Written by Ray Detwiler
There is not always an easy answer to this question, but perhaps we can help you by pointing out some essential things to understand about licensing and copyright.
In order to understand image licensing, we need to discuss intellectual property (IP) and the rights associated with it.
Intellectual property is defined as, “Property (such as an idea, invention, or process) that derives from the work of the mind or intellect.” In other words, your ideas and thoughts relating to a product or concept are considered your property.
What rights do you have to those ideas? Well, according to the World Trade Organization (WTO), “Intellectual property rights are the rights given to people over the creation of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.” Just like a person is not legally allowed to walk into your place of residence and help themselves to the TV, your thoughts and ideas are protected by law and cannot be taken or copied freely.
IP rights were set up in order to encourage people to develop new ideas, inventions, works of art, and products. The creators of these new concepts can do so with confidence knowing that, once they create something original, it will not instantly be reproduced, thereby diminishing the value of it. There would be no incentive to innovate if all creations were subject to theft, reproduction, and counterfeiting without consequence.
In the U.S., IP is protected with the aid of the US Patent and Trademark Office. In order to protect IP, the Office provides and regulates Trademarks, Copyrights, and Patents. For our specific topic, we will focus on Copyrights. The USPTO website specifically states, “Copyright is a form of protection provided by U.S. law to the authors of ‘original works of authorship’ fixed in any tangible medium of expression. The manner and medium of fixation are virtually unlimited. Creative expression may be captured in words, numbers, notes, sounds, pictures, or any other graphic or symbolic media.”
You will notice that pictures are included in the list of items protected by copyright. The website goes on to state that, “no publication, registration or other action in the Copyright Office is required to secure copyright. Copyright is secured automatically when the work is created…” This means that as soon as an image is created in the camera, it is protected under US Copyright Law. With no further action needed, the photographer becomes the copyright owner. This is the most important thing to remember when it comes to using a photographer’s images for any purpose.
Now let’s briefly discuss licensing. This is the process of giving someone limited access to something you own under a predefined set of limitations. Licensing is defined as a grant by the holder of a copyright or patent to another of any of the rights embodied in the copyright or patent short of an assignment of all rights.
Perhaps an illustration would help. Tom and Bill are playing basketball with some friends at a park by their house. Tom owns the basketball that the players are using. After about 15 minutes of game time, Tom gets a phone call and has to leave. In order to not ruin the game, Tom agrees to let Bill borrow his basketball so the team can keep playing, as long as Bill returns it the following day.
Tom has just “licensed” his basketball to Bill for a specific purpose, and for a predetermined period of time. Bill is now free to continue the game and use the ball. Bill, however, is not free to sell the ball to someone. He is not free to rent the ball to other players and make a profit off of Tom’s generosity. He is not at liberty to write his name on the ball with a marker. He is not free to cut the ball up and make an “art” piece from it. He is also not free to keep the ball indefinitely as if it were his.
The same example applies to images produced by a photographer. The images he or she produces are available for use by others, as long as guidelines are followed. The guidelines vary from project to project and photographer to photographer. As long as the person using the images communicates clearly what the intended uses of the images are, there is usually no problem setting up a licensing agreement that satisfies both parties. Some photographers will give the license at no cost, while some photographers will charge for it.
Photographers will, on occasion, grant exclusive rights to a client. This means that the photographer will not attempt to license the images out to any other client, and only the holder of the exclusive rights is allowed to use the images.
An example of this is when a company hires a photographer to do photos specific to their company. Just like the brand Nike wouldn’t post photos of Adidas shoes on its website, one company typically would not want to post photos of another company’s employees or facility on their website.
Through all of these different scenarios, the photographer who created the images will still retain ownership of the images. It is almost never an option for a company to “own” images taken by a photographer. The exception to this is if the photographer is a full-time employee of a company. In such a case, any images the photographer makes on behalf of the company become owned by the company. Just like any other work created while in the employ of a company become property of the company they were created for.
You may now be asking yourself if you are in trouble for downloading those images of puppies from Google you showed the students in your classroom last week, or if the pictures you downloaded of the house you are interested in buying will land you in court?
The short answer is most likely not. Copyright protects the owners of IP from people attempting to make money off of their creations, or attempting to claim that someone else’s creation belongs to them. In the case of downloading images from Google, if they are used for educational purposes, there is no profit to be made. Same for the photos of the house that were sent to your mother. The term is “Fair Use” and it gives the “right to use portions of copyrighted materials without permission for purposes of education, commentary, or parody.
Changing the scenarios up a bit, if the photos of puppies were used without permission in a book that was sold to educators, that would be an infringement on the photographer’s copyright on the images. Likewise, if the photos of the house were pulled from the internet and used to create an MLS listing to sell the house, that would be a direct infringement and the listing agent who is found using the images could be sued. Real estate professionals should be careful where they get their images from and should always ensure they have permission to use any real estate photos they use.
We hope this was helpful and answered some basic questions on image ownership, image licensing, and what the law says about intellectual property. When in doubt, it is always best to ask the photographer who created the images for permission. If that person is not available, or you don’t know who the person is, ask yourself if you stand any chance of benefiting financially from using the image(s) before you continue.
If so, you should probably contact a local photographer and have them produce images specifically for your needs. It is also a good practice to always give credit to the photographer who created the image. This way you will have protected yourself from confusion and no one will think you are claiming to be the creator of someone else’s work.
Interested in learning how we provide custom photography for our clients? Drop us a line, or swing by our office. You provide the questions, and we’ll provide the coffee.