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A Picture is Worth a Thousand … Permissions? by Jacqui Lipton

I’ve been asked by a lot of authors lately about using other people’s photographs in their work, and what kinds of permissions they might need. As most writers realize, this can be a tricky area of the law because you not only need to know who owns the photograph, but also who owns COPYRIGHT in the photograph, if it’s not in the public domain. If that wasn’t difficult enough, sometimes you’ll also need permission from a person depicted in the photograph to use their likeness, or from the owner of some other intellectual property right depicted (e.g. a trademark or copyrighted piece of artwork).

This blog post outlines some of the key questions you may want to ask if you’re thinking of reproducing a photograph in your work. I have to start out with the usual disclaimer that this post is not intended as formal legal advice and those who do need help with a particular issue should contact an attorney. I should also note that a lot of the problems with photographs don’t have clear answers in any event and many of the situations are incredibly case-specific. This post is an overview of the kinds of issues that can arise when using other’s photography in your work.

Often the safest course is to seek permission. You’ll need to find the relevant rights-holders, which is easier to do if you use photographs that are released under express licensing terms, like those you find through services like Shutterstock.com.

However, if there are particular photographs you want to use that you found, say, online or in your parents’ attic, you shouldn’t assume you’re free and clear of any intellectual property related complaints simply because there was no copyright or trademark information on the photograph you found.

Who Owns Copyright in a Photograph?

The first thing to understand about photographs is that the person who owns a copy of a photograph is not necessarily the person who owns copyright in it. If you think about it, this is the same as a book, a CD, or a DVD. If you own a copy of John Grisham’s latest thriller, that doesn’t mean you have the right to copy Grisham’s words. You can’t reproduce his work without permission. It’s the same with a photograph. Even if you own a copy, that doesn’t necessarily mean you own the copyright, unless you took the photograph yourself or you’ve purchased the copyright, or a copyright license, from the person who owns it. Usually, copyright belongs to the person who took the photograph unless it was a work made for hire: that is, a photograph taken under an agreement that gave copyright to someone else (usually the person commissioning the photograph or maybe the photographer’s employer).

Interesting factoid: Over the last six or seven years, American courts have been dealing with the question as to whether an animal (in this case, a macaque monkey) can own selfies taken with a nature photographer’s camera. The case is still making its way through the courts, so the jury is currently out on the question so to speak, although it seems relatively clear under American law that animals cannot own copyrights.

 

The © Symbol

Before 1989, American copyright law required all copyright works to be registered and have a © notice affixed to them to be protected, but that’s no longer the case. It’s also not typically been the case in a number of other countries. So, any photographs taken outside the United States, or within the U.S. after 1989, may be copyrighted even if they do not have a © symbol attached.

Whether or not there’s a © symbol on the work, if you can’t find a copyright holder despite taking all reasonable efforts, your attempts to find them won’t give you any particular legal defense if you publish the photograph anyway and later find out you’ve infringed a copyright. Copyright infringement is what’s known as a “strict liability” wrong which means you can be liable even if you tried to find the copyright holder and failed.

Fair Use and the Public Domain

There are some defenses to copyright infringement, like fair use, but fair use often doesn’t work in a situation where you’ve made a commercial use of someone else’s photograph: such as by commercially publishing your book including their image. Of course, if the photograph is in the public domain, it’s free to use without permission. No one holds copyright in it. For more on the public domain, and on the difference between the public domain and the creative commons, see my previous blog post on the subject.

Photographs of People

If you want to use a photograph of a person, the permissions situation under American law can be pretty murky. The law that protects people’s “likenesses” is a disharmonized pastiche of individual state’s laws. These laws are referred to as the “right of publicity”. They prohibit the unauthorized commercial use of names and likenesses of famous people, but the exact scope of the laws differ from state to state: for example, in some states, the right expires on the death of the person, but in other states it passes to their heirs.

With respect to non-famous people, most states also have privacy laws that prohibit the commercial use of photographs of private individuals. So theoretically anyone appearing in a photograph published in your commercially available book could sue for misappropriation of their likeness. However, these privacy laws have been notoriously difficult to enforce. Often people depicted in photographs don’t have the resources to bring legal claims and, even if they do, it’s often very difficult for them to establish harm or damage. Nevertheless, if you know the person depicted in a photograph you want to use, it’s not a bad idea to seek permission if you can get it.

Photographs of Copyrighted Works

If the photograph you want to use depicts, say, copyrighted artwork (like a painting or sculpture), you may also need to seek permission from the copyright holder of that artwork. So if you want to use a photograph of a photograph you may need permission from both photographers.

Remember that copyright covers a lot of different types of works. If you want to copy things like still images from a movie, a book cover, illustrations from someone else’s book, or even some copyrighted toys and games, you may need to seek permission.

