Understanding Public Domain, Fair Use and Copyright of Photos

I recently received this question pertaining to copyright of online images:

Question: Have you done or could you do a comprehensive article about copyright pertaining to Artworks/photographs? Should be about copyright more extensively, type of use, public domain of art/photographic works, etc.?

I think most understand about copyright, but still in this digital world a lot is taken from the web and altered, or whatever and then we see it available for prints (and most of the time with no recognition to the artist/photographer OWNER of the work. It will be under some one else's name. Not legal!

Or if a photo or artwork is altered enough does that make it legal for other uses? Whew! Plus what are the procedures to get certain uses, or find what may be in the public domain?

Before I discuss this, I should give the necessary disclaimer:

Disclaimer: I am not a lawyer and this article is not meant to give legal counsel regards to use of copyrighted images. If you are unsure of something, please consult a lawyer before using someone else’s photograph.

Fair Use of Photographs

Fair use is a legal term referring to the use of a copyrighted work under certain circumstances, such as for the benefit of the public. There is a four factor test to determine if a photo can be used under the fair use doctrine: Purpose of use, type of work, amount used, and market effect. Such cases would be in a classroom environment, where the image is used as an educational resource.

For bloggers and website owners, the image can possibly be used in review or tutorial posts (screen captures), as a way of illustrating the post – or it could be used as a desktop background, only to be seen by yourself.

Sara Hawkins of Social Media Examiner has a much more thorough discussion of fair use and using copyrighted images: Copyright Fair Use and How it Works for Online Images

My own opinion with regard to fair use, is to use only images which the owner has explicitly given permission to use. The legal owner still has the right to sue if they do not like their image appearing somewhere without permission. It will be much better to get written permission first than end up in a legal battle, and having to plead your case.

Public Domain Photos

Public domain photographs are photos where the copyright has expired or the owner has explicitly proclaimed the image as public domain. These are completely safe and free to use for any purpose, even commercially. When searching for public domain images to use, make sure you read the notice beside it. Many times the creator of the work may have specific guidelines for use, which may include a photo credit or notifying them of use. In these cases the photo is not always public domain, but may fall under one of the following licenses.

Creative Commons Licenses

Creative commons allows artists and photographers to publish their work under special circumstances. There are different creative commons licenses, according to the level of copyright security the owner places on it. They are also great for finding images that the owner has given permission to use.

There are 4 basic licenses:

1. Attribution – The image can be used if giving the owner proper credit.
   
   
   
2. Share-alike – Derivative works can only be created with an identical license. This means that if you use a share-alike licensed photo to create an artwork, the result must be shared under the same license.
   
   
3. Non-commercial – The image is only to be used in non-commercial ways. The user should not make money from the image.
   
   
4. No Derivative Works – Copies of the image are permitted to be shared, but not derivative works – Photoshop manipulated images, for example.

These can be used in combination, such as Attribution + Sharealike or Attribution + Non-commercial + No Derivatives. It is important to note that all creative commons licenses have the attribution label. So, to share a photo without giving credit, you will have to use a public domain photo – or purchase a photo license.

Also, a derivative artwork using a creative commons photo will still require a credit from the original photographer beside it.

How to Properly Credit a Photo

• Look for specific guidelines from the author. If he/she requests that a certain notice be included, this must be placed beside the image.
• Mention the name or username of the owner. It is also ethical practice to link to that person’s profile or website.
• State the title, and link to where it appears at the owner’s profile or website.
• Mention the particular Creative Commons license, and link this to the page with more information about the license.
• If the photo has been changed, or is a derivative, mention this.

 

Where to Find Free Photos

There are many places on the internet to find free to use photographs, even those that are in the public domain. Use this article as a start: Royalty Free Stock Images 

Also, a search using Google will help in this case.

Use these search terms:
public domain photo websites
creative commons websites
free stock photos for websites

Always Assume Photos are Copyrighted

If you look around the internet, you will see many people not going by these guidelines. Easy sharing of photos through social media often results in the original author being lost. Sometimes it is impossible to find out who has created a certain image.

The general rule in these cases - if you cannot find the original copyright owner, assume that the photo is copyrighted.

And for those who post images online, I recommend always including a watermark or copyright message on the image itself.

Artpromotivate has more articles about copyrighting, which may be of interest to you.

Free Watermarking Tools
How to Protect Images
Check for Stolen Photos Using Google
Someone Stole my Photo – What to do Next

I hope I have helped you understand the issues pertaining to copyrighting of images more fully. If you have anything to add, please do so in the comments.

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