Can I Use This Photo?
DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
“I took a photograph while (at a workshop, at school, working, traveling). Can I use it?”
“I found an old photo, can I sell it?”
“Is it legal to copy a photograph that was sent to me in an email?”
“Can I use an old photo in my artwork?”
Whether or not you can use a photo depends on three things: the photographer, the subject, and the use.
If you took the photo, the subject is something benign, and You’ll be using the photo privately, then you’re fine. If not, then take this simple, three-step test.
1. Did you take the photo?
- Yes. If you pushed the shutter-release, then the photo is yours, as copyright is automatically assigned to the creator. Proceed to question 2.(Note: If you were hired, paid or employed to take the photo, you may have signed a contract relinquishing the copyright to your employer, in which case proceed to the “no” answer).
- No. Then you’re limited to private use, unless the photographer has provided express permission (a written license detailing how you can use it) or the photograph is in the public domain (e.g. taken before 1928 in the U.S.). This applies even if there’s no © symbol or contact information. If you own a print of a photograph (such as a postcard or poster), you can sell the actual print (the tangible item) but you can’t sell copies of the photograph.
2. Is possession of the photo itself legal?
- Yes. It’s a silly question really, I just have to cover it. Proceed to question 3.
- No. If the photograph was stolen or the subject itself is illegal to possess, then you’re at the wrong Web site. Game over.
3. Does the photo NOT include as a significant element a recognizable: person, celebrity, artwork, logo, trademark, cartoon character, professional sporting event, or view from a paid entrance?
- Yes. Congratulations, you have full reasonable use of the photo. Yes, you can use it, publish it and sell it.
- No. Then you’re limited to private and “fair use” (generally educational, newsworthy but not money-making or malicious use). So you could probably post the photo on your Web site (as long as the subject is not private or embarassing, and the display is not false or misleading). But you can’t sell it as stock photography or use it on the cover of a product ("commercial use”). To do that, you’d need a “release,” a written contract with the property owner. In the case of people, this is called a “model release.”
Relevant Laws
If you failed at question 3, here are the laws that apply:
Relevant Laws | |
| People, including celebrities | Privacy, Publicity |
| Artwork (inc. photos, paintings,murals, statues) | Copyright |
| Logo | Trademark |
| Distinctive cartoon character | Copyright, Trademark |
| Professional sporting event | Privacy, Copyright, contract, and Trespassing |
| Private view (paid admission) | Privacy, Trespassing |
| Buildings | Trademarkunfair-competition |
| Text | Copyright, Trademark |
Comments
Reply by Lisa Leikam
August 10, 2015
If I took a picture of a musician at a concert and want to use it in a book I wrote do I need permission to use it and if so how do I go about getting permission? Hard to find a email directly to musician. Thank you!
Reply by Andrew Hudson, PhotoSecrets
January 13, 2016
Hi Lisa,
You may be OK. The inside of a book is often considered “editorial” (as opposed to “commercial”), particularly if it is non-fiction, and this may be fair use.
If you were using the photo on a commercial project (such as on a product for sale), then you would be advised to get permission from recognizable people (publicity right), and the concert venue (property right).
Musicians often have websites with contact info, and may have a link to an agent or management company.
Reply by Anonymous
February 15, 2015
You advice on this topic is helpful. Need opinions on the use of images from online maps (these images are being used on commercial pages on a website with affiliate banners). The terms of use stated that using images you must include credit to the source.
Reply by Andrew Hudson, PhotoSecrets
March 6, 2015
If a publisher requires a credit but none is given, then it is up to the publisher to decide what to do. They could choose to file a copyright claim, or ban the website from using map images, or whatever. Maps from Google Maps include a credit within the map itself.
Reply by Marianna Sheridan
March 6, 2014
Hi. I am building a photo archive for a NYC designer. I have found many vintage photos/prints that do not include any information on the back. What is the best way to determine if they can be used on our website, for social media purposes or in magazine? I don’t know where to start! Thanks!
M.S.
