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Avoiding Copyright Infringement When Using Photographs

Copyright protects original works of authorship, including artistic works, such as photographs. According to the Section 106 of the Copyright Act, only the copyright owner has the exclusive rights to reproduce the copyrighted photographs and display them publicly, with this right created as soon as the photographer clicks the shutter on camera. However, there is a delicate balance between the rights of the creator and the public’s interest, and the concept of “fair use” may allow copyrighted works to be used without permission for the benefit of the public. The purpose of such use must be educational, nonprofit, scholarly, reporting, reviewing, or research. However, there are some things that cannot be protected under fair use.

Photos found through stock photo services are sometimes not subject to fair use due to the rights they carry. There are three basic types of stock photos: public domain, royalty-free and rights-managed. Public domain means the image is free for all people to use under any circumstances, since the copyright owner’s exclusive IP rights have expired. Royalty-free, in the photography industry, refers to a copyright license where the user has the right to use the picture without any restrictions based on a one-time payment to the licensor; you don’t need to pay any additional licenses after this one-time purchase. “Rights-managed” refers to a copyright license when purchased by a user that would be provided for the one-time use of the photo as specified by the license. Most stock photos online are royalty-free or rights-managed.

One also cannot just use photographs obtained from various sources that state that they are subject to the Creative Commons Attribution license. Creative Common licenses confer the right to use an image under certain circumstance; six licenses are available and all refer to “Creative Commons By Attribution”, short-handed as “CC-BY” with variables added. All use of such works must include an attribution to the copyright owners in the manners that are prescribed by them. If just Creative Commons By Attribution applies, it means the work can be tweaked, remixed, and built upon, and it is even open for commercial sharing. If the copyright owners don’t want the creation changed or commercialized, they specify the designations, like “CC-BY-NC (no change)”. One must make sure that the images one wants to use commercially are not restricted for commercial use. Moreover, the owner may change the license terms after the image is used, which may that trigger a request for removal. It is therefore important to know that whether a Creative Commons License is non-revocable before using the image.

Some other comments on using photographs from an intellectual property perspective:

  • Most works first published after March 1, 1989 do not require that a copyright notice (e.g., ©2016 John Doe) being used to establish protection; they are already protected by copyright.
  • Different uses come with different obligations. Unless the photo is in the public domain or you are the copyright holder, you have to at least consider any use(s) granted by the copyright holder or license. A copyright holder may be agreeable to certain uses but not to others.
  • Changing a copyrighted photo to make it look different than the original does not relieve you from potential liability.
  • Using public domain photos can avoid copyright problems. With public domain images you’re free to use them in any way and in most cases you don’t have to provide attribution. You should however consider potential right of publicity or privacy issues that could come with the unauthorized use of a person’s identity, right of publicity laws vary from state to state, for example, Illinois Right of Publicity Art (IRPA) “prohibits the use of an individual’s identity for commercial purpose without his written consent”, that means only uses qualified as “editorial”, like a subject of newsworthy or social interest, do not require consent of the subject depicted, or a model release, otherwise it would be a violation of right of publicity.
  • One way to likely avoid copyright infringement is to link to a website that legally posts a third party’s work instead of just using the work directly. While doing that, you can further acknowledge the owner of the third-party work in your piece.
  • Fair use for online photographs exists, but it can be complicated. Legal fair use basically means you have a defense to a copyright infringement claim on someone else’s work. Before making unauthorized use, however, you should consider whether the recognized fair use factors apply to you:
  1. The propose and character of the use, including whether the use is of a commercial nature of is for nonprofit educational purposes, and whether you have “transformed” it;
  2. The nature of the copyrighted work, including whether it is creative or more factual;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

All who dedicate themselves to arts deserve the respect of those who wish to benefit from their artwork, which is why we need to take steps when intending to use another’s works found online.

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