United States: Can I Use That Photo? No. Yes. Maybe?

Businesses often have a need to make use of photographs as decorative art, for illustration, in connection with programs, events, or seminars, or for other purposes. For photographs not created by the respective business, the question arises whether photos from other sources can be used without first obtaining a license. The general answer is no. United States copyright law provides certain rights to the owner of the work of authorship that include the exclusive rights to reproduce, publicly distribute, and publicly display directly or through others. Before using a copyrightable work, it's therefore important to evaluate its respective copyright rights. This should happen regardless of where the work was found or how the work will be used.

For photographs, it's even more important to consider copyright interests. Photographs are generally going to be considered a creative work of authorship subject to copyright protection. The U.S. Copyright Office recently amended the regulations governing the application process for photographs to permit group registration of photographs. Under the final rule (37 CFR Parts 201-02), which took effect February 20, 2018, photographers can utilize an online application and refined deposit submission requirements to facilitate and increase the efficiency of applying for a copyright registration for multiple photos. Up to 750 photographs can now be included in a single claim. These processes will make it easier for photographers to enhance their rights in their photos (with a copyright registration), which, in turn, will increase the risk for third-party users that make use of such photos without permission. To avoid complications, particularly with copyright trolls that aggressively assert rights in photographs and often against innocent users, it's best for businesses to consider the following steps before making use of a third-party photo.

First, consider the copyright status of the work of authorship. Is it owned by another? Published? Check for a copyright notice, attribution, credit, or other indication of ownership or authorship. For online images, check the metadata, as online image files sometimes include information identifying the creator, copyright owner, or even applicable licensing terms. But keep in mind that a copyright notice for works published on or after March 1, 1989 is optional. So, the absence of a notice does not necessarily mean that a work can be freely used.

Second, consider the need to seek permission or a license from the copyright owner. Obtaining a license or permission from the copyright owner is the best way to confirm the ability to use a photograph. The contact information for the copyright owner may be found in the records of the U.S. Copyright Office, the associated ownership notice, or through the organization that published the image. Consider contacting the owner or author as far in advance of planned use as reasonably possible. Note that not all owners demand payment, but owners may want to know some specifics regarding the use, may work with an agent or service to facilitate, and may insist only upon limited use or certain conditions.

Third, consider available "public domain" sources. There are online repositories of photographs either available under broad (and royalty-free) license terms or not otherwise claimed as exclusive copyright property. Sources such as Wikimedia Commons, UnSplash, Flickr Commons, and others offer many free "public domain" images from all over the world. Although it's still worth considering the source and use conditions, these resources generally provide a cost-effective (and often free) way to find and make use of photographs without additional permission.

Finally, United States copyright law does provide for certain limitations on the exclusive rights available to a copyright owner. The concept of "fair use" is one of the more commonly known limitations. Fair use is the ability to use, without permission or license, a work protected by copyright. But it is a principle that applies only in certain limited circumstances, including for the purposes of comment, criticism, or teaching. Determining whether a use is "fair use" under copyright law is a case-by-case and fact-intensive inquiry. In general, four factors are considered in connection with a determination of fair use: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. Consequently, there is no formula for predicting with certainty a determination of fair use. So, it's best to consult an attorney before reaching any conclusion regarding "fair use" and to proceed with caution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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