More and more we are using images to enhance text-based documents, annual reports, Web sites and blogs. As a universal rule, most images are protected by copyright laws around the world and permission is required to use the image as is, or to adapt it. Let’s look at some of the specifics surrounding this general rule.
Mona Lisa in Lego, Legoland Hotel, Denmark
U.S. Copyright Act
Images may be described in various manners. Under the U.S. Copyright Act, images of various sorts are called “pictorial, graphic, and sculptural works”. These works are defined to “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” So illustrations, photographs, charts and the like, are all protected by copyright.
The full range of rights attach to owners of these works. The owner of copyright has the exclusive rights to do and to authorize the reproduction of the images, prepare new works based on the original works, distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending; and to display the works in public.
Using Book Covers
A common occurrence in libraries is using the images of book covers in catalogues and bibliographies. Is it permissible to scan the cover of a book for these and other similar purposes? How about saving a copy of the cover from the publisher’s Web site? Scanning an image/book cover is a reproduction of a work as is copying that image/cover from a Web site. Would this be considered fair use? As fair use is an analysis based upon the circumstances in each particular case, you would have to analyze your own situations of using book covers and determine whether each use would qualify under the four fair use factors. Many organizations are comfortable applying fair use whereas others want to be 100% sure that their uses are within the law. If you fit in this latter category, approach the book publisher and see whether they own the copyright in the cover art or whether you have to contact the creator directly.
Images on Blogs
Does the use of an image on your blog require permission? Certainly, if the image is part of the design of your blog and/or repetitively used or adapted for your use, you will need permission to use the image. If the image is part of a particular posting in a blog, you will need to apply the fair use factors and determine on a case-by-case basis whether your use requires permission.
Course Materials and Learning Management Systems such as Blackboard
Learning material is often enhanced by the use of images. In a corporate setting, the application of fair use to using images in course materials (especially repeated use of those materials) would be less acceptable, whereas the one time/one semester use of an image in a university course may more likely be considered fair use.
Do You Always Need to Obtain Permission?
Those familiar with fair use know that it is always up to a court of law to determine its applicability in any one situation. As such if you need reassurance or are in doubt, it is always best to obtain permission. There are a few circumstances when you do not need permission. If the image you are using is in the public domain, a U.S. federal government image (though not all government works are in the public domain), or the copyright owner has clearly (and reliably) stated that you may freely use the image without obtaining permission.
Additional Rights
To complicate matters, in the U.S., the creator of a work of visual art has additional rights set out in the Copyright Act. These are called moral rights and allow an artist to have his name on his work and to prevent modifications that may be prejudicial to the artist’s reputation or honor. A work of visual art is: “a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, and “a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” This does not include a “poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication”, or any work for hire (i.e., work made in the course of employment duties.)
The moral rights come into play when you change a photograph from color to black and white, or you manipulate a digital drawing, or omit the artist’s name from a print or drawing. Under the definition of work of visual art in the U.S., few works used in libraries or in corporate settings would have authors who have moral rights. However, in most countries outside the U.S., authors of all kinds of works from photographs to drawings to business documents to computer software all enjoy moral rights. Thus, when using images in other countries or on Web sites or blogs that are accessible around the world, you should respect the moral rights of attribution and integrity.
Aids
The Image Collection Manager’s Checklist for Fair Use of Images at https://www.cu.edu/digitallibrary/images/checklist.pdf may assist you in applying fair use to the use of images. Also helpful is The Fair Use Checklist from Columbia University Libraries through its Copyright Advisory Office at http://copyright.columbia.edu/fair-use-checklist.
Read more about copyright in The Copyright & New Media Law Newsletter.
Hi Nick, only you or a judge in a court can make a fair use determination. Go through the 4 fair use factors and see what you decide.
Hi Lisa, you are reproducing and adapting images so you do need permission to do so.
