Copyright is an essential issue for photographers, illustrators and anyone else who creates original work. Here, we answer the most common questions on copyright and images.
Copyright is a subject that’s frequently misunderstood, both by the creators of artistic work and their audiences.
Many misunderstandings stem from a handful of oversimplified beliefs around the ownership of copyright and the extent of its protection. Copyright over an image doesn’t necessarily always automatically belong to the photographer, for example, nor does it last indefinitely. UK and US copyright laws also make it clear that work protected by copyright can be used in limited ways by others, without any authorization from the copyright holder.
The issue of copyright is further muddied by the evolution of image-sharing platforms and social media networks, which has led to a number of well-publicized legal cases. Rights-grabbing, which describes the practice of an organization claiming unreasonable rights to an image that was submitted for a specific purpose, has also been a subject of focus in recent years.
While it’s worth keeping an eye on legal rulings in individual cases that regard copyright matters, the key principles on copyright rarely change in any significant way for photographers. In the UK, works are protected by the Copyright, Designs and Patents Act 1988, while the 1976 Copyright Act protects works in the US, although both have been subject to a number of amendments since their adoption.
Understanding the basics of what copyright means for the use of your images – especially if they are destined for any kind of publication – will not only help you to appreciate what rights you have over your own work, but it should also help you to understand what’s permissible when it comes to using work created by others.
Here, we answer the most common questions around copyright over images.
What is copyright?
Copyright is a collection of rights that provide the holder with certain privileges over creative works. It is a form of intellectual property, and also a human right.
Photographs fall into the category of creative work, as do illustrations and graphics, and works of literature and music. What differentiates these from many other works is that some degree of skill or creativity will have gone into their creation.
Copyright over photographs allows the copyright holder – who is also usually the creator of the work – to restrict the way that work can be used by others. It also allows them to reproduce their own work and to create derivate works based on it, as well as to collect royalties on it when it’s used. Furthermore, should an artist find that their copyright has been infringed, copyright allows them to take legal action.
Do you need to apply for copyright for your own images?
No. Copyright is yours as soon as you capture an image, and it does not need to be applied for in any formal capacity.
I’ve seen that it’s possible to register for copyright. Why would I need to do this if I already have the copyright to my work?
Most countries do not have a formal way of registering an image or another creative work for copyright. One exception to this is the US; you may wish to register for copyright with the U.S. Copyright Office to make it easier to prove ownership of an image or another created work in the event of a legal dispute. Indeed, this is mandatory before an infringement suit can be filed.
How do I know an image is subject to copyright restrictions?
As a general rule, you should assume that if an image isn’t your own, the copyright to it belongs to someone else and that it has the same protection that you would enjoy over your own images.
The photographer or copyright holder may make this clear by way of an image caption or a watermark, and/or they may attach this information to an image as part of its metadata.
Even if you cannot find this information, unless you are sourcing images from an established copyright-free image provider, you should assume that an image cannot be used in the way you would use your own. Whether or not you can actually use an image, however, depends in part on exactly how you intend to use it, something that will be discussed later.
One way of indicating that an image is free from copyright restrictions is with the Public Domain Mark (above). This may be because the copyright has expired, and it’s for this reason that you may encounter this mark when browsing museum collections and in other heritage institutions. You can read more about this mark on the Creative Commons website.
If a photographer owns the copyright to an image, what’s the purpose of attaching copyright information to it?
There are two reasons for this. First, a visible copyright message reminds the viewer of an image that it is subject to copyright restrictions and cannot be used freely. This in turn helps to discourage unauthorized downloading.
Furthermore, if copyright information is embedded within the metadata of the image, ownership can be proved more easily. It’s worth bearing in mind that this information can be edited by someone who has obtained a copy of the image, but the ease with which this can be added to images as they are captured makes it worth doing nonetheless. Learn how to attach copyright details to every image you take.
One thing that could potentially lead to long-term changes in the way this kind of information is added and displayed is the Content Authenticity Initiative, which is currently being developed by Adobe, Twitter and The New York Times. This proposes a set of standards that would allow anyone to quickly check the creator of an image or another media type, and to understand whether any editing was carried out prior to publication. The purpose of this would be to understand whether an image, video or something else that’s posted online can be trusted, so it follows that its applications are more likely to concern editorial images and those relating to current events, although it may well end up being adopted more widely. Read more about the Content Authenticity Initiative.
Can I copyright an idea I have for a photograph or another image?
Copyright cannot be assigned to an image before it actually exists. Copyright only applies to tangible works, such as a physical photograph, a negative or a digital image.
If I take photographs as part of my job, does my employer own their copyright?
This is one exception to the rule of an image’s copyright automatically belonging to a photographer as soon as it is captured.
Copyright over images taken during the course of employment will, by default, belong to the employer rather than the employee. This will usually be detailed within an employment contract, so this would be the first place to check the specific terms.
