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So, You Want to Use That Photo for Your Website?

I’m often presented some variation of this question: You: “I bought this really cool photograph at an art show. I love it and want to use this image as the logo for my start-up. No problem, right?” Me: “Wrong. Big problem.”

1-IMG_9152Here’s why: copyright means just that – the right to copy. Under the U.S. copyright law, the copyright owner holds a bundle of rights to the image represented in the photo. One of these rights is the right to copy it. Now, you may be able to license it from the photographer (assuming she hasn’t transferred her rights), or perhaps even use it for free with a simple attribution, but ownership of the thing itself – the tangible photo – does not transfer any right to copy the image found in the photo.

If you’re dead set on using that protected image, you had better manipulate it in such ways as to transform the image into something new, a “fair use” of the original. And you may not know whether your new work is a fair use of the old until a court decides. It’s clear that the boundaries of fair use are expanding, but there is no bright line test or checklist to consult to know in advance.

What about using old photographs you’ve found at a flea market to create a line of greeting cards? This can be a close question and turns on whether the images have passed into the public domain (no, public domain is not a place, though I wish it were). A work falls into the public domain when it is no longer under copyright protection or it failed to meet the requirements for copyright protection. It’s a pretty sure bet that anything before January 1923 is safe; after that date, it gets a bit murkier, as the copyright laws changed several times over the decades, yielding several different term periods of copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner. There are several good public domain photo websites, including your Uncle Sam’s, offering a trove of cool free images.

Note that the copyright ownership of the image is a separate issue from any rights that the subject of the photograph may have in the image. The case of Chang v. Virgin Mobile USA, et al. illustrates the principle that somebody looking to use a photograph needs to worry not just about copyright law, but also misappropriation and rights of publicity. The case was subsequently dismissed for lack of personal jurisdiction over Virgin Mobile.

A serious photographer will get a model release from her subject, which permits the photographer to freely use the subject’s likeness. Without a proper release, though, using another’s likeness is fraught with legal danger. Most states recognize a person’s right to privacy (including the right to control one’s likeness) and a right of publicity. The extent of protection varies some from state to state though some states give protection even if the use lacks any commercial motivation.

So, aim before you shoot. If you’re pondering how you might use someone else’s image for your own purposes, talk it over with an attorney first.

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