant laws apply to specific facts and circumstances, please seek advice from a

competent local lawyer.

1. MAKING PHOTOS OF COPYRIGHT MATERIAL

Advertising, fashion, interior design and lifestyle photographers frequently include paintings,

sculptures, craft items, architectural works, jewelry, clothing, toys or other artistic works in

their photographs. Often, such items are protected by copyright. Only the owner of a

copyright has the exclusive right to reproduce the copyright work. Photographing a

copyright work amounts to reproducing it. Therefore, before you take a photo of any

copyright work, you need the prior permission of the copyright owner. Photographers who

infringe a copyright may be required to compensate for the economic loss, that is, to pay the

damages they have caused and sometimes also other expenses, such as legal costs.

1.1 When do you need permission from the copyright owner?

The response to this question depends on your answers to a series of questions about the

subject or object to be photographed, and the use to which the photograph would be put to.

1.2 Will the photograph contain an object that is protected by copyright?

Be warned: Copyright law protects a wide range of different types of material. Examples of

copyright works that are routinely reproduced in photographs are:

1. Literary works (such as books, newspapers, catalogs, magazines);

2. Artistic works (such as cartoons, paintings, sculptures, statues, architectural works,

computer and laser artwork);

3. Photographic works (such as photos, engravings, posters);

4. Maps, globes, charts, diagrams and technical drawings;

5. Advertisements, commercial prints, billboards and labels;

6. Motion pictures (such as films, documentaries, television advertisements);

7. Dramatic works (such as dance, plays, mime); and

8. Works of applied art (such as artistic jewelry, wallpaper, carpets, toys and

fabrics).

1.3 Has the term of the copyright expired?

You don’t need permission to photograph a work if its copyright term has expired. For most

works, and in most countries, copyright protection lasts for the lifetime of the author (artist)

plus an additional period of at least 50 years. In a number of countries, this period is even

longer. For example, 70 years after the death of the author in Europe, the United States of

America and several other countries.

If several authors are involved, then the term of protection is calculated from the death of the

last surviving author. Note also that special rules may apply to certain specific kinds of

works. It is, therefore, a good practice to check the applicable copyright law.

1.4 Will you use a “substantial part” of the work?

Do not think that you don’t need to worry about copyright issues if you include only a part of

a copyright work in your photograph, or if this work occupies only a very small amount of

space in your photograph. In general, you need a permission if the part of a copyright work

so used is considered to be a “substantial part” of that copyright work. A substantial part is

an important, essential or distinct part. 

However, there is (and can be) no general rule on how

much of a work may be used without prior permission. Often, the quality of what is used may

be more important than how much is used. The determination of a “substantial part” is done

on a case-by-case basis, depending on the particular facts and circumstances.

Example: “The Son of Man,” a painting from René Magritte, depicts a man whose face is

obscured by an apple. If you would only use the face with the apple, you may still require

permission. While, in fact, this is only a small part of the total painting, it is seen as a vital or

recognizable part of Magritte’s painting.

Because there is no hard-and-fast rule, relying on the defense that you are using only a “non

substantial part” of a work may be dangerous. The best advice is to ask prior permission from

the copyright owner if you are in doubt.

1.5 Will you do something that actually constitutes an act which the copyright owner has

the exclusive right to make?

As indicated earlier, photographing a copyright work is considered a way of reproducing the

work, and this is an act which the copyright owner has the exclusive right to do. This is why

you may need to get prior permission to include a copyright work in your shot.

Some other activities that only the copyright owner has the exclusive right to do (and for

which you may need permission) are:


 Making prints of a work, scanning it into digital form, photocopying it, copying digital

works, etc.;

- Making a collage from several different photographs or images;

- Adding new artistic elements to an existing work (e.g., colorizing a black and white

picture);

- Photographing someone’s work and then displaying the photo to the public (e.g.,

exhibiting the photo in a gallery, supplying copies to the public in postcard form, putting

it on a website, sending it to customers via e-mail, etc.).

1.6 Does a special exception apply?

Reckoning with the above, copyright considerations would place enormous restraints on

photography since it is impossible to avoid including copyright items in many photographs.

