Copyright:
Permission

“How do I get permission to use somebody else’s work? You can ask for it. If you know who the copyright owner is, you may contact the owner directly. If you are not certain about the ownership …, you may … conduct a search of [the U.S. Copyright Office’s] records ….”
U.S. Copyright Office, FAQ

Introduction

If you use is commercial, and the subject of your photo has rights, then you’ll need to get permission to publish or license your photo. Getting permission involves finding who owns the appropriate rights and asking them for an OK.

Subject of a Photo
SubjectRightsPermission
ArchitectureCopyrightProperty release
ArtworkCopyrightProperty release
Logos & BrandsTrademarkPermission unlikely
PeoplePublicityModel release
ProductsTrade dressPermission unlikely
PropertyProperty rightsProperty release

Which law do I need permission for?

“[Copyright] restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit.”
>Justice Holmes, White-Smith Music v. Apollo Co., 1908.

Without law, we are lawless. As in the Wild West or “Lord of the Flies,” we can do whatever we want, and so can other people. Only with law are there things that we can’t do. So, to the question: “Do I need permission to … ?” the answer is: “What law says you need to?”

The hunt is on, therefore, to find the laws pertaining to your situation. Let’s start the hunt.

Many laws have grown from rights, which are personal freedoms. In the U.S., these freedoms stem from the Constitution with the Bill of Rights amendments. There are five rights pertinent to photographers:

  • Copyright (Article I): Allows artists to make money from art. Prevents other people from using your photos without your permission, but prevents you from photographing other people’s artwork without their permission.
  • Trademark and trade dress rights (Article I): Allows companies to control logos and designs.
  • Free Speech (First Amendment) (Photography Right): Allows you to take photos. Prevents other people from stopping you from taking photographs.
  • Property (Fifth Amendment): Allows property owners to control what happens on their property. Prevents you from taking photos on private property.
  • Personality (Ninth Amendment) (Privacy, Publicity): Allows people to be left alone, and allows models and celebrities to make money from their image. Prevents you from photographing people in private situations, and from using a person’s recognizable image without their permission.

Let’s take a brief look at these rights.

Copyright

If you want to use photograph that someone else took, you may need to get that photographer’s permission. If you are taking a photo that includes another photo, or a painting, or a statue, or any other artwork, you may need to get the artists’s permission. Why? Because artwork can be protected by copyright.

Copyright law contains about 20 sections on limitations and exceptions which allow free use. These can be divided into two categories:

No copyright restrictions

Many works have no copyright protection. These are said to be in the public domain. They include:

  • works before 1923
  • some works before 1977
  • works with no originality
  • facts, ideas, concepts
  • works of the U.S. Government

Most works created after 1976 have copyright protection. To determine if a work has copyright protection, you can search the Copyright Office records online at www.copyright.gov. This is mainly for works made from 1978 onwards; works made prior to that (1891–1978) can be researched at some U.S. libraries with the Catalog of Copyright Entries (CCE). The results are not conclusive.

public domain, originality, copyright search

Some copyright restrictions

Works that have copyright protection can be used without permission in some situations. These include:

  • Fair use — public interest, private, or nonprofit
  • Libraries and archives can make copies for public searches
  • Display and resale of tangible items that were bought

Most commercial uses require permission.

fair use, commercial

Trademark and trade dress

Corporations can restrict the use of their logos and designs to avoid customer confusion as to the origin or affiliation of products. You can show trademarks in their natural state but you can’t infer any affiliation to a trademark’s owner. Companies are required to defend their trademarks in order to keep them, so they are unlikely to give permission for commercial purposes.

trademark

Property

Property laws are mostly state laws. If you are photographing private houses or take photos on private property, you will need a property release.

property

Personality

People have privacy and publicity rights. Publicity laws vary by state depending upon where the person lives. Even dead celebrities can have publicity rights. Recognizable people who are prominent in your photos need a model release.

