Now that we all have high quality cameras in our pockets and access to stock sites packed with millions of images, creating or finding visual content should be a breeze. See a beautiful scene, and you can shoot it, edit it, and put it on a website, a commercial, or a product. Imagine a picture you want to use—whether it’s a beach in the Caribbean or the bottom of a mine shaft, and you can either make it or buy it.
But not always… because copyright affects image use in all sorts of unexpected ways.
Take the Eiffel Tower. Pictures of France’s iconic landmark appear everywhere. When you’re in Paris, you’re free to shoot it and you’re free to use those pictures as you want. But only if you shoot those pictures during the daytime. Take a photo of the Eiffel Tower at night, and while no one will complain if you put it on your Instagram feed, if you put those shots of the tower’s lights on something used for commercial purposes you’ll be in breach of copyright law.
Copyright law states that only the creator of a work has the right to sell, distribute or produce a work of art. That right can be sold or transferred to a third party and it continues to apply for a limited time after the creator’s death. In many countries that’s 70 years but it can be as much as 95 years. So if you invent a popular cartoon character, no one can legally put that character on t-shirts or lunch boxes and sell it without your permission, something which you’re only likely to grant in return for a royalty. After you die, your children, and even your grandchildren can continue earning those royalties.
The law applies to anything that you might make—cartoon characters, books, movies… even buildings. As Petapixel has pointed out, the copyright owner of the Eiffel Tower died in 1923, so images of the building entered the public domain in 1993. Now anyone can do what they want with the design of the Eiffel Tower. They can create replicas to sell on the streets of Paris, and they can create full-size copies to display in Vegas or in China. But the lighting design was installed in 1985 and as those lights are also considered artistic works, they can’t be reproduced without the permission of the copyright owner.
That doesn’t mean that if you take a picture of the Eiffel Tower at night and put it on your website, the tower’s operating company will hit you with a lawsuit. But they could—or at least their lawyer could ask you to take it down.
In principle this restriction would apply to any building that falls under copyright law. If you wanted to take a picture of the Gherkin in London or the Oriental Pearl Tower in Shanghai, copyright law would prevent you from doing so.
Clearly, that’s not realistic. People stand in front of sites like the Eiffel Tower at night and snap selfies all the time. So to bring the law into alignment with common practice, some jurisdictions have implemented “Freedom of Panorama” provisions. These state that it is possible to photograph and even use images of copyrighted artworks that are in public spaces. You can’t create and sell a model of a new building but you can sell a photograph of a city that includes an image of a copyrighted building. An online English language course could include a picture of the London Eye in its advertising without smacked in the face by a lawsuit.
But Freedom of Panorama varies from place to place. In the US, it applies to architectural works such as buildings but not to artworks such as statues or murals. Even across the EU, the provision can vary from country to country. France, for example, has no Freedom of Panorama provision at all… which is why you can’t take pictures of the Eiffel Tower at night, or I.M. Pei’s pyramid at the Louvre or a host of other modern French architectural works.
Some Buildings, Some Countries, Sometimes
The problem for users is that these laws are surprising, unpredictable, and unrealistic. It’s hard to imagine that anyone seriously expects people not to photograph what they can see on the streets of Paris or Italy, another country without Freedom of Panorama, even if they don’t try to sell those images. But because the law varies, what’s legal and acceptable in one country is forbidden in another and few people know which law applies where. No one, except a professional photo editor, is going to know whether the street scene they’re shooting or reviewing contains a building or an artwork that is protected by copyright.
It would be great to be able to say that realistically, image users and content creators can just forget about these complications because no one is going to enforce the law anyway, but there have been a few cases. The Swedish Supreme Court told Wikimedia Sweden to take down a photographic database of public artworks in the country after it was sued by the country’s rights management agency. An Austrian artist successfully sued a German company for using a photo of an Austrian building. So while enforcement is rare, it can happen.
Image users and content creators then do need to know the law, and they also need to know how the law is applied in the location in which they’re working.
One option is to be familiar with the broad picture. Freedom of Panorama applies to buildings in the US but not to relatively modern artworks that are still covered by copyright. Canadian copyright law is much more generous. It states that:
It is not an infringement of copyright
(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work
(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or
(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;
It even adds a protection for copyrighted works that appear “incidentally and not deliberately” in a photo. So take a picture of a Canadian street scene, and sell it in a gallery, and a painter can’t come after you if his mural appears in the background.
In the UK and Switzerland, Freedom of Panorama applies to buildings, works of arts, and even to public interiors. Much of the rest of Europe excludes interiors but includes buildings and public artwork. Russia and much of Scandinavia only let you use images of buildings, but Eastern Europe, Italy, and France have no Freedom of Panorama at all.
When it comes using street images then, check where it was taken and whether that jurisdiction has a Freedom of Panorama exemption. Or buy from a reputable stock company.
And if you think copyright is complicated for street photography, it’s even more complex when it comes to pictures of people.
