Technology and Business Law Blog

Copyright On Photographs

There has been a lot of buzz about the Obama image titled ‘Hope ‘ designed by Shepard Fairey, a Los-Angeles based street artist based on a photograph taken by Manny Garcia while working on a contract basis  for the Associated Press. So since it was taken by the photographer while being employed by someone, it will be considered a work for hire and the employer owns the copyright to the photograph, unless the photographer specifically retained the copyrights in writing or the employed assigned the rights over to the photographer.

In this case Garcia had no problem with Fairey using the photograph but the copyright owner, Associated Press did and so sued the artist for copyright infringement. The artist is being presented by Anthony Falzone, an attorney and the executive director of the Fair Use Project at Stanford University. Falzone claims that the use will fall under fair use. A similar issue was decided in the Blanch v. Koons case, in which part of a plaintiff’s photograph, was used by the defendant Koons where he had scanned in and modified by removing the background and changing the orientation and coloring. The court held that it was fair use of the photograph since it was ‘transformative’. The Center for Internet and Society at Stanford University has a peice on this ruling and can be read here.

Here is a small treatise on copyrights of photographs.

A copyright is a protection given to a creator of creative works, say a writer, musician or photographer who is credited as the creative party and allows the creator to profit from their work. It’s a set of rights granting to the author or copyright owner, the privilege of being the only one allowed to use that material. The owner of the copyright has the exclusive rights to sell, resell or produce the copyrighted material any way deemed fit.

A photographer owns the copyright to the photos that he or she takes, unless the copyrights were transferred to someone else or if the work was commissioned, then it would be a work for hire and the copyright belongs to the person who hired the photographer’s services. Making images of a photograph and distributing them implicates the copyright holder’s exclusive rights of reproduction, public display and public distribution.

Giving credit to the photographer is not a substitute for getting permission. A good practice would be to get permission and also give credit to the photographer.

As mentioned earlier the copyright holder has the right to reproduce the photos and that would include posting them on another website or homepage. The copyright holder also has the right to alter or change the photo/image and create a derivative work. Even if the copyright holder has given permission to use the image it does the give the user the right to change or alter the image by adding colors, or by other means. If the photo is licensed under a Creative Commons license then it may allow the user to change the image without permission form the copyright holder who would in this case normally be the photographer.

Fair Use

Under the Copyright Act, fair use of a copyrighted work, would be for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research and such uses are not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a 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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Using the four factor test “fair use” is decided on a case by case basis. When it comes to using photographs without permission then it could be considered to be fair use if the use is for education, research, news reporting, criticism, in public interest or if the photos are transformative or used as parody.

Even if a small part or a portion of the photo is used it could still be considered infringing if that part is substantial. If the part taken is the heart of the work. It will vary on a case to case basis with no set rule as to how much is OK.

The presumption is that if the use is minimal and is not substantial and then it would be considered to be fair use as long as it is used for the purposes mentioned above.

In the case of Perfect 10 v. Google/ Amazon, it was ruled that thumbnail-sized photos (such as those used in Google Image Search results) was not infringing, because under the fair-use criteria, the small photo does not have an effect on the potential market or value of the copyrighted work. Similar result was reached in the case of Kelly v. Arriba Soft Corporation and the court held that defendants’’ use of plaintiff’s images as thumbnails in its search engine is a fair use.

In terms of display of a copyrighted photograph on the web, one would have to use all of the four factors of fair use and look into the nature of the photos, whether the photos are being used for a commercial or for a nonprofit educational purpose, the amount and substantiality of the portion used. If the images are used for commercial purposes then it would be hard to justify fair use unless the work is considered trans formative.

In Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., Tiffany Design created a digitally altered photographic image of the Las Vegas strip. Reno-Tahoe Specialty produced a composite image of Las Vegas and included images of at least six buildings scanned and inserted from Tiffany’s work. The use of the images and the developments of the composite picture were to create a commercial product. The court held that Scanning and manipulating a highly creative work may be beyond the limits of fair use, especially if the ultimate purpose is to include elements of the original work in a commercial product.

If one is caught using copyrighted photos on their website without permission then the copyright holder can send a takedown notice under the DMCA provision of the Copyright Act, stating that the infringer photo needs to be removed from the website.


February 27, 2009 Posted by | Copyright Infringement | | 1 Comment