Hi Bebert, you are likely safe if there’s no confusion as to the origin of the logos/brand names, etc. As for copyright in the signs, you may have a fair use defense.
Hi Lesley,
I am making a video for an associate, who is using it to educate friends, family and colleagues on his contributions to the advertising industry. Since there is a good chance he will be posting it online, I am wondering if it would be in fair use to use the following:
–Historical photographs
–Still images from a motion picture
–Corporate logos (Nike, Chrysler, etc)
–Government logos (NASA)
Thank you!
Nick
Hi there,
I’m an amateur graphic designer, and am in year 12 at the moment, currently photo-manipulating for recreation and school work. But I would like to start doing official album art designs for local bands that need them, I use Photoshop to take existing images from the internet and manipulate them into my own creation, containing many different images which form an entirely new picture. I am struggling to find information on whether I can do this without getting permission from the original sources/artists.
Basically what I want to know is, am I allowed to photomanipulate without getting permission for every single image contribution, if I state somewhere in the album production information that I don’t own the rights to any of the images in this manipulation, only the overall album cover???
Any answers and information much appreciated, thanks.
I have created a drawing of a retail area in my neighborhood. The artwork includes some big name retailer signs and logos. If I sell prints of this artwork, do I need to be concerned with copyright at all?
Hi there,
just stumbled across this whilst looking for something else…
As a photographer and picture framer myself, i can see the plus and minus in this copyright issue. Where will it end? It will soon be illegal to photograph anything!!. I remember the furor with ‘The Kissing Couple’ in Paris, the Cartier Bresson image, someone thought it was their mother or something!!!
I would agree with the fact that ‘fair use’ and also ‘common sense’ should prevail in all things in life. My belief is always ask before you use any image its common courtesy which is missing from the majority of our society today.
If someone approached me to use an image for non-profit, i would agree on the basis i was fully credited for the image, with links and all sorts, after all its good free advertising!!
Rant over…!!
Hi Jeremy, cover art is like any other use of a copyright work. If you can take a photo without permission, then you can use it the photo where you like. Be cautious however with releases for people in photos. You can take photos of nature etc without permission. Generally, you can take photos of public buildings but if it’s famous there may be trademarks and other rights involved depending on how you use that image – that’s a bit trickier.
Hi Mark, one can sell the prints without selling the copyright in them. However, by selling the prints or owning prints, one does not have the right to reproduce the prints.
Lesley, thank you for your response to my question on Tues 19 Feb 2013 at 23:32 regarding slides and prints I purchased from an estate sale. The discussion begs the question of then, how is an estate sale company allowed to sell the photographic slides and how are antique shops allowed to sell photographic prints in their booths without copyright which I assume most of them do not have? Thanks!
I’m a fiction writer and trying to figure out the ins and outs of cover art. If I take a photo, do I have the right to use it as cover art? Does the answer change if the picture is of a castle or something named compared to a tree or random nature shot without it being somewhere famous like the Grand Canyon?
Hi Chris, if you are a self-employed photographer, then you will continue to own your photographs unless you assign them in a written contract to someone else. That being said, best to have an agreement with the producer clearly stating that you own the photographs and will continue to do so and that they producer only has permission to use the photographs in the manner you agree to.
Hello Lesley
I have been asked to submit some original photo images for possible inclusion in a documentary video that will get international viewing. What copyright measures do I need to put in place with the producer/director so that I retain ownership of the images. Also do I need a contract of some sort?
Many thanks
Hi Catherine, if the two older photographs are still protected by copyright, you do permission to photograph them and include them in your book cover.
Hi, I would like to use a photo that I took myself to use as a cover image for my forthcoming book. My concern is that the photograph is of two older photographs outside in a park. Do I need authorization from whoever holds copyright over the two older photographs? Thanks,
Hi Mark, I assume that you only have the actual physical slides and not the copyright in the slides. So you ask the right questions! How old are the slides? Are they still protected by copyright? Are you able to find the copyright owners (even if you cannot, you are still obligated to try and not permitted to use the slides without permission.)