Reply by Andrew Hudson, PhotoSecrets
March 20, 2014
VINTAGE PHOTOS
Hi Marianna,
Yes, this is tricky. The subject is called “orphan work” and is the subject of much debate, as legally users have to get permission but there’s no way to do that.
For a photo archive or website, you could decide to use the images with a notation about the photographer status and approximate year the photo was taken. If the use is not commercial and you show respect, this might be considered fair use. A magazine is more commercial so stick with approved photos for that.
For more info, see Copyright & Old Photos.
Andrew
Reply by Terry Daffin
March 1, 2014
Great information and I understand the use of photos to sell a product but what about in the case of using a photo on my photography business web site. I shoot weddings, portraits and events. Many of the events I shoot involve celebrities. Can I use the photos on my website as part of my event gallery/portfolio?
Reply by Andrew Hudson, PhotoSecrets
March 20, 2014
Hi Terry,
You could probably use those images on your web site, just tread carefully. Ensure that the web site illustrates your work, and does not suggest endorsement or promotion by the celebrities.
Andrew
Reply by Judy
November 6, 2013
Brillant response! Your opinion on this subject area is quite complete. It would have taken me months to find these answers. You are a life saver and yes I will proceed in inquring to the author of the book, my concerns.
Judy
Reply by Fvosbein
November 5, 2013
Wow! What a great your response. Very informatative! Can I add to the past question? At the time I donated these photos, my famous dead relative’s house was being used for tours for the public, ran by the Historical Society. The photos were intended to enhance a visual for the public. It was not intended for an employee to use these photos on the cover of her book for her own personal book. Further more, not for her to use these photos on the Internet, to promote her book. I have the originals of these photos, what if my heirs want to use these photos in the future?
Reply by Andrew Hudson, PhotoSecrets
November 6, 2013
Hi,
To the question "what if my heirs want to use these photos in the future?" the answer is "they can". The photo appearing on a book cover does not inhibit your use, or use by your heirs.
As for "the photos were intended to enhance a visual for the public", that is a good point you could make to the book’s author. It would help if there photos had been donated along with a letter stating the intention (or terms) of the donation. But either way, it was still the responsibility of the book’s publisher to ascertain the copyright status and authorization of the cover photo.
Here is a pertinent quote from the U.S. Library of Congress:
“In all cases, it is the researcher’s obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library’s collections.“
Library of Congress: Copyright of Prints and Photographs
Reply by Fvosbein
November 5, 2013
I have some old photographs of my relative that I donated a copy to Historical Society. An employee wrote a book about my relative and has my relative’s photo on the cover page on the book. Also on a promotion flyer. Do I have any legal rights to this photo?
Reply by Andrew Hudson, PhotoSecrets
November 5, 2013
Hi,
Good question. I have just added a page about Copyright and Family Photos.
Family photos taken after 1893 have copyright protection for the life of the photographer plus 70 years. When the photographer is not known, the protection is for 120 years from date of creation. Photos taken before 1893 have no copyright protection and are in the public domain. (This is under U.S. law and assumes that photos prior to 1978 were not published.)
If you took the photos, or if you are an heir of the photographer, and the photograph was taken after 1873 in the U.S., then you probably have copyright. In that case, you could protest the use of the photo, possibly with a cease-and-desist letter.
Note that the fact that you donated the photo to the Historical Society could be construed as implicit authorization for the Society to use the photo in a manner consistent with their mission, which this book likely is. But if the employee is publishing the book independent of the Society, then that is less likely to apply.
An actual court case may be difficult, since you may have to document who took the photo and how you inherited the copyright. Also, the person using the photo would likely claim fair use, possibly using the following reasoning:
1) The book is about your relative, so a photo of that person is reasonable;
2) the Historical Society (or the employee) is likely not making much of a profit on the book;
3) the use of the photo does stop you from using the photo yourself, and does not significantly affect your potential revenue from your use of the photo.
Certainly it would be nice if the Society (or employee) would credit you for the photo, such as “Cover photo kindly donated by ... ” Perhaps you can ask them to do so if the book gets reprinted in the future.
Best wishes,
Andrew