Shoot All the People
Henri Cartier-Bresson’s Behind the Gare Saint-Lazare is one of the most famous photographs in the world. It shows someone trying to leap over a giant puddle. The jumper is reflected in the water and mimics the dancers that appear in a poster behind him. Debris on the ground makes curving patterns in the water. We can’t see the face of the person doing the jumping but we do get an idea of a decisive moment on a Parisian street in 1932. It’s also an iconic example of street photography, the practice of photographing people on public streets.
But just as there are restrictions on the use of images of buildings—and those restrictions are usually unclear—so the law also has rules about how to use photographs of people.
In general, you can expect a right-to-privacy law to prevent you from using someone’s likeness in an image for commercial purposes. So you can’t take a picture of someone on the street and use it to create an advertisement. And you can’t take someone else’s photograph from their social media stream and use it to support a brand.
That hasn’t always been clear. Social media’s encouragement of sharing and reposting has led a number of brands to use other people’s images without their permission. One of the most troubling cases took place in 2007 when Australia’s Virgin Mobile phone company took an image from Flickr and used it on a billboard. The photo showed 16-year-old Alison Chang of Texas waving a peace sign at a church car wash. The picture had been taken by her youth counsellor. Across the photo was Virgin Mobile’s campaign slogan: “Dump your pen friend.”
The youth counsellor had uploaded the photo using a Creative Commons license, in effect applying a copyright waiver. That didn’t stop Chang’s family from suing for libel and invasion of privacy though. They lost on a technicality, and brands have occasionally been helping themselves to public images ever since. In 2015, Crocs helped itself to a photo of a small girl wearing a green dress and pink Crocs, only requesting permission from the photographer, the girl’s mother, after they had republished the photo, according to The New York Times.
But they’re taking risks. Laws do prevent businesses from using recognizable images of people in commerce without their permission. Stock images that contain pictures of people come with model releases—consent forms signed by the people in the picture. Without those regulations, any business could take a picture of a movie star and use it in their advertising without paying the celebrity an endorsement fee.
So if you saw someone interesting in the street and wanted to take their picture to use in support of your brand, you’d need to ask for their permission and have them put that permission in writing. And if you saw an image you liked on social media, you’d have to ask not just the photographer for the right to use their photo but also the person in the photo for the right to use their image. Selfies are easy; portraits would take a bit more work and likely more expense.
But what about non-commercial use? You might not be able to take someone’s photo on the street and use it without their permission in an advert for a contraception, for example, but can you use it in an artwork? Could Henri Cartier-Bresson’s puddle-jumper sue the photographer for making him famous?
Such a case was fought in the United States. In 1999, photographer Philip-Lorca diCorcia set up a camera in Times Square, placed strobe lights on scaffolding on the other side of the street and took random photographs of people who passed by. After two years, he included a selection of those street photographs in an exhibition called “Heads.” Visitors could buy copies of the photographs and they could also buy a catalogue that included all of the images. He didn’t ask the permission of anyone whose images he sold.
One of those people was Erno Nussenzweig, a retired diamond merchant and Orthodox Jew. Nussenzweig felt that displaying the photo was a violation of the Bible’s commandment against the making of graven images. He sued for diCorcia and the gallery for violating his privacy rights. He demanded an injunction to halt sales and publication of the photograph, $500,000 in compensatory damages, and another $1.5 million in punitive damages.
The New York Supreme Court dismissed the claim, arguing that the right to artistic expression was more important than the right to privacy. The ruling followed precedent. Other cases cited in the case included a woman who had sued a photographer who had used her image in an artwork entitled “It’s a Small World Unless You Have to Clean It.” They also included a 1982 ruling in which the subject of a photograph had sued The New York Times after his picture had appeared on the cover of the magazine to illustrate an article called “The Black Middle Class: Making It.” The subject had disagreed with the article and protested that he hadn’t provided his consent. In those cases too, the right to privacy was deemed less important than the right to free expression.
But those rulings only apply to art, not to commercial use. Creative types who want to publish their artworks have a lot more freedom than creative workers who want to use photographs to promote products. And it’s notable that brands themselves have more protection than people do. When Virgin Mobile Australia swiped the photo of Alison Change, they might not have asked her permission, but they did take the time to remove the Adidas logo from her hat. That’s a standard move in stock imagery, where books are shown without cover images, titles or authors, and mobile phones have their logos removed in Photoshop before being uploaded. Brands have lawyers.
Creative workers depend on photography. They now have a wider choice of images than ever before. They can easily take their own pictures. They can access the millions of images uploaded every day to social media sites. And they can browse legally accessible libraries of stock images available for reproduction and that come complete with model releases.
Although the Internet can feel like the Wild West, and lawsuits against image users often fail, no one wants to have to face a law suit and fight in court. When you’re using street imagery, know whether you have permission to use an image of that building in that location. If you’re using a photo of a person in a commercial setting, make sure that they’ve agreed. And if you’re including a brand logo in an advert, make sure that the brand pays you.
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