More on copy right-very lengthy and not all there;

Legal Pitfalls in Taking or Using Photographs of Copyright Material,
Trademarks and People
Lien Verbauwhede, Consultant, SMEs Division, WIPOi
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 speaken, 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);
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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).iv
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.v
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:
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- 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.”vi
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.
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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
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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. ix
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
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you from taking pictures of that same bridge. However, he has the right to prevent you from
duplicating in any manner his original picture.x
2. 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.
3. 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 c***dren, 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 i