Featured Photo: Barbara Konecny, Head of Case Management at Pixsy, via Flickr (All rights reserved)

Did you know that the Eiffel Tower’s lighting is a copyrighted work, distinct from the structure of the Eiffel Tower itself?

Publishing a photo of Pierre Bidreau’s “Illuminations” on your personal Facebook is unlikely to attract the attention of SETE, the managing company of the image of the Eiffel Tower. The limited application of freedom of panorama legislation in France does, however, mean that any publication that is not accompanied by attribution is illegal, regardless of whether the work is used for commercial or strictly personal purposes.

Some landmarks might seem to have an obvious answer to the question “what permissions, releases, or licenses are required before I publish this work?” Knowing the answer is not always so easy.

While it’s impossible to deal with this matter in general and on a global scale, what follows are considerations to take into account before you photograph a copyrighted work. After all, as creators, don’t we all wish that appropriate licenses and permissions were obtained before our work was reproduced?

First – what is copyright?

Applied for these purposes specifically to photographers and other visual artists, copyright is a set of inalienable rights that grant copyright owners the following batch of exclusive rights:

  1. to reproduce the copyrighted work;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. to display the copyrighted work publicly.
*The above is taken from the U.S. Copyright Act, 17 U.S.C. 106. With some exceptions, including with respect to moral rights and how strictly ‘fair use’ is defined, European copyright directives are similar.

What kind of works are protected by copyright?

All kinds of original expressions fixed in a tangible form, from literary and musical to audiovisual and pictorial works, are protected by copyright.

Have you taken images of stage lighting at concerts, street art, jewellery, or even tattoos? If the expression is original, you can bet that these are copyrighted works.

What permissions might be required to reproduce a copyrighted work?

While simply taking an image containing a copyrighted work is not likely to land you in hot water, you should always evaluate the following before you consider publishing your work.

The above caveat holds even if your work is an original expression itself – not having the permissions of the copyright owner or appropriate licenses, if applicable, could result in legal issues for you and your future clients.[1]

  • Public or private space
  • Temporary or permanent display
  • Copyrighted work or in the public domain

Is the copyrighted work in a public or private space?

Artists who create work for permanent public display are typically held to fair use principles or copyright exceptions that seek to balance an artist’s copyright with public interest.[2] [3]

Imagine, for example, how limited creative expression would be if we had to seek permissions for various buildings that pop up throughout our photos (yes, architectural works can be copyrighted too). A hard and fast rule holds that as long as a building is on public land, or that you take the image from a public space, you do not need to seek permission before publishing your work.

What about images containing copyrighted works that exist on, or were taken from private property? If you’ve ever been to a museum or gallery, you have probably also seen variations of “no photography” signs loitering around. As a general rule, if you’re on private property, always ensure that you have permissions to be there and to take photos of or including your proposed subject.

Hundertwasserentscheidung

Hundertwasserhaus, Vienna

Rok Hodej, via Flickr, CC BY 2.0

The Hundertwasser Decision is a landmark ruling of the German Federal Supreme Court. At the heart of the matter is an image that a photographer took of the Hundertwasserhaus, an apartment complex in Vienna, Austria, through the window of an adjacent apartment building. The photographer did not seek permission to take the image, and subsequently sold reproductions of his image as a print in Germany.

After a prolonged legal struggle, what ruling did the German Federal Supreme Court arrive at? The photographer had violated the Hundertwasserhaus Foundation’s copyright not because he reproduced an image of the copyrighted work itself, but because he had taken the image from a private and not a public space.

Copyrighted work or public domain?

Whether a work is copyrighted or in the public domain can be difficult to determine if you’re not well versed in the provenance of the work at hand, and copyright durations in the respective country. Copyright durations can be extremely complex, but for member signatories of the Berne Convention, it is equal to the span of the life of the author plus a minimum of 50 years.

Why is this kind of determination important?

The Eiffel Tower illustrates a great example.

By day, the landmark – built in 1889 – is in the public domain. This means that you can take, reproduce, and even monetize commercial reproductions of the structure itself.

By night, “Illuminations” by Pierre Bidreau is a protected copyrighted work. All reproductions must be accompanied by attribution to the copyright owner – even on private social media accounts. Unless you want to receive a letter from an attorney, you will need a property release and a license prior to publication for any commercial and some editorial uses.

Fair use and copyright limitations and exceptions

Are there any situations in which your reproduction of a work could be considered fair, and for which you might not need to seek permission or a license?

Fair use in the US is comprised of the following four factors. Keep in mind that no single factor determines fair use; rather, these factors are considered together to assess whether fair use applies:

  1. the purpose and character of the use, including whether such use is of 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.

Fair use is commonly alleged and rarely applies.

If you’ve used the image for the purposes of research, private study, education, parody, satire, criticism, review, or in topical news reporting, it is possible that your use could be considered fair. This being said, it’s our experience that fair use is commonly alleged as a defence against infringement, and rarely applies.

What are some best practices to ensure that you’ve secured all permissions before reproducing a copyrighted work?

  1. Do your research to determine what requirements there might be in your publication of a copyrighted work, even if your own work is an original expression or you think it might be fair use. Keep in mind that laws surrounding what types of reproductions can be made and how (or even if) these can be published can vary significantly from jurisdiction to jurisdiction – you shouldn’t assume, for example, that the regulations that hold in one country in the EU are the same as in another (see freedom of panorama legislation across the EU for reference).
  2. Seek permission wherever possible from the copyright owner. You might also need to seek permissions from the current owner or the person or entity that has licensed the work. Even if you do not intend to commercialize your reproduction, we should always do our best as creators to ensure that we have the appropriate permissions to publish a reproduction containing another creator’s work.
  3. Always credit the copyright owner wherever possible. In civil law jurisdictions, creators have moral rights to authorship and paternity – this means to be attributed. Going out of your way to seek out the copyright owner is not only good practice, it’s something we wish everyone using our images would do as well.
  4. Do not license or otherwise commercialize imagery containing separately copyrighted works unless you have the required permissions and/or license to do so. A reproduction created exclusively for personal use may be one thing, but commercializing your reproduction is likely to be considered copyright infringement.

 

[1] Note that this article does not substitute for legal advice, and you should speak to an attorney with knowledge of local law as specific situations require.
[2] Work included in this legislation includes sculptures or other 3-dimensional work, and does not extend to all forms of public art – for example, paintings and murals.
[3] The permanence provision excludes temporary displays, and if you’re seeing a temporary display on private property? We recommend that you read any fine print prior to publishing an image containing the work, even if your image itself is an original expression.