privacy, publicity

Permission by Subject

Main subjects

  1. Animals
  2. Architecture
  3. Artwork
  4. Books
  5. Brands
  6. Cars
  7. Cartoon characters
  8. College paper
  9. Currency
  10. Electronics
  11. Entrance fees
  12. Events
  13. Facts
  14. Figurines
  15. Houses
  16. Information
  17. Logos
  18. Maps
  19. Models
  20. Nature (Landscapes, Parks)
  21. Paintings
  22. Photos
  23. Photocopying
  24. Portfolio
  25. Products
  26. Property
  27. Public Viewpoint
  28. Street Photography

Amusement Parks

See entrance fees.

Animals

Animals have no privacy or publicity rights. However, if you take a photo at a zoo or at other private property, then there may be property or contract laws to consider, particularly if the location is recognizable. See entrance fees. Also, the background of your photo may contain copyrighted artwork.

Architecture

While architecture from 1978 onwards can have copyright, there is a specific exception for photographers permitting photos from or in a public place.

“Copyright protection subsists … in … architectural works.”
17 USC, §102(a)(8)

“Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”
17 USC, §120(a)

“Some monuments and landmarks are not in the public domain and cannot be uploaded here, depending on their location, the artist, age, and any relevant restrictions. Check our Technical Wiki first, and then do some research online to find out if a particular landmark or monument has restrictions regarding commercial photography. When you do upload an image of a landmark or monument, include as much background information as possible.”
iStockphotos, Legal Requirements.

architecture

Artwork

Virtually all artwork created after 1978, and some artwork created after 1923, are covered by copyright. Most artwork created before 1923 is in the public domain. Artwork in private collections may be covered by property law.

“Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression … [including] pictorial, graphic, and sculptural works.”
17 USC, §102(a)(5)

“Any artwork — main focus or not — for which you are not the artist (creator) cannot appear in an image at iStock unless a property release from the artist (not the current owner) is included. Artwork located on public properties are not exempt from this rule.”
iStockphotos, Legal Requirements.

If you photographing artwork, your work is deemed a derivative work.

artwork, ,derivative work public domain, property law.

Athletes

See events.

Ballets

See events.

Books

“Texts that are more than partially visible are not acceptable. We also cannot accept anything that features elements which would clearly identify a specific publication. Visible artwork and photographs, book titles, newspaper names, logos, names and illustrations all need to removed.”
iStockphotos, Legal Requirements.

“Typeface is not copyrightable, nor is the design, format, or layout of books and other printed material.”
>U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.02(j)

“[T]he arrangement, spacing, or juxtaposition of text matter which is involved in book design falls within the realm of uncopyrightable ideas or concepts.”
— 46 Fed. Reg. 30651, 1981

Brands

“Identifiable packaging, modern toys, and brand-name products cannot be shot as ‘product shots’ (images where they are the main subject) and in some cases cannot appear regardless of the context.”
iStockphotos, Legal Requirements.

Buildings

See architecture.

Cars

Cars

Acceptable:

  • Cars manufactured in 1985 or earlier, as the main focus or not.
  • Cars manufactured after 1985 that are not luxury cars and are not the main focus of the image, representing less than 20% of the image.
  • Cars as the main focus at certain angles or in certain contexts where they are not recognizable.
  • In some cases luxury cars may be acceptable if they play a very minor role in the image, such as traffic shots or street views containing several cars.
  • 3D renders that do not resemble real cars.

Not Acceptable:

  • Visible brand names or logos, regardless of the car’s age or model.
  • Cars manufactured after 1985 as the main focus — no ‘product shots’.
  • Luxury cars of any kind or age.
  • Exotic cars, regardless of context and size.
  • Car lots (dealerships) with several cars of the same model or brand visible.
  • 3D renders based on actual models that fall into the descriptions above.

Source: iStockphotos, Legal Requirements.

“Names, phone numbers, ID numbers, license plates, and any other information which may or may not relate to a company, a person, or a private entity must be removed from your images.”
iStockphotos, Legal Requirements.

