Written by Susan Neuberger Weller
In a number of recent cases, individual photographers have successfully sued third parties for unauthorized reproduction and use of photographs, particularly those from stock photography sources. Courts have found third party liability for willful and innocent copyright infringement for the use of individual photographs and have awarded damages to copyright holders based on such conduct. Generally, professional photographers offer their photographs for use by third parties through professional stock photography agencies that negotiate licenses for use of the photos on behalf of the photographer.
Stock photography is big business as evidenced by the Carlyle Group’s recent bid for Getty Images in a deal that could be worth close to $3.5 billion. There are many online stock photography sites on which thousands of photographs can be viewed and used for a fee. On some sites, there are a few photographs that can be used for free. The use of stock photographs can be much less expensive than hiring a professional photographer to take photographs for a particular purpose.
But what about sites on which there are photographs not taken by professional photographers, such as Pinterest? If these photographs were placed online by the individual who took the photograph, and there are no restrictions on the ability to print it out and/or copy and paste it elsewhere, isn’t it okay to do either of those things? The answer is “no,” because to do so without the express permission of the copyright owner would constitute copyright infringement. By posting a photograph, a photographer of any type does not impliedly give permission for anyone to use it. So how do you know if the photograph is protected by copyright? Just assume that any published photograph taken after 1923 is currently copyright protected.
What does “copyright protected” mean? Copyright protects any “original works of authorship fixed in a tangible medium of expression.” It is not necessary to obtain a copyright registration for the protection to exist nor is it necessary to use a © or other copyright notice for a work to be protected by copyright. Copyright protection exists from the moment a tangible work, such as text, music, drawings, photographs, and other types of works, is created. The individual who physically creates the work is considered the owner of the copyright, unless he or she creates the work as part of his or her employment responsibilities, in which case the employer automatically owns the copyright. Copyright owners enjoy certain exclusive rights with regard to their copyrighted works including the right to reproduce the work in whole or in part, to publicly display the work, and to create derivative works based upon the original copyrighted work. In order for there to be copyright infringement, the infringer must have had access to the original copyrighted work and then committed an infringing act. Thus, seeing a photograph on a website and then copying and pasting that photograph somewhere else, without obtaining the permission of the owner of the copyright in the photograph, in most instances will constitute copyright infringement.
So, just because you can copy a photograph doesn’t mean you may copy the photograph. Getting permission to use someone else’s property, including their intellectual property, is always the best course of action.