When Your Photographs Could Violate Copyright or Trademark Law

Photographers must be mindful of the contents of their images.

Under U.S. law, photographers ordinarily own the copyrights in their own photographs. Like with any content creator, the Copyright Act of 1976 grants photographers certain exclusive rights over their creations. These include, for example, the exclusive right to copy or distribute their work.

But sometimes, a photograph may include someone else's protected work. Consider, for example, a photo of someone else's painting, drawing, or cartoon. And beyond the copyright context, trademarks owned by a business can present issues. Can you take a photo of a corporate logo, notwithstanding the trademark? Photographers must consider the effect of including a third-party's intellectual property in your photographs.

Photographs of Third-Party Copyrighted Images

There is no doubt that, as the photographer, you own the copyright in any photos that you take (even if you never formally register them with the U.S. Copyright Office). But imagine that you take a photograph of a painting, and then try to sell your photograph. The painter might not be so pleased; after all, she holds the copyright to her painting, and 17 U.S.C. 106 gives her the exclusive right "to reproduce the copyrighted work" and "to distribute copies... of the copyrighted work to the public by sale or other transfer of ownership." The painter would likely have a good argument that you are infringing on her copyright.

How might you defend against such a claim? Your best defense would be that your photograph qualifies as "fair use" (a common defense to copyright infringement). Courts will look at four factors in determining whether or not a particular use of a copyrighted image is fair:

  • 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 of the portion used in relation to the copyrighted work as a whole, and
  • the effect of the use upon the potential market for or value of the copyrighted work.

As you can imagine, your argument for fair use would be weakened if you are directly photographing the painting to profit from unauthorized reproductions (such as posters, cards, and the like). Your argument for fair use would be strongest if, for example, you were photographing the painting in order to show a portion of the image in an art history textbook that offers commentary or criticism. In that situation, you would be using only a small portion of the copyrighted work, and it would not have much of an effect (if any) on the market for the work.

To avoid a dispute with a copyright owner, it is best to seek written permission before photographing the work, if you believe that your photograph may visibly include it. While this strategy is not always possible (depending on the location of the work), asking for permission can innoculate the copyright owner against the shock of seeing his or her work reproduced in a store or on a website.

Photographs of Third-Party Trademarks

What if instead of taking a photo of a copyrighted work, such as a painting, you photographed a corporate logo? Such a logo would likely be protected through federal trademark registration.

A trademark gives its owner the exclusive right to use certain words, slogans, or images in commerce as a signifier of the source of goods. Trademarks are often registered with the U.S. Patent and Trademark Office, conferring nationwide protection.

A trademark owner would not be happy with the idea that an unaffiliated person is selling calendars, T-shirts, or other products with its trademark. In other words, the mere fact that you photograph a trademark does not necessarily give you the right to take that image and reproduce it. This is particularly true if you intend to sell the items onto which you reproduce the image.

Using a trademark is asking for legal trouble, particularly if the trademark is owned by a major company that is likely to police and enforce its mark.

Examining Your Photographs Carefully

Most photographers are not spoiling for a legal battle with copyright or trademark holders. So while the fair use arguments above might be helpful if you do find yourself in a confrontation, your safest approach is to spend a few seconds examining your photographs for potential intellectual property that belongs to a third party before you broadcast or sell your images.

As you do, consider how that third party would feel and react upon seeing your photo. In most cases, you can probably work to reframe or remove the infringing content from your images so that you avoid potential conflict.

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