Cartoons, cartoon strips, cartoon characters

Cartoon characters can have trademark protection. See artwork.

“The copyright law does not provide for the copyright registration of characters as such. … Occasionally, works incorporate names, titles, or slogans whose utilization is subject to restrictions by other laws. … Some examples of restricted names and characters are: ‘Olympic,’ ‘Olympiad,’ (36 U.S.C. 380): ‘Woodsy Owl’ (18 U.S.C. 711a): and ‘Smokey Bear’ (18 U.S.C. 711).”
>U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.02(l) Characters

Cash

See cash.

Celebrities

See publicity.

Characters

See cartoons.

College paper

If you signed a written contract which gave away your copyrights, or you were a full-time employee, then your employer owns the copyrights to your photos, as work made for hire.

work made for hire

Computers

See electronics.

Concerts

See events.

Currency

“Due to counterfeit concerns we cannot accept images of bank notes where the currency appears flat, shot straight on, and shows more than 30% of the note, with or without borders visible. Series that could be combined to create a complete bill are also not acceptable. Angled, curved, or partially visible flat close ups, with 30% or less of the note showing may be acceptable. Any images of currency, including coins, where the likeness of Queen Elizabeth II is visible, regardless of the country of origin, or the angle, size or context, are not acceptable. This also applies to stamps.”
iStockphotos, Legal Requirements.

Diaries

Letters and Diaries

“[Only] the author … has the right to claim copyright. [T]he mere possession of a diary does not entitle the possessor to claim copyright, regardless of whether the material object was purchased or found.”
>U.S. Copyright Office, Compendium II of Copyright Office Practices, §316.01 Letters and diaries

Electronics

“Screen interfaces are identifiable to their respective manufacturers and must be removed from all images uploaded to iStock.”
iStockphotos, Legal Requirements.

Entrance fees

“Most places that charge entrance fees have restrictions (which may include fees & approval on usage) or prohibit filming and photography on their properties for commercial purposes.”
iStockphotos, Legal Requirements.

Events

“Commercial images of plays, ballets, operas, theatre, concerts, fashion shows, and similar performances may be prohibited or restricted. iStock can only accept generic images of performances of this kind, and requires property releases from the venue owners, the show creator(s) and model releases from the performers.”
iStockphotos, Legal Requirements.

“We do not accept images of professional athletes, or athletes that appear to be professional, from any sporting events, such as games, races, practices, or promotional functions. Professional athletes are very protective of their likeness and the matter of recognizability becomes very important. For instance, individual pro baseball players all have their own particular way of positioning themselves to hit the ball, of running and standing, even of how they wear their uniform. Just because you are not showing a face or number does not mean the athlete is unrecognizable. Models wearing generic clothing playing sports may be acceptable.”
iStockphotos, Legal Requirements.

“Stadiums around the world (including Olympic venues and installations) are all unique and have distinctive features that make them highly recognizable. Images of stadiums (interior or exterior) or other professional sporting venues and events are not acceptable, even with all logos and banners removed. We may accept close-ups of bleachers or generic-looking cropped views if they aren’t specifically identifiable. Teams, leagues and players hold all the rights to images of their events, practices, or other public appearances, all of which are strictly protected. The companies or corporations associated with these venues and events may hold all the rights to commercially licensed images. Please note that there are usually disclaimers on the backs of tickets prohibiting photography and filming.”
iStockphotos, Legal Requirements.

Also see: team uniforms and free speech.

Facts

“A fact or event, as distinguished from the manner in which it is described in a particular work, is not copyrightable.”
>U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.02(d) Facts and events

Originality

Fashion Shows

See events.

FedEx

See photocopying.

Figurines

“Major brands or unique hand-made figurines are not acceptable. Mass-produced figurines may be acceptable in some cases.”
iStockphotos, Legal Requirements.

Fine Art

See artwork.

Gallery

See artwork.

Globes

See artwork.

Homes

See .

Good article

Next page: Architecture

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