Fortunately, there are several legal exceptions that allow you to reproduce copyright works (in

a photograph) without permission. However, the exceptions vary from country to country and

are not always easy to determine. Exceptions are generally covered by what are know as

limitations or exceptions to copyright which are specifically mentioned in the national

copyright law, or by relying on the concept of “fair use” or “fair dealing.”

It is not the purpose of this article to provide a full list of all exceptions that you could benefit

from. Rather, I explain hereunder some of the most common situations in which you may be

free to photograph copyright material by an exception from copyright protection.

• Taking photos of buildings

Architectural works are protected by copyright to some degree, but in most countries you may

photograph a building, if the building is located in a public place or is visible from a public

place. You may also publish and distribute the photo without permission.vii

• Taking photos of copyright works in public places

In some countries, you don’t need permission to photograph certain artistic works that are

permanently displayed in a public place (for example, in a park or on the street). You can

also publish and commercialize the photograph without infringing copyright.

However, this exception applies only:

- To certain types of works: usually, only to three-dimensional works, such as sculptures

and craft. So, you may still need prior permission to take a photo of a painting or a mural

in a public place;

- If the work is displayed in public: to photograph a sculpture in a private house, a

permission will usually be required; and

- If the work is displayed in public permanently: if you want to photograph a sculpture

which is only temporarily sited in a public place, you would usually need permission.

• Taking photos to accompany news reports

Usually, copyright works may be used for the purpose of reporting a news. For example, you

could take a photo of a sculpture which won a major art prize, if that photo is to be used in a

news report on TV or in a media article discussing or announcing the award-winner.



However, you will usually have the obligation to identify the name of the creator, and maybe

also the name or title of the work that you have captured in your photo.

• Taking photos to accompany a review or critique

In most countries, copyright material may be used for criticism or review. For example, if

you are taking photos of cartoons for a book which reviews, critiques or analyses the works.

Just like for the exception of news reporting, you will usually be required to identify the

copyright work and the name of the artist.

• Taking a photo of a copyright work to advertise its sale

If you photograph a painting or other artistic work for the sole purpose of advertising its sale,

for example, in an auction or sale catalogue, then you will usually not need prior

authorization.

• Using a copyright work as a background in a photo

In most countries, you will not need permission if you want to include a work in a photograph

if its is merely a part of the background or is otherwise incidental to the principle

object/subject represented in the photograph. However, it may be difficult to assess what is

“incidental.” This will depend on all the facts and circumstances of each case. The question

you need to ask is why you want to include that particular copyright work in your photograph.

If it is essential to the purpose for which you create the photograph, then it is impossible to

say that it is “incidental.” Conversely, if you just want to include the work as something

casual and not directly relevant to any aesthetic purpose or commercial reason, then you

probably need no permission.

Example: You publish a photograph in a newspaper to illustrate an article concerning some

official gathering. The photograph incidentally contains a sculpture in which copyright

subsists. Such use is likely to be allowed since the sculpture adds no meaning to the main

subject matter. Conversely, if you would photograph that very same sculpture to print it on

postcards and sell them, this would normally be a copyright infringement.

• Taking photos for purely private use

In most countries, you are allowed to take photos without authorization, if you use them

purely for private purposes. For example, taking a photo of a painting to post on your home

refrigerator will generally not constitute copyright infringement.

1.7 From whom do you need permission?

You need permission from the copyright owner. In addition, permission from the owner of the

work itself may also be required. Therefore, getting permission(s) may sometimes be

difficult. Suppose that you are taking photographs of a painting in a friend’s private house.

Your friend probably does not own the copyright in the painting, the artist does.

If the artist is represented by a gallery or an agent, the gallery or agent may be able to assist.

Alternatively, there are collective management societies that grant copyright permission on

behalf of the artists. If you cannot find the copyright owner or the artist, and you think you

have made all reasonable efforts, then you will need to make a business decision as to whether

or not to take or publish a photograph of a work protected by copyright owned by someone

else.

1.8 What if you reproduce a copyright work without permission?

If permission was required, then the copyright owner can take legal action against you to

prevent or stop the unlawful activity (e.g., publishing a book or selling posters with the work

on it) and/or recover compensation or damages.

1.9 Do you need to identify the author of the copyright works you capture in your

photographs?

