Most authors, at some point in their careers, use photographs with their creative work. Maybe to bring a story to life. Maybe to create a book cover. Maybe as an aesthetic enhancement to a blog or newsletter.
Depending on the content in the photograph, the image might include someone else’s copyright or trademark-protected work. For example, the photo has a painting in the background. The model has a tattoo visible. An iconic building is the main focus of the picture. There is a logo on the t-shirt of a model. Under certain circumstances, using photos with copyright and trademark-protected content without permission from the owner can constitute infringement.
Here’s how to avoid infringing someone’s protected work in your photographs.
Copyright in the US comes with the exclusive right to use, reproduce, and distribute the creative work. Typically when we talk about copyright content, we think of literary works. But copyright protection also extends to paintings, photos, maps, drawings, charts, lithographs, sculptures, globes, stained-glass windows, pottery, jewelry, labels, wallpaper, furniture, toys, buildings, and fabrics. Photos contain many of these items.
For creative works created on or after January 1, 1978, copyright protection lasts for the life of the author/creator plus 70 years, or 120 years from the creation date if the death of the author is unknown. Upon expiration, the work enters the public domain for anyone to use free of charge. For works created before 1978, see my previous post here for more information about expiration dates.
You could easily feature one of these items in a photo without considering the consequences of a third party’s intellectual property. Suppose your photograph includes a painting on the wall, for example, and you used that photo without permission from the artist. In that case, you could be infringing the artist’s right to reproduce and distribute the copyright-protected painting unless these exceptions apply.
If the copyright has expired, then you need no permission. If the copyright is current, and you’ve used a substantial part of the protected work, then ask yourself if your use falls within the fair use doctrine? If not, then you need permission.
I’ve covered fair use before here. I won’t rehash this rather complicated area of law. In general, the courts use four factors to determine if a particular use of an image is fair (the purpose and character of the use, the nature of the copyright-protected work, the amount and substantiality of the part taken, and the effect of the use on the market).
Often, using an image is considered fair use and doesn’t require permission if you use the image for educational, research, commentary, or non-profit purposes. Or you transform the image to create a new meaning. Or you use the image in a fact-based context that benefits the public, like with a news source. Other common fair use examples might be if the copyright-protected work in the photo is only an incidental background image and not the focus of the picture, like an iconic building in the background.
If you need more information about how to ask for permission, see my earlier post here.
A trademark in the US comes with the exclusive right to use a trademark on particular goods in commerce to designate the source of those goods, i.e., to allow people to identify who made or owns those goods. We often think of trademarks as a brand. Trademarks can be words, symbols, slogans, logos, packaging, colors, figurines, toys, sounds, scents, or combinations thereof. A trademark can last in perpetuity, provided the trademark is used in commerce. See this post if you need more info on trademark basics.
Trademark law forbids the use of a trademark in commerce by someone else in a way that will cause a likelihood of confusion as to the source or ownership of the goods. For example, if your photo for your book cover contains a logo on a t-shirt, and a consumer would believe the trademark owner sponsored the photo, then trademark infringement exists. Say the photo features an athlete with a prominent Puma logo, or you have a model in front of McDonald’s, or your photo features Star Wars action figures. If a consumer would think Puma, McDonald’s, or Lucas Films approved the use of the photo, then the photo is attempting to appropriate consumer goodwill associated with the trademarks. You’d have the same problem if you put your book cover on t-shirts or swag for your book launch. If a consumer would think those corporations approve of using the photo featuring the logo on the swag or sponsored the product, trademark infringement exists.
But if the photo of the trademark doesn’t confuse consumers as to the source, for example, it’s incidental and not the focus of the picture, trademark infringement doesn’t exist. For example, I’m using the trademark figures in the photo for educational purposes (which would be fair use under copyright law) and not to confuse consumers that this post is approved by Lucas Films.
Another interesting example might be tattoos on a model for your romance novel cover. Distinctive tattoos can be trademark protected if the tattoo designates the source.
Exceptions for most uses of trademark-protected items in photos revolve around fair use. You can read more about that here. But in general, if your use doesn’t create a likelihood of confusion, then you’re in the clear.
What Should You Do?
- Examine your photos for content that could be copyright or trademark-protected.
- Determine if the content is in the public domain or if the copyright or trademark has expired.
- If the content is copyright or trademark-protected, consider if your use falls within the fair use exceptions.
- If the exceptions don’t apply, seek permission or reframe your photo to remove the protected work. Or reframe it enough to avoid including substantial amounts of the protected content.
Do yourself a favor and spend time reviewing your photos’ content before you use them in commerce. You’ll sleep better at night knowing you’ve avoided potential legal snafus.
Photo Credit: edwicks_toybox | VisualHunt | Creative Commons License
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.