There is a wealth of images available on the internet, and it is really simple to copy this kind of material to a computer or to a website. Indeed, it’s so easy many people assume they are free to copy images and use them in any way they want.
But copyright law must be respected. In a recent posting on the FreePint Bar,1 one person commented on how they had used some small, general business images for their website which they had sourced from a variety of sites, thinking they were free. They received a letter from a large firm of solicitors claiming that they had ‘used the identified images without proper licence and payment’, infringing its client’s copyright. Along with the letter came an invoice and an annual licence agreement for the use of one small image. The invoice was for more than £2,500.
A recent article on this topic in the Guardian2 explored the way in which big picture agencies are enforcing their copyright and the expensive implications of the unlicensed use of images.
Photographs and images are protected as artistic works within copyright law, irrespective of artistic merit. The only requirements are that these works are original, and fixed in some form.
It is important to recognise that copyright is an automatic right. There is no requirement for a photographer to go through a formal registration process before their work is protected; nor is there any need for it to be marked with a copyright statement. So, even if you can’t see any kind of copyright statement on the website or a © symbol immediately underneath the photograph you want to use, you must never assume that this gives you the right to use it.
The author as first owner of copyright in a work has a number of economic rights. These give them the exclusive right to copy the work, make an adaptation of the work, issue copies to the public, perform, show or play the work in public or communicate the work to the public by electronic transmission.
In addition to these economic rights, an author or creator also has a number of moral rights. These can be summarised as follows:
- the right of paternity (i.e. the right to be acknowledged as the author or creator)
- the right to object to false attribution
- the right not to have their work subjected to ‘derogatory treatment’.
Within a digital environment, moral rights are particularly important because of the ease with which content can be manipulated. If digital images are reproduced electronically, it is important to ensure that they are reproduced in their entirety unless permission has been secured from the rights-holder. Don’t alter the image, because that could infringe an author’s right of integrity. If, for example, you were to crop or to stretch an image, this could be viewed as ‘derogatory treatment’.
In addition to the above moral rights, there is a right which is given to the subjects of photographs and films taken for domestic and private purposes. This restricts subsequent use beyond the purposes for which the pictures were originally taken, without the subjects’ consent. If, for example, Joe Bloggs commissioned a professional photographer to take his picture, even though the photographer would retain the copyright in the picture, they would not be able to publish it without Joe Bloggs’s permission.
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CASE STUDY
A public library has a number of photo-graphs in its local studies collection which have been donated over a number of years. It decides that it would like to digitise these pictures and publish them on a publicly accessible website. The library is not able to rely on fair dealing to justify the digitisation, and would be hard-pressed to find a copyright exception which would give it the necessary permission. It therefore needs to seek the rights both to reproduce and also to communicate to the public the photographs in question.
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Exceptions
It is true there are copyright exceptions or permitted acts which people might turn to in order to justify a particular instance of copying. But these can only be included in our national legislation if they comply with the ‘Berne three-step test’. It means that the exceptions only apply:
- in special cases
- if they do not conflict with a normal exploitation of the work
- if they do not unreasonably prejudice the legitimate interests of the rights-holder.
In the case of fair dealing for research or private study, for example, it would not be possible to copy someone else’s picture to your website or intranet, because that would be the equivalent of multiple
copying and could not be justified under those exceptions.
Nor can the fair dealing exception for reporting current events be used, because it specifically excludes the copying of photographs.
There are limited circumstances in which fair dealing for criticism or review can be used for copying a photograph.
The case of Fraser Woodward Limited v British Broadcasting Corporation and Brighter Pictures Limited 2005 EWHC 472 (Ch) explored the use of the exception for criticism or review. It relates to the use of photographs of the Beckhams in the BBC’s Tabloid Tales programme. When considering whether the use of the photographs had been fair for the purposes of the concept of ‘fair dealing’ the following points were taken into account: their use on screen was not over-long; and the use in the context of criticism and review had not been a contrivance merely to justify a use whose purpose was in substance not that of criticism and review.
In most cases, the copyright-holder will need to be approached prior to any use of the image that falls beyond the limited exceptions permitted by copyright law.
In its evidence to the Gowers Review of Intellectual Property,3 the National Council on Archives recounted the following story:
‘A local historian published a book with photographs all of which he had permission to use except for one, for which he was unable to find the copyright owner, although he spent considerable effort in his search. Deciding to go ahead without permission he had the book printed with the usual calls for the owner. Immediately the copyright owner demanded £20,000 for using his photograph without permission. The local historian had to pay a much smaller payment but had to pay.’
Getting the necessary copyright clearance can be extremely time-consuming. It is highly unlikely there will be any information about the author on the photograph itself. In the case of books and journals we have had internationally accepted identifiers for many years in the form of the International Standard Book Number and the International Standard Serial Number. But this is not the case with photographs, and it can be a tall order trying first to identify and then to trace the rights-holder.
Orphan works
The Gowers Review identified the problems relating to ‘orphan works’ – the term used to describe works for which a copyright-owner cannot be identified. Indeed, even if an individual or researcher is able to find some information about the author this may not be enough to identify the current rights-holder. When trying to trace copyright-owners for works that you wish to use, it is important to bear in mind that copyright is a property right. It can be bought, sold, given away or bequeathed in a will, so ownership can in theory change hands many times.
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DOS AND DON’TS
- The internet is NOT a copyright-free zone
- DO seek copyright permission
- DO acknowledge the source
- DON’T alter the image
FREE STOCK IMAGE COLLECTIONS
CREATIVE COMMONS IMAGES
NB. You should always check that the terms and conditions on the sites permit you to undertake the proposed use of the image, because they don’t all permit commercial use, for example; and there are a number of different types of Creative Commons licences.
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Gowers proposes an orphan works provision. This will make it easier for creative artists to re-use orphan copyright-protected works, unlocking previously unusable material.
Indeed, the Gowers Review made three recommendations with respect to orphan works:
- Recommendation 13: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC.
- Recommendation 14a: The Patent Office [which from April 2007 became the Intellectual Property Office] should issue clear guidance on the parameters of a ‘reasonable search’ for orphan works, in consultation with rights-holders, collecting societies, rights-owners and archives, when an orphan works exception comes into being.
- Recommendation 14b: The Patent Office should establish a voluntary register of copyright; either on its own, or through partnerships with database holders, by 2008.
It is important to bear in mind, though, that not all the recommendations set out in the Gowers Review are within the remit of the UK government to implement. Recommendation 13 is one such instance, because it is directed to the European Commission.
References
1 www.freepint.com/go/b84175
2 Wendy M. Grossman. ‘A picture paints a thousand invoices.’ The Guardian, 1 February 2007.
3 Gowers Review of Intellectual Property. HM Treasury. The Stationery Office, 2006.
Further information
TASI: Technical Advisory Service for Images (www.tasi.ac.uk .
Paul Pedley is Head of Research, the Economist Intelligence Unit.
Paul is launching a subscription service, Keeping within the Law, a monthly newsletter and web resource, in late spring (www.kwtl.co.uk), through Facet Publishing.
Paul has put together the programme for CILIP’s e-copyright executive briefing, ‘Is the UK’s intellectual property regime fit for the digital age?’, on 18 May, at CILIP HQ (www.cilip.org.uk/interests/execbriefings/
ecopyright/index.html). The event is aimed at public, academic and corporate librarians wanting to debate the issues with independent experts.
The information in this article does not constitute legal advice.