Of course, not all copyright holders will have a problem with you using their work. Many won’t care one way or the other. Some might ask for attribution rather than royalties in return for their permission to use the image. So don’t assume permissions will always leave you out of pocket.

Photographs of Trademarks

The news is slightly better for writers who want to use photographs incorporating trademarks or trademarked products (like a sports team logo on a shirt or a Coca Cola bottle). The law protects trademark holders against: (a) uses that are likely to confuse consumers as to the source, sponsorship or affiliation of their products (known as trademark infringement); and, (b) uses that are likely to cast the mark in a disreputable light, or lessen the mark’s strength as the identifier of a source of a particular product or service (known as trademark dilution).

In most cases, authors who want to publish photographs that incidentally happen to include a trademark will not have done either of these things. Unless your use of a photograph with a trademark in it is likely to confuse consumers, weaken the strength of the mark, or present the mark in a disreputable light, you may be okay under trademark law.

Where you may have problems is if you’re writing an unauthorized book, say, about a trademark holder and using a lot of their marks in the process: for example, if you’re writing about a sports team and using their logos and marks in that context. That kind of use may suggest sponsorship or affiliation with the trademark holder and may require permission.

Of course, trademark law, like copyright law, has to be balanced against First Amendment concerns. Courts have grappled over the years with cases involving unauthorized posters, coffee mugs, calendars etc. incorporating other people’s trademarks. The result is that the law can be pretty uncertain and unpredictable in these kinds of cases and, if you’re worried about the use of a photograph that includes someone else’s trademark, you might consider removing the trademark if you can (e.g. photo-shopping or cutting it out of the image), or finding another photograph that doesn’t include the mark. Of course, you could also seek the trademark holder’s permission to use the mark. As with copyright holders, some trademark holders may not mind if you use their mark, or they may simply want attribution or maybe a disclaimer saying you’re not actually affiliated with them.

The Creative Commons

I mentioned Shutterstock.com when I talked earlier about sources of photographic images that have licensing terms attached. These services are useful when you don’t need a specific photo, but rather simply an image of a [fill in the blank]; e.g. a leaping deer. Stock photo services provide access to large volumes of photographic imagery some of which is free for you to use and some of which requires payment and/or attribution. Using these services, where you can, will often give you peace of mind that you actually have the permissions you need to use the work. Of course this is not foolproof and it’s possible that a photograph on one of these websites might inadvertently infringe someone else’s intellectual property rights, but as a general rule most of the photographs on these websites should have been carefully vetted.

Be aware that even free photographs on these sites may come with license terms attached that may restrict what you do with the image: for example, you may not be allowed to make commercial use (e.g. including a photo in a commercial published book or on a marketing website) without paying. It’s important to read the license terms carefully before you download the photograph.

Permissions issues for photographs, unfortunately, are one of those little minefields in intellectual property law where simple questions often lead to complex and confusing answers. If you’re publishing with a traditional press, they may be able to help you obtain permissions when you need them, or at least point you in the direction of a reputable permissions editor. If you’re self-publishing, you take on these risks and obligations yourself, so it’s worth being aware of the basics as to how photographic permissions work in practice. After all, an ounce of prevention can be worth a pound of cure.

Jacqui will be presenting her webinar, Legal Issues for Authors, on October 26.

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BIO:Jacqueline LiptonJacqueline Lipton, a law professor and fiction author with expertise in intellectual property law and digital information law. She holds a Ph.D. in intellectual property law from Cambridge University as well as an M.F.A. in Fiction Writing from Vermont College of Fine Arts.

Jacqui Lipton (writing fiction as K.C. Maguire), Authography LL.C. – the Art of Authorship. Author of INSIDE THE PALISADE (winner of the 2016 Purple Dragonfly Award for Sci-fi and Fantasy); RETHINKING CYBERLAW (2015)

Author page: jdlipton.com

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RELEASE:

Inside the PalisadeINSIDE THE PALISADE

Omega has grown up surrounded by women – literally. Inside the palisade, women fall in love, marry and raise daughters, relying on an artificial insemination process known as the Procedure. But something goes horribly wrong. One day, Omega comes face to face with a mythical monster – a man – within the society’s walls. Men had been eradicated long ago to protect women from the threat of violence. But this boy is not what Omega has been led to believe. And he needs her help. She soon finds herself embroiled in a manhunt headed by a vigilante Protector, Commander Theta. When she falls into Theta’s clutches, Omega realizes that there’s more to the banishment of men, and to her own past, than she’s ever known. Ultimately, she is forced to make a choice between betraying the lost boy and betraying her society, a decision complicated by the realization that she has more in common with him than she cares to admit, and the fact that she is developing feelings for him.

Available at Amazon.comLodestone Books, and Foyles.

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Jacqui has published flash pieces and short stories both under her own name and under the pen-name K C Maguire. Her debut novel, Inside the Palisade, ...