This section addresses the popular question: Can I use this photo for … ? The answer is generally yes, if you own the copyright or the photo is in the public domain, and the subject has no rights; or you have fair use. Otherwise, you’ll need to ask permission.
- Public Domain
- Fair Use
“Can I Use This Photo?”
If you took the photo, or the photo is not protected by copyright, or you clearly have “fair use,” then, generally, yes, you can use it (unless the underlying subject has rights). Otherwise, you need permission from the copyright owner to use the photo, or you risk being sued.
Let’s look at some basic cases:
“Can I Use This Photo?”
|You took the photo …||… for yourself|
|If the subject does not affect the rights of others, or your use is clearly fair use|
|For commercial purposes, you need permission for recognizable people, products, logos, private property and artwork|
|… as a full-time employee|
|Your employer owns the copyright as work made for hire. Private, non-commercial fair use is probably OK.|
|Someone else took the photo, and the photo …||… is NOT protected by copyright|
|The photo is free to use — it’s “in the public domain”|
|… is protected by copyright|
|If your use is clearly fair use|
|For commercial purposes, you need permission from the photographer|
|This is general, some restrictions may apply. The subject of the photo may have protection, see permission. This information is for educational purposes only and does not constitute legal advice.|
Copyright is a form of legal protection for artistic works — including photos — that gives artists the exclusive right to copy, adapt, publish and license their work for financial benefit. In the U.S., the federal Copyright Act is Title 17 of the U.S. Code which awards copyright automatically upon creation to the author of the work (in the case of photos, the person who pressed the shutter-release).
If you take a photo as an independent photographer, then you own the copyright, unless you sign away the copyright in a written contract. If you take a photo as a full-time employee, then your employer owns the copyright, as work made for hire.
Photos and other artworks that are not protected by copyright are available for anyone to use freely, and are said to be “in the public domain.” There are several ways that works may enter the public domain:
- Never had copyright
- Copyright has expired
- Not eligible for copyright
- Copyright has been renounced or forfeited
In the U.S., all works before 1923, and all works before 1977 that were not registered, are in the public domain. All works after 1977 automatically have copyright and are thus not in the public domain (unless they were not eligible for copyright or the copyrights were lost).
Photos that have copyright can still be used without permission from the photographer for purposes considered to be “fair use.” This is generally for matters that are primarily in the public interest or are not potentially commercial.
In an edited version of the U.S. law:
“… fair use … is not an infringement of copyright … [and is] for purposes such … as news reporting, teaching, … or research … [or when there is negligible] effect of the use upon the potential market for or value of the copyrighted work.”
— 17 USC §107
Thus, much to the chagrin of some photographers, copyright is not absolute and does not prevent private, non-commercial copying.
In addition to fair use (§107), there are other limitations to copyright, including for U.S. Government works (§105, an exception), libraries and archives (§108), resale and display of items (§109), and display for teaching (§110).
Many decisions about using a photo require considering if the use is “commercial.” The copyright statute contrasts “commercial nature” with “nonprofit educational purposes” and allows court decisions to be determined upon “the effect of the use upon the potential market for or value of the copyrighted work.” iStockphoto defines “commercial advertising purposes” as “… any kind of advertising or promotional material [or sponsored material] for any ‘advertorial’ purposes …”
Besides the actual photo, the subject of the photo may have rights. One example is a photo of a painting, which can be a copyrighted artwork. This situation is called a derivative work. Another example is a photo of a person, such as a model, who has publicity rights over their image.
|Subject of a Photo|
|Logos & Brands||Trademark||Permission unlikely|
|Products||Trade dress||Permission unlikely|
|Property||Property rights||Property release|
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.
If you want to use, for commercial purposes, a photo that someone else took, then you’ll need to get permission from the photographer or their agent (such as a microstock photo agency). They may grant you a non-exclusive license in exchange for, guess what, money.