By Dianne Brinson,
a copyright attorney,
Before you take that photo, you may need permission for the following: Photographing buildings, works of art, or other copyrighted items; Photographing people; Photographing on public or private property. In this short article, attorney Dianne Brinson briefly discusses when permission may be required.
Under current U.S. law, copyright protection arises automatically when an “original work of authorship” is “fixed in a tangible medium of expression". A work is “original” in the copyright sense If it owes its origin to the author. For example, a photograph of Yosemite’s Bridalveil Fall is original so long as it was created by the photographer, even If it’s the zillionth photo to be taken of that scene. Only minimal creativity is required to meet the originality requirement, no artistic merit or beauty is required.
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Here are some guidelines:
Only buildings created after December 1, 1990 are protected by copyright. Fortunately for photographers, the copyright in an architectural work does not include the right to prevent others from making and distributing photos of the constructed building, if the building is located in a public place or is visible from a public place. So you don’t need permission to stand on a public street and photograph a public building. You don’t need permission to photograph a public building from inside the building (although you may need permission to photograph separately-owned decorative objects in the building, such as a statue). You don’t need permission to stand on a public street and photograph a private building such as a church or a house.
This “Photographer’s exception” to the copyright-owner’s rights applies only to buildings, a category which includes houses, office buildings, churches, gazebos, and garden pavilions. The exception does not apply to monuments (protectable as “sculptural works”) or other copyrighted works, such as statues and paintings.
You may need permission to photograph a copyrighted work of art, for example, a statue in a public park, or a painting in a private collection or art museum. And getting permission can be tricky, because, according to copyright law, you need permission from the copyright owner, not from the owner of the work of art itself. In copyright law, ownership of the copyright in a work is distinct from ownership of the copy (the tangible item).
For example, suppose that you are taking photographs of a painting in an art collector’s private home collection. The art collector probably does not not own the copyright in the painting, the artist does. Unless your photograph of the painting is “fair use” (discussed later) you need permission from the artist.
You don’t need permission to photograph a work that is not protected by copyright (in “the public domain”). Works fall into the public domain for several reasons, one of which is expiration of the copyright term. In 1997, works created before January 1, 1922 are in the public domain. Also, works created by federal government officers and employees as part of their official duties are not protected by copyright. (This rule does not apply to works created by state or local government officers and employees).
You don’t need permission to use a copyrighted work in two circumstances: (1) if you are only copying facts or ideas from the work; or (2) if your use is “fair use".
You are free to copy facts from a protected work or to copy ideas from a protected work. The copyright on a work does not extend to the work’s facts. This is because copyright protection is limited to original works of authorship, and no one can claim originality or authorship for facts. Anyone can use ideas.
It may be that your photograph is “fair use” of the art works you photograph. If so, you don’t need permission. Whether a use of a copyrighted work is fair use is decided on a case-by-case basis by considering the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for or value of the protected work.
There is no simple rule to determine when an unauthorized use is “fair use". You are more likely to be able to rely on fair use for photographing copyrighted items if your work serves a traditional fair use purpose (educational, research, news reporting, criticism, or public interest). Fair use is always subject to interpretation.
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You may need permission to photograph people due to state laws giving individuals privacy and publicity rights.
Most states in the US recognize that individuals have a right of privacy. The right of privacy gives an individual a legal claim against someone who intrudes on the individual’s physical solitude or seclusion, and against those who publicly disclose private facts. Unless you have permission, avoid publishing or distributing any photo of an individual that reveals private facts about the individual (particularly if revealing those private facts might embarrass the individual).
Almost half the states in the US recognize that individuals have a right of publicity. The right of publicity gives an individual a legal claim against one who uses the individual’s name, face, image, or voice for commercial benefit without obtaining permission. In case you are wondering how the news media handle this, newspapers and news magazines have a “fair use” privilege to publish names or images in connection with reporting a newsworthy event.
Be particularly careful about celebrities. Using a photograph of a celebrity for your own commercial gain — for example, posting a photo you took of Clint Eastwood on your business’s marketing material or Web site — is asking for a lawsuit, even if you took the photograph when you ran into Clint on a public street.
Commercial photographers avoid right of publicity/privacy lawsuits by obtaining photographic releases from people shown in the their shots. If you are considering selling your photos or using them on your Web site, you may want to do the same. The Multimedia Law and Business Handbook contains a sample release. Experienced performers and models are accustomed to signing these releases.
If you are going to shoot commercial photographs on public property, you may need to get a permit from the appropriate government authority (usually a local or state film commission). Permission is generally not required for taking the usual “tourist type” photos (although you should obey any “no entry” signs you see).
If you are going to shoot on private property, get permission to enter and use the location for shooting and to show the premises in your work, in order to avoid trespass and invasion of privacy claims by the property owner.
The laws and rules described in this article apply to photos used on the Internet. Copyright law and other laws do apply to the Internet, and posting a photo on the Internet exposes your photos to the eyes of the whole world.
This article is provided with the understanding that neither the author nor the publisher is engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
Dianne Brinson, a copyright attorney, received her law degree from Yale Law School and her B.A. from Duke University. A former law professor, Dianne currently teaches Law for Internet Users at San Jose State University’s Professional Development Center.