The tangled web of image copyright

When I started designing websites I was 14, so I didn’t pay much attention to image copyright. I found the images I wanted from one of the hundreds of Free Clipart sites that were out there, and considered it a day. I realized recently that I still didn’t know much about actual copyright law, so I decided to dig into it. (I’m specially covering U.S. copyright law herein.)

What is copyright? It may seem contradictory today, but copyright law was put in place to encourage creatives to produce more works. Copyright is bestowed upon the creator of an original work upon completion. You don’t have to apply for it, or do anything special, it’s automatically yours. Copyright law eventually expires and the work enters the public domain. This is important for the overall advancement of our culture because works in the public domain can be freely used, remixed or expanded upon by anyone, and the new work gets it’s own copyright and the cycle continues. Copyright used to expire upon the death of the holding author or artist, but over the years that time has been extended so today copyright generally lasts 70 years after death.

Copyright affects all creative works, but now let’s focus on images.

What is copyright infringement? Copyright bestows a set of exclusive rights to the holder, and if you infringe on their copyright you are violating those rights. I originally thought that I only had to worry about using an image as-is as the only type of infringement. Here are some other examples of imagery infringement, borrowed from StockPhotoRights.com, and they may surprise you.

  • Use of whole or part of an image without permission
  • Use beyond the scope of the license or permission
  • Adapting an image without permission (art rendering)
  • Asking another photographer to identically recreate the image

How do I license an image? Image licensing, especially photography, becomes more complicated because it’s not just the photographer that has rights over the image. Models (any people in the photography) need to sign a release saying it’s ok to use their face commercially. Additionally you may need property releases if the image contains buildings, public places or landmarks with photography policies (stadiums, museums, historical sites), unique vehicles or recognizable animals (like exotic pets, race horses, etc.). You also must be careful about showing trademarks in photos, because you can be sued for royalties or be forced to remove the image. (Trademarks are a whole other can of worms that you can read more about on your own.) So even if you take photographs yourself, remember to get signed model/property releases, and avoid capturing trademarks.

What are the benefits of licensing images from stock photo companies? Stock photo companies provide an umbrella of protection over you. Because the company is responsible for acquiring all necessary releases and validating the legitimacy of the image, if a lawsuit arises over the image the stock photo company is liable, not you. That’s one reason stock photos are expensive, because the company has to obtain all necessary documentation and then maintain it in case disputes arise. This can be important because even if you take an image from a site that claims it is free to use, you are the one that’s liable if anyone disputes that fact, and you have no guarantee that the proper releases were obtained.

Yeah, but I’m just using it for my non-commercial blog. Doesn’t matter. You’re still infringing on copyright unless you get the proper licensing and permissions. The only leeway is with the Fair Use doctrine, which is subjective and defined by four factors:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Where copyright protects the author or artist, fair use is supposed to protect the public interest. Fair use is entirely subjective and decided in federal court when challenged.

So what do I do? You still have a few options, you can take your own photographs (and obtain appropriate releases), use public domain or Creative Commons licensed imagery, or purchase images from a reputable stock photo broker. Regardless of what you choose, this is just an introduction to the intricacy of copyright law and I highly recommend learning more about it on your own.

 

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