Copyright law provides some additional legal rights to the authors to protect their reputation

and their works against certain abuses. These are called “moral rights.” One of the key moral

rights is the “authorship right” or “paternity right”, which is the right to be named as the

author of the work.

If your photos include paintings, buildings, sculptures or other copyright works, and you or

your client will be exposing them to the public (publishing, using on websites, exhibiting,

etc.), then you and your client must make sure that the author’s name appears on or in relation

to the work, whenever feasible and considered reasonable.viii If you don’t want to give an

attribution, it would be prudent to get the prior permission of the author or artist.

1.10 Can you make changes to a work?

It is a common practice for graphic artists and others to download images from the Internet

and modify or adapt them by using graphics software. The altered images are often used in

magazines, books or advertisements. One of the exclusive rights of a copyright owner is the

right to create derivative works from his work – that is, new works based upon or adapted

from the original work. You should take care when you digitally manipulate other’s images,

as this is likely to be a copyright infringement unless you have obtained the copyright owner’s

prior permission. 

In general, if you make any changes to or recontextualize someone’s work, you need to ensure

that you respect the integrity of the work and that you do not damage the author’s reputation

or honor. For example, including a religious sculpture in a pornographic photo is likely to

damage the honor or reputation of the artist who created that sculpture and could provide the

basis of a legal action against you.

1.11 Can you copy ideas from a copyright work?

Copyright does not protect ideas or facts. It only protects the way ideas are expressed in a

particular creation. This means that you are free to copy someone else’s ideas but not the

particular original expression of that idea.

Example: Photographer John takes a picture of the famous bridge over the River Kwai in

Thailand. This may inspire you to do a series of photographs of the river scene. John’s

original work is copyrighted, but not the bridge and the river. John can, therefore, not prevent

you from taking pictures of that same bridge. However, he has the right to prevent you from

duplicating in any manner his original picture.

MAKING PHOTOS OF TRADEMARKS

Since most enterprises want to keep control over how their trademark is used, the inclusion of

a trademark in a photograph can be a sensitive matter.

2.1 Can you freely take photographs that include trademarks?

Unlike copyright law, trademark law as such does not restrict the use of a trademark in a

photograph. What trademark law does forbid is using a trademark in a way that can cause

confusion regarding the affiliation of the trademark owner to the image. If consumers are

likely to mistakenly believe that a photograph was sponsored by the trademark owner, then

there may be trademark infringement

Example: Printing a photograph containing the Nike trademark on sportswear could result in

trademark infringement. In fact, by such use it would be assumed that you are trying to

appropriate some of the goodwill associated with the Nike trademark. Consumers will

presumably think that the fabrics are affiliated with the Nike trademark.

MAKING PHOTOS OF PEOPLE

3.1 What should you bear in mind when photographing people?
There is no general legal requirement to obtain someone’s authorization to take his or her

photograph. However, there are situations where photography can infringe on important

social interests such as national security, protection of children, right of privacy, etc. Most of

these situations are strictly controlled by national laws and regulations. Irrespective of the

legalities, there are also some things a photographer should not photograph for ethical

reasons. Certain photographs of people may amount to exploiting the persons concerned or

misrepresenting the truth. If you, as a photographer, know the law and one’s legal rights, you

will also be in a better position to find solutions that minimize your legal risks.

Often, you may be free to take a photograph of a person, but the way the image is used may

give the person shown in the photograph a right to take legal action.

3.2 Are people protected by intellectual property rights?

People are not protected by intellectual property rights. But be cautious when you photograph

someone who is wearing something protected by copyright, industrial design or trademark

rights. For example:

- A model wearing a piece of haute couture or some jewelry;

- An actor wearing a theatrical costume; or

- A sportsperson wearing a t-shirt with a badge or logo on it.



3.3 When is a permission particularly recommended?

When you snap a picture of another person, two fundamental rights often come into play: the

right of the photographer to free expression and the right of the subject to privacy (the right to

be left alone). Many countries have privacy laws that affect the circumstances in which you

may photograph people and, to a much broader extent, the circumstances in which you may

use images of people.xii Hereafter are described some potential restrictions in many countries

on taking and using images of people.

