Publishers, web site designers and others often see photographs they like and the issue then arises as to whether or not those photographs may be used for either a book cover, internal art within a book or on a web site or for any other purpose.
Photographs are copyrightable works that may actually present somewhat more complicated issues than do graphic works of art. (I am assuming for the sake of this article of course that the photographs are protected by copyright at least in the United States.)
The Rights Issues
There are generally an overlay of rights owners. Unlike graphic art work that is often created by a single artist (see “The Cover Artist/Illustrator Agreement”), a photograph often involves the rights of the photographer as well as the subject if the subject is a person (and in some limited instances, a building but let me not deal with this latter topic in this article). It is the photographer that generally has copyright ownership to the photograph. Under the copyright law, copyright subsists in original works bearing some form of originality. The photographers skills in posing the subject, arranging the lighting, adjusting the camera etc. are generally sufficient to pass the threshold for originality.
And even photographs of now public domain works of art, perhaps called “classic art” such as the Mona Lisa or the like, may also be protected by copyright. While the underlying art may be in the public domain and thus free to use, a particular photographic depiction of that free artwork may be separately copyrighted and so a clearance must be obtained for using that photographic reproduction of the artwork. I use the word “may” here because under the originality concept discussed above, if the photograph is an exact duplication of the public domain work (which it clearly is intended to be), then perhaps an argument can be made that the photographic version may not be separately copyrightable since there is not sufficient originality shown.
Needless to say, if the underlying artwork is still covered by its own copyright, then permission to use it must also be obtained. These rights usually reside with the artist or the artist’s estate.
Thus, in order to use a photograph for any purpose, you must obtain clearances from the photographer. When you see a photograph in a magazine or book, it is unlikely that that magazine or book owns the copyright in the photo. What is more likely is that the magazine is merely a licensee for some limited use and that all other rights remain with the photographer. Thus, you should not be dealing with the publication in which the photograph appeared since they most often will not have the rights to grant. You may obtain clearances, if at all, only by negotiating with the photographer.
However, often the photographer either has an agent or perhaps has granted licensing rights to a clearance house. When you approach either the photographer, the agent or the house, you must know what rights you need because the fee is going to be based upon those rights. Do you need book cover rights? Merchandising rights? Foreign rights? Internet rights? etc. etc. Read “The Need for Vision.”
Personal Rights Issues
If the photograph is that of a person, you must also obtain permission of the person depicted in the photograph to use his or her likeness. The courts of the United States and some other jurisdictions have recognized a “right of publicity,” a right that derives from the “right of privacy.” These rights apply to all living persons and, under certain circumstances, those dead.
There are several sub-issues that have to be dealt with in terms of the right of privacy:
First: a person’s likeness and name may not be used for commercial purposes without the person’s consent. What then is a “commercial purpose?” This means a use that implies sponsorship, endorsement or where the photograph is used to sell a product or service. If you intend to use a photograph for such purposes, you absolutely must have a valid, written license from the subject to do so and you should be prepared to pay for the same.
Even if your use is not for “commercial purposes,” you still must have releases in writing from each of those whose images are distinguishable in the photograph. Most professional photographers carry model releases with them that the model, professional and otherwise, signs granting these personal rights to the photographer. But a word of warning: often the model releases may have limits on the rights granted the photographer and therefore, if the photographer grants you more rights than the photographer has, he and you may be liable to the subject. Therefore, it is always advisable to get the model to sign a separate release as well, even though the photographer may represent that he or she has such permission. If he or she is wrong, all you’ve got is a lawsuit.
In some very limited instances, a photograph of a public figure may be used without permission but these circumstances must be analyzed very carefully. If the person is a public figure (a celebrity, a politician and the like) or is a private figure but one who is involved in a matter of public concern (a news story for instance) and in both instances the use of the photograph is directly related to the person’s public status, then the courts have said that in those instances, the right of the person to his or her privacy gives way to the public’s right to get the public information. But as I have said, this is a very limited set of circumstances. Additionally, even if somehow you intend to use that photograph in a permissible way without the subject’s consent, you still must have a release from the copyright owner of the actual photograph. In a news story for instance, this may be the photographer or it may be the newspaper, news organization or the like. It requires some research. And no matter what the topic, if you intend to use a photograph of a person for commercial purposes, then you absolutely must have a signed license in writing granting you permission.
It is always the best approach to obtain written permission to use any photograph, both from the photographer and, if the subject is a person, from the subject if the subject or that person’s estate. Each situation must be analyzed independently to determine what rights, if any, exist, who may own such rights, and the steps required to protect you in your use of such materials.
The reasons to have a license are numerous (read “Screen Shot Liability for Computer Book Authors” for a further explanation) but if nothing else, knowing that you have written permission helps you sleep better.
This area of the law can be complex and, if you guess wrong, expensive. Get a license!
© 1999 Ivan Hoffman