You take a picture of a city street. Look closely and you’ll see copyrighted material everywhere in your photo. The obvious copyrights are on the billboard, the newspaper stand and products in the store window. The less obvious copyrights are in the sculptural ornamentation of the lamppost, the patterned fabric of a woman’s skirt and the toy the kid is holding. You will never be able to track down all of these copyright owners to get their permission to use the photo. Are you out of luck if you want to use it commercially? Maybe not.
While copyright law can be restrictive on photography, it is not irrational. Copyright law includes the doctrine of “fair use” that allows unauthorized use of copyrights in certain circumstances. The courts recognize that free expression and avoiding law suits over minor issues are more important than protecting intellectual property rights.
The doctrine of fair use means that copying will not infringe a copyright when it is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” Four factors are considered to determine whether the use qualifies under the doctrine:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used; and
The effect of the use upon the potential market for or value of the copyrighted work.
So if the copyrighted material that appears in your photo is covered by these four categories, you do not have to be concerned with getting permission to use it. On the other hand, it’s a judgment call. Would a court agree with your position? It may be costly to find out. The next best alternative is to get a copyright lawyer’s advice. The lawyer can give you an opinion based on research and experience. But the safest and sure way to use a copyrighted work in a photograph is to get permission in writing from the copyright owner.
Take my advice; get professional help.
Copyright 2005 Carolyn E. Wright All Rights Reserved
--- ABOUT THE AUTHOR ---
Carolyn E. Wright, Esq., has a unique legal practice aimed squarely at the needs of photographers. A pro photographer herself, Carolyn has the credentials and the experience to protect photographers. She’s represented clients in multimillion dollar litigations, but also has the desire to help new photographers just starting their careers. Carolyn graduated from Emory University School of Law with a Juris Doctor, and from Tennessee Tech Univ. with a Masters of Business Administration degree and a Bachelor of Science degree in music.
She wrote the book on photography law. “88 Secrets to the Law for Photographers," by Carolyn and well-known professional photographer, Scott Bourne, is scheduled for fall 2005 release by Olympic Mountain School Press. Carolyn also is a columnist for PhotoFocus Magazine.
Carolyn specializes in wildlife photography and her legal website is http://www.photoattorney.com
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