• Intruding one’s privacy

Photographers may be liable for violating the privacy rights of others when they intentionally

intrude in an offensive way upon someone’s private domain. You can usually photograph

someone in a public place. But if you surreptitiously or without permission view and

photograph people inside their homes, business or other private areas, then you are likely to

violate their privacy rights. An offensive intrusion can be anything from, say entering an

individual’s house under false pretense, to setting up hidden cameras in order to spy.

• Publicizing private facts

Disclosing a matter concerning someone’s private life to the public could also raise issues of

privacy rights. Unless you have permission, you should refrain from publishing or

distributing any photo that reveals private affairs of a person, especially if the matter

publicized is of a kind that (a) would be highly offensive, and (b) is not of concern to the

public.

 Photographs revealing sexual affairs, private debts, criminal records, certain diseases,

psychological problems, etc. are likely to violate privacy rights.

Example: Suppose a beer brewery is selling a calendar that depicts an unknown person

driving a car with a refreshing pint in his hand. This could raise issues of privacy because it

discloses private or sensitive matters about the person.

However, in most countries, the right of privacy does not protect against disclosure of matters

of legitimate public concern such as newsworthy events. This means that politicians,

celebrities and other newsworthy persons may lose their right to privacy to the extent that

their private facts are relevant to legitimate news.

Example: You would generally be allowed to publish photos of a top football player taking

performance-enhancing drugs, because this is a newsworthy fact. But revealing his sexual

activities may be an invasion of his privacy because this disclosure is highly personal and has

no bearing upon his public role.

Furthermore, many laws do not protect private matters if they are in public view (unless the

portrayed person has taken care not to disclose private details to casual observers). Thus, a

photo of a mother grieving for her daughter who was victim in a car accident, if it was taken

while she was on the street, is usually not considered to be an invasion of privacy. But this

does not mean that all such photography is ethical. There are situations where photographers

should consider refraining from photographing people, even if it would be legal.

In case of doubt, the best way to protect yourself from being sued for infringement of privacy

rights is to obtain written permission from the person you want to photograph.



• Using someone’s image for commercial benefit

Many countries recognize that individuals have a right of publicity. The right of publicity is

the direct opposite of the right of privacy. It recognizes that a person’s image has economic

value that is presumed to be the result of the person’s own effort and it gives to each person

the right to exploit their own image.

Under this right, you could be liable if you use a photograph of someone without their consent

to gain some commercial benefit.

Although the right of publicity is frequently associated with celebrities, every person,

regardless of how famous, has a right to prevent unauthorized use of their name or image for

commercial purposes. However, as a matter of practice, right of publicity suits are typically

brought by celebrities, who are in a better position than ordinary individuals to demonstrate

that their identity has commercial value. You should, therefore, act with special caution

before using a photograph of a celebrity for your own commercial gain. If you consider

selling photos of celebrities or using them in advertisements or on your website, then you

should certainly obtain photographic releases (that is, permission to do so) from the people

portrayed in your shots.

Example: Putting an unauthorized photograph of the tennis star Kim Clijsters on the cover of

a sports magazine after she wins a grand slam final, would probably not be considered an

infringement of Kim’s right of publicity, since the use is mainly informative. Conversely, if

you print that same picture on posters and market them, you are simply trying to make money

by exploiting her image. Kim Clijsters would have grounds to file a lawsuit for infringement

of her right of publicity. This can result in monetary damages against you, and/or forced

removal of the posters.

Example: A photographer who displays someone’s portrait, without having first obtained the

permission, in his shop window or on his website to advertise portrait services, may in some

countries be liable for violating the privacy rights of the portrayed person.xiii

While an individual’s right to privacy generally ends when the individual dies, in many

countries, the publicity rights continue many years after death.xiv This means, for example,

that it is illegal in some countries to use a photo of Marilyn Monroe or Elvis Presley for

commercial purposes without the consent of their estates. As a matter of fact, many

representatives of well-known authors, musicians, actors, photographers, politicians, sports

figures, celebrities, and other public figures continue to control and license the uses of those

persons’ names, likenesses, etc.

