Last Tuesday, we posted part 1 of a Q&A on image copyright from our March 23 webinar, “Avoid the Confusion! Learn When and How to Safely Use Online Images in Your Design Work.”
Today, we pick up where we left off with John Grant (right), copyright attorney at Imua Legal Advisors, who is back as a guest blogger to address the remaining audience questions from the webinar.
(Special thanks to John Grant for participating in the webinar and taking the time to address these questions!)
Q: I was taught that if I change an image when I’m creating something artistic, it becomes “mine.” Is this still accurate?
A: It depends on a lot of things, including how much you change the underlying work, how much other material you add to the underlying work, how much of the underlying work you use, and other factors. It is certainly possible under the fair use doctrine to create something new using raw materials from copyrighted content, but fair use is a complicated analysis. If this is something you’re doing as art or commentary, as opposed to something you’re doing as paid work for a client’s marketing campaign, then you may have an easier time establishing fair use. But if it is client work, you owe it to yourself and your client to clear your uses of other people’s content as completely as possible.
Q: What about trying to duplicate the same image (or concept), but you take the photo yourself?
A: As I said during the slideshow, there is a huge difference between duplicating the image and duplicating the content. Images are copyright protected; concepts are not. A great question to ask yourself is, “Am I being artistically lazy or taking a shortcut by referencing someone else’s work?” Put another way, are you substituting someone else’s creative expression for your own?
Take the example I gave with the photos of a businessman in sandals and a red polo walking down the street with columns in the background (below). The defendant in that case specifically argued that they were merely using the concept of “causal office dress’, but the judge (ruling on a summary judgment motion) said that the similarities between the images themselves were enough for the copyright infringement claim to go to a jury. There’s no way to know how things might have come out differently, but my guess is if the guy in the second image were wearing a blue shirt instead of a red one and were walking in front of a different building then things may have turned out differently.
Q: What if I use an image without permission in a non-commercial way? For example, what if I Photoshop a photo of myself next to a celebrity and post it on Facebook for a laugh with friends. I receive no compensation. Am I infringing copyright?
A: Yes. Any use of someone else’s protected work is technically copyright infringement—there is no legal requirement that you make money from the use. It may be excusable infringement (such as fair use) or it may be so trivial that it flies under the radar, but you take some risk any time you use someone else’s work.
Q: Say you want to use one part of an image, like the palm tree from a picture of a Hawaiian beach. Could you use that part of the image without getting a license, or does that depend on things like whether the tree is the main focus of the design, etc.?
A: Again, the base assumption is that it is copyright infringement to use anybody’s work without permission. It may be fair use or de minimus infringement, but fair use can be a close question that ultimately is decided by a judge. I don’t want to say that you can never use someone else’s work in your own, and I have an article on my website that specifically discusses fair use and appropriation art, but every time you do so you run some risk that the copyright owner is going to make a legal claim against you.
Q: Can you discuss the standard licensing agreements from popular stock photography sites like Shutterstock, iStock or Fotolia?
- K. Smith
A: Licenses can vary from site to site, so there isn’t really a good way to generalize. I recommend that you review the agreements carefully yourself, and if you have any questions about any of the provisions don’t be afraid to contact the agency to clarify for you. If there is a site you use often, you may even want to have your own lawyer review the license for you.
Note: The information we are providing is accurate to the best of our knowledge; however, no warranties or representations are made to the accuracy of the statements made in this post. You should seek out legal counsel input for your specific situation.