Obviously, if you are capturing images for your job, it’s reasonable for your employer to protect their intellectual property, and to prevent such images from being seen or used by competitors. Breaching these kinds of agreements has been known to result in legal action against the employee, so the responsibility is on the employee to fully understand what they have agreed to.
Is owning the copyright to an image the same as owning the image itself?
This is where things get a little more complicated. On the whole, if you capture an image you will own both the image – be it in a physical or digital form, or both – and its copyright. The exception to this is when capturing an image as part of your employment, where you will likely own neither of these.
If you were to duplicate the image yourself, either as a digital file or by printing it, the copyright to the image would still be yours, regardless of whether you choose to sell or give such an image to someone else. Any recipient would not be able to reproduce the image without infringing your copyright, unless you have agreed otherwise.
If you license an image, the copyright remains yours too – you simply agree that the licensee may use the image in a specific way. The license will usually stipulate what’s permitted with respect to geography, size of reproduction, nature of publication, circulation and timeframe, but the licensee will typically have far fewer rights over the copyright holder when it comes to the reproduction, display or publication of the image.
Can I use someone else’s image without their permission?
The vast majority of images will have a copyright holder, and this person will also have the right to control how these images are used. Under both UK and US law, however, there are certain exceptions.
Examples include works that are used for non-commercial research or private study, or when used for review, criticism or parody. These fall under the term ‘fair use’ (or ‘fair dealing’ in the UK).
In most cases, when images are used in this way, there needs to be sufficient acknowledgment of the creator, and care should be taken to ensure that the amount of work being taken is not only reasonable, but that the act of using it has no financial impact on the creator nor on the market value of the work.
How do copyright-free images work?
The most obvious example of a copyright-free image model is the Creative Commons Zero license (CC0), which allows a creator to give up the rights to their work as fully as the law allows. This does not mean that the copyright is available, just that the image can be used for commercial or non-commercial means without restriction.
While the concept is similar to the Public Domain Mark, one key difference is that CC0 is only intended to be used by the creator of the work itself. CC0 is also legally operative, whereas the Public Domain Mark is not.
Unsplash also provides a wide selection of copyright-free images, which can be used for both professional and personal purposes, without any royalties due to the creator. Things become a bit more complicated when such images contain recognizable brands or celebrities; what’s allowed will be determined by the specific usage, although those using such images for personal use shouldn’t encounter issues.
Is it possible for more than one person to have copyright over an image?
Yes, joint copyright does exist for images and other works. It’s possible for two photographers to hold the copyright to an image, such as when they have both created the image without there being any way to discern each photographer’s individual contribution.
Does copyright last forever?
Copyright over images, as well as music and other creative works, does not last forever.
As a general rule, copyright over an image lasts for the entirety of a photographer’s lifetime plus an additional 70 years, with this 70-year period starting at the end of the year in which the photographer dies. This is the case both in the UK and US.
One slight complication is that the exact duration of the copyright over an image depends in part on when the image was created. Under UK copyright law, the above is valid for images that were captured since 1 August 1989, while US copyright law states this for images created since 1 January 1978.
The United States Copyright Office states that “for a ‘joint work prepared by two or more authors who did not work for hire,’ the term lasts for 70 years after the last surviving author’s death”.
Can I sell the copyright to my images?
It’s more common for a photographer to grant a license to a third party to use their image, rather than to sell the copyright to it completely, but it is possible to either sell or give away the copyright to an image. Under both US and UK copyright law, moral rights to an image cannot be sold or transferred in any way, and expire when the copyright holder dies, but they can be waived.
If I sell a print of an image to which I hold the copyright, does the buyer gain any rights?
You maintain copyright to an image, regardless of whether you sell physical copies of it. This means that the buyer is not able to lawfully create copies of the image, or exploit it for any kind of financial gain.
Do my rights change once an image has been published?
Copyright to images holds whether you have published an image or not, although the way in which you publish an image may affect how that image can be used by third parties.
If, for example, you have published an image on a social media platform, you are likely to have already granted that platform a license to use this image in a number of ways. Read more about the rights granted to social media platforms.
What is an orphan work?
It may be the case that a photograph has a copyright holder who cannot be found or even identified. In this case, the image would be classed as an orphan work.
Orphan works are still protected by copyright, and are not simply in the public domain for everyone to use as they want. Museums can hold a substantial amount of orphaned images, for example, but they will be limited with respect to digitizing them, and so will not be able to make them available to wider audiences too easily.
In the UK, those keen on making such works available to the general public will need to demonstrate that they have searched for the copyright holder and then apply for a license. While some works are exempt from the licensing process, and simply require proof of searching for the copyright holder and registration of the work with the Intellectual Property Office, standalone images – that is, those not embedded with, for example, a book – do not fall into this category.
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