• Suggesting that someone is authorizing or endorsing a product or service

Golf star Tiger Woods acts in Buick commercials, tennis player Anna Kournikova promotes

Omega Watches and Nicole Kidman is the face of Chanel No 5. Businesses have long

appreciated the value that celebrities bring to the promotion of their wares. The presence of a

celebrity seems to be an effective tool of quickly attracting consumer attention to a product or

service and creating high-perceived value and credibility.

However, before using the photograph of a person in an advertisement to sell products or

promote services, it is strongly advisable to get prior explicit permission of that person.

Without authorization, that person would have grounds to take action against you for “passing

off” or for “unfair trade practices.”

Example: If you put the face of Kim Clijsters on the packaging of tennis balls, you are

suggesting that she endorses the tennis balls. Thus, you are capitalizing on her reputation.

• Putting someone in a false light or defame someone

Photographs can place someone in a false light or defame someone.xvii It can occur, for

example, when a picture is airbrushed or altered in a way that exposes the subject to hatred or

ridicule. It can also occur when a photo is used to illustrate text in a way that it creates a false

impression. This often happens when significant information about someone is either omitted

from or added to a story such that the person is portrayed in a false light.

Example: A photo depicts a man who is incidentally walking in front of a brothel. Publishing

that photo to illustrate an article on child prostitution could lead to a lawsuit.

Example: Adding a caption under a photograph of a Buddhist leader that falsely attributes a

quote on religious intolerance to him is likely to amount to defamation.

Example: Figure skater Nancy Kerrigan brought a defamation suit against a company that

was selling pornographic photos fudged to resemble her. One photo showed a nude woman

ice-skating. Nancy Kerrigan’s face was affixed onto the nude body. The photos were

advertised on the Internet and could be bought on a CD-ROM.

Example: Photographers may be liable for defamation, false advertising or unfair competition

if they help to create advertisements that lower the reputation of a competitor’ character, his

business or his products or services.

Never use photographs in a way that exposes someone to hatred, ridicule or contempt, or

reflects unfavorably upon one’s personal morality or integrity. A person who is portrayed in a

false light or defamed may bring a lawsuit against you for the damages he has suffered (such

as humiliation, the loss of a job or the ability to earn a living).

Tips for Photographers

• The best way to protect oneself against lawsuits - when feasible and appropriate - is

probably to get a prior written permission from the subject of the picture, or the

(copyright) owner of any object or property to be photographed. Remember, however,

that the extent of what may be legally used will be governed by the terms and context of

that consent. Even when it is lawful to photograph without any authorization, it may still

be advisable to get a permission. In fact, many advertisers and other potential clients

demand releases before they will buy the rights to use a picture.

• If you license a particular image to a client for purposes of manufacture, sale or publicity,

require the licensee to indemnify you for any liabilities arising out of the licensed use of

the image. This is usually done through an indemnification clause in the licensing

contract.



• If you have not obtained written permission for a particular photograph, it is a good idea

to add a disclaimer on the back of the picture, such as: “This photograph cannot be

modified for commercial or advertising use, nor can it be copied or reproduced in any

form without the photographer’s permission.” This may limit your liability should

someone else make unauthorized use of your photographs.

CONCLUSIONS

Photographers need to know about legal restrictions concerning taking of photograph s that

include any copyright material, trademark, identifiable person or private affairs. Each time,

they need to evaluate whether they should obtain prior written permission, or whether they

should warn their client of the potential legal issues.

Similarly, businesses that use images created by photographers need to know about potential

legal liabilities. It is a good practice to require a warrant from the photographer that they own

or have permission to use any material that they provide to you and that the contents do not

violate any law or regulation.

To be in the clear from a legal perspective is not enough. While understanding the laws

applicable to photography may help deal with the legal aspects of taking and using

photographs, it is highly advisable that photographers and users of photographs also formulate

their personal ethical code. Publishing photographs of people can cause the suffering or

humiliation of the people depicted in situations that are embarrassing, painful or private. It is

in such situations that photographers and users need to balance ethical considerations

associated with the taking or publishing of photographs with their legal obligations under

copyright and other laws. I would like to conclude with a quote from Bert P. Krages:

“The personal choices that a photographer needs to make regarding material and the manner

of execution not only reflect how he or she sees the world, but also reflect how the world sees

the photographer as an ethical being.”