Thursday, 30 June 2011

Images & Copyright Part 1: Photographs

A little while ago I crowd-sourced Twitter for copyright questions about images. These questions helped inform a talk that I gave to the Art Libraries Society (ARLIS) on images and copyright, looking at the issues are faced by information professionals dealing with visual resources in the digital age.

What I found most interesting about the questions I received was that most of them concerned photographs. Fascinating, but not surprising, as photographs are a very unique type of artistic work and as with audiovisual works can include other types of copyright work. Fortunately, I’m very interested in photographers’ rights and deliver talks regularly to photography societies. Questions about photographs usually fall into two distinct categories: the actual taking of a photograph, and the subsequent use of a photograph. I will address both.

Photographing people (individuals and groups)

@chr1staylor questioned whether consent is required from people when taking photographs. But in order to answer this question, it must be placed in context; you have to look at the circumstances surrounding the taking of the photo. There is no law which prevents the actual taking of a photo, with the exception of s.41 of the Criminal Justice Act which prohibits the taking of photos in and around court. However, you must respect people’s privacy: Article 8 of the Human Rights Act says that everyone has the right to respect for his private and family life, his home and his correspondence. Using a telephoto lens to snap someone through their bedroom window, for example, would violate their privacy right. It is not illegal or unlawful to take pictures of people in public, but crucially it is what you do with the photograph which is the real issue.

Publicity or image rights are not codified in UK law but are bound up in intellectual property and media law. Jane Coyle’s article in lawdit offers a concise exploration of the subject. When it comes to use in advertising, the Advertising Standards Authority states that:

Advertisers should seek written permission from those whose image will be used in any promotional campaign especially in respect of commercial activity and endorsement.

You must get consent from any individual whose photograph you want to use commercially (and this includes websites which are seen as advertising and marketing tools). Celebrities often have a strong sense of the rights to their own image (some even take it to the extreme). Using a photograph of a celebrity that you snapped at a red carpet event to endorse your latest brand will most likely land you a lawsuit (unless they had agreed to promote your brand). Photographers taking pictures of models will need signed written consent in order to licence the photos to stock image galleries.

The following situations do not require consent: taking photographs of people or individuals at public events for non-commercial purposes (including uploading the photos to social networks) or for the purposes of news reporting. A question from @grantreilly asked whether consent would be required when taking photographs of people playing sport on university fields and then uploading those photos to Facebook; the short answer is no.

Photographing things

In the UK, some photography could get you into trouble with the relevant applicable law. These are predominantly photographing sensitive locations (e.g. military bases), protected species of wildlife at their nesting places, bank notes, logos and trademarks, and artwork which is still in copyright and isn’t permanently situated in a public place.

In other circumstances, it is usually the purpose for which the photo is intended to be used which is the crucial element. If a copyright work is the main focus of the photo, you will need permission from the copyright holder to use the image commercially. Bear in mind that some iconic buildings may be brands in their own right and contain intellectual property rights (for example, the Sears Tower).
@glynmoody pointed me towards a blog containing questions on photography; I’ll include a couple of them here:

* Can I take a picture of a model in a designer dress and sell or give away copies of the picture with only the model’s permission? – yes; there is some discrepancy over whether clothing attracts sufficient protection under copyright as a work of artistic craftsmanship. It would be wise not to use this photograph for any type of advertising purpose.

* Can I take a picture of a room papered with designer wallpaper and sell or give away copies of the picture? – as long as the wallpaper is not the focus of the photograph (i.e. a close up shot of the wallpaper), then yes this would be ok.

You don’t have to obtain specific permission to take photographs of copyright works and use them to accompany news reports, reviews and critiques, or to advertise their sale. Nor do you have to obtain permission where the protected item is not the focus of the picture or where the photograph is for your own private use. Logos are always tricky because they can often be covered by other intellectual property rights such as trade marks or design rights.
@richardberryuk queried whether a logo appearing in an image should be blurred out; if the logo is incidentally included in the photograph, this would be unnecessary – deliberate inclusion, on the other hand, may be seen as infringement.

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