Hi Dee male, if you are reproducing the images in any manner, then you may be using a right within the copyright law and may need to obtain permission. Adapting a copyright protected work may also require permission from the copyright owner.
Faith, most images found online are protected by copyright. Assume that all images are protected and that you need permission unless you determine otherwise.
I have purchased numersous containers of photographic slides from a local estate sale company. It is legal for me to display scans of these images on my website? Is it legal to restore and/or enhance the quality of the scanned image? Is it legal to sell the scanned images? Some slides were purchased from the estates of deceased persons, others I was not aware of the circumstances. Last of all, some of the purchases are prints not slides and so I have similar questions. Help would be greatly appreciated. Thanks!
I am thinking of starting a new business doing children’s party bags I was looking at “themeing” them so for instance getting a picture off google of say peppa pig or minnie mouse and printing it out and putting it on the front of a paper bag with a message saying happy birthday to sell with sweets in, would this be breaking any laws as I don’t understand if this would be classed as any copyright as I see on eBay a lot of people sell these? Any help would be appreciated
I help prepare case studies/poster presentations for those doing research. Can an image/photo be used from internet “images” on a poster presentation, without permission but only citing the article from which is was taken.
Thank you
Hi Debra, is the painting or sculpture protected by copyright? If so, you need permission to reproduce it in any manner (unless perhaps you could determine that it falls within fair use under the U.S. Copyright Act – assuming you are in the U.S.)
Hi Graham, contact the animator or his agent to obtain permission.
Hi Jamie, you need permission to adapt and manipulate an image (unless you are certain that the image is not protected by copyright.) Always assume that online images are protected by copyright until you investigate further.
Hi Kaye, enlarging a work may be adapting it and you may also change the “quality” of the work and potentially harm the rights of the creator of the postcards. You need to determine if the postcards are still protected by copyright. And also depending on what country you are in, you may want to read up on moral rights (part of copyright law.)
Hi William, sounds like you are on the right track. What is “substantially similar” is a question of fact so I cannot answer for you. Only a judge could apply your particular circumstances to the facts at hand. Reading similar cases may assist you in making this judgment call.
May I ask a question. If I take a photo of a painting in a gallery, or a sculpture etc. (assuming that I have been allowed to take the photo) can I publish the photo I took online without permission from the gallery/artist/owner. It would be a non-profit use so not for a book or any other commercial use. Thanks.
Hi Karen, reproducing an image even reproducing it with your own hand still requires permission – unless you are just inspired rather than reproducing the underlying image.
Hi.
I’m a poet from London with. A first collection due next year. I’m looking to get an image form the animator Jan Svenkmajer as a cover image but am unsure as how to proceed. Could you advise? Many thanks.
Hi Colton, unless you provide permission no one may use your photos without your permission. Start by reviewing your legal options in the country in which you live. And you can certainly ask for your photos to be removed and not uses in any manner without your permission – you do not need to retain a lawyer to do so. A lawyer at some point can provide you with various options to secure your rights.
Hi Karen, unless your use falls within fair use, you need permission. Just because the author has not replied does not provide you with that permission.
If I find an image(no words) that is being used on a website and use it to manipulate in photoshop changing colors and style to create a new image. Do I still need to obtain permission?
Thanks
I have hundreds of post cards from 1909-1960 mainly depicting small-town streets, historic buildings,etc. Is it legal to enlarge these to 11″x17″ and sell the prints for $5.00 each?
Hi,
Is it OK to scan a graphic image that you find interesting and then manipulate it to create a new work that is definitely not “substantially similar”? The law seems to prohibit “copying” and scanning is certainly making a copy. However, I’ve read that even if “copying” has been proven, if the final work is not considered “substantially similar”, then the copying in and of itself is NOT an infringement. Please clarify.
Thanks.