By Scott D. Butcher, FSMPS, CPSM
Wouldn’t it be great if you needed a photograph for your website, blog, social media post, proposal, or presentation, and you could just hop online and find the exact image you wanted? Perhaps you could go to Google Images and do a quick search for the type of photograph you were looking for. Dozens – perhaps hundreds – of options would pop up, and you could take your pick of the cream of the crop.
Does this sound too good to be true? That you could simply search for a type of photograph online, and then download and use the photo for your or your company’s purposes? Or does that sound like your everyday workflow?
Guess what: it is too good to be true. You simply cannot legally do it!
And yet the misunderstanding of basic copyright law seems to be extremely prevalent. In just the past few weeks I’ve had to “educate” a number of industry colleagues about the law!
Copyright law can be confusing, and there are layers of complexity, but here’s the most simple rule to consider:
If you didn’t take the photo, you can’t use it.
Of course, there are exceptions: perhaps a coworker took the photo. Or you hired a professional photographer to take the photo (and you have the proper usage rights – more on that in a bit).
Yet something like three zillion users of the Internet feel that it is okay to use any photo they find online. (I may be rounding up.)
Most people understand that if an artist works hard to create a watercolor or oil painting, and posts a photo or scan of it online, it cannot be reused without the artist’s permission. And the majority of people also understand that they can’t surf to a website, copy the text, and paste it into their own website. These are both blatant violations of copyright law.
Likewise, if an architectural firm uploads a rendering of a building they are designing, people seem to understand that they can’t use that rendering on their own website. (The architectural works themselves also enjoy copyright protection, but let’s save that for another post!)
However, the exact same thing applies to photography – which is no different than other types of artistic expression.
The person (or people) who create the “art” – referred to as the author – owns the copyright to it from the moment it is created. According to the US Copyright Office, the following works are protected:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings, which are works that result from the fixation of a series of musical, spoken, or other sounds
- Architectural works
No copyright symbol is required! So no “©”, “(c)”, or word “copyright” is necessary. It is implied. Don’t fall into the trap of believing that just because there is no copyright symbol that the image is free for you to use. Use of a copyright notice ceased being necessary in 1989.
Furthermore, only the legal holder of the copyright can decide whether or not a work (in this case, a photo) can be reproduced. So if you are at an art show and purchase a print (stand-alone, matted, framed, on a notecard, etc.) and scan it or photocopy it, you have violated copyright law. If you upload your scan to LinkedIn or Facebook or a website, you have violated copyright. If you pull out your smartphone and take a photo of it, you have violated copyright – in fact, a picture of you holding the work is a copyright violation because it is still a reproduction.
Of course, there are exceptions. One such exception is known as “work for hire.” If an employee is working on a project, and they visit a project site and take photos, the copyright for those photographs may belong to their employer. (This is where the layers of complexity come in – was the photo taken on “company time” using “company equipment”? Or was the employee using personal equipment? Was the purpose of the visit specifically related to the project, or was the employee driving by on a Saturday afternoon and hopped out of their car to take a photo?)
If you hire a professional (or amateur!) photographer to photograph a project, you very well may not own the copyrights. If you have an agreement signed by both parties stating that the photography is being performed as “work for hire,” then you are able to clearly establish who owns the copyright. Likewise, after photographs are taken, the photographer and another party (like your company) can agree, once again in writing and signed by both parties, to transfer the copyright.
But unless these steps occur, the photographer owns the exclusive copyright to the images. At that point, usage rights are typically granted. The photographer may grant unlimited rights, meaning that you can reproduce, in print or digitally, the images as you see fit. Other times limited usage rights are granted. For instance, you can use the photos in brochures, but not online. Or in brochures and online, but not in magazines. Or in magazines with regional circulation, but not national circulation.
So even though you hired a professional photographer to take photographs of your firm’s project, you may not be allowed to actually use the images for everything you think you can. Always defer to your contract! The lack of clarity here limits what you can do. Unless your rights are spelled out, assume that you don’t have usage rights.
If the photographer grants you rights to use the photos in a variety of print and digital applications, you still have no rights whatsoever to allow others to use those photos. Only the copyright holder can do that. So if you are with an architectural firm, and you give photos to the engineers who worked on a project – or even your client – remember that only you have been authorized to use the images. The engineers and client need to negotiate directly with the professional photographer – the copyright holder – to obtain usage rights. And there’s typically a cost associated with it. (Which is only fair to the photographer / copyright holder.)
How many photos are on your mobile phone? If you are like most people, there are thousands of them just sitting on your camera roll. Guess what? You own the copyright to every one of those images! (Assuming you were the “author” – or photographer – of all the images.) You get to decide who can use them and how they are used: that is a right granted to you as copyright holder!
Although copyright law affords many legal protections to photographers, proving violation of copyright can be a difficult task. It helps to register your copyrights with the US Copyright Office. Most often, photographers whose copyright has been violated simply ask the offenders to remove or stop using the photos in question. (This is typically done via a cease and desist letter.)
Finding Images to Use Legally
So what are you to do?
First, use photos that you – or your firm – has taken. You own the copyright to those, so no worries! Likewise, use photos for which your firm has been granted usage rights. These will be the ones that you commissioned a photographer to take; just be sure that you have usage rights for the intended purpose.
Second, use a stock photo gallery like Adobe Stock, Shutterstock, iStockphoto, Getty Images, or another. There are actually a number of free stock photo galleries online, although their selection is somewhat limited.
Third, look for Creative Commons-licensed photos. Surf to Creative Commons, where you can search image databases from Google Images, Flickr, and more. Alternatively, you can surf to Google Images, and select “Tools” from the menu. Next, select “Usage Rights.” Look for ones labeled for reuse or reuse with modification. The noncommercial reuse option will not apply if you are looking to use the images for your company (that’s a commercial use).
Another great source of Creative Commons-licensed images is Wikimedia Commons. Some photographs and graphics can be used without attribution, but others require some sort of acknowledgement to the copyright holder.
But Wait … There’s More
I’ve spoken with many A/E/C marketers about photos they use on their firm’s website and/or in social media. Sometimes I ask if they have permission from their clients to use the photos – or even use the clients’ names on their websites. Often I’m told, “Oh no – our philosophy is to ask for forgiveness if the client sees them and doesn’t approve.” (I’ve heard this many times.)
Is it worth the risk of potentially damaging – or destroying – a relationship here? Perhaps you work for governmental agencies, or defense contractors, or manufacturers, or technology companies. Clients often require that your firm sign an NDA (Non-Disclosure Agreement), and posting photos would be a clear violation of the agreement. There are legal ramifications here, not just the potential loss of a client.
Just because your client allowed you to photograph their project doesn’t mean that you have permission to post the photos on your website – or use them in your brochures. Always get client permission in writing. I’ve got a ton of great project photos that I’ve taken over the years that the clients have specifically instructed my firm not to use in marketing materials.
There’s a running joke around our office about how it’s easier to get the Federal government to allow us to use photos of their facilities than it is to get chocolate processors to allow us to share images taken inside their plants! In fairness, the chocolate processors (and manufacturers in general) believe that their processes provide a competitive advantage, so they don’t want to give their competitors a peek into their operation!).
Copyright Violations Here, There, and Everywhere!
As a photographer, I’ve had my copyrights violated countless times. Sometimes I’ll surf to a website only to be shocked to find my photos staring back at me. It really doesn’t matter if you credit me or not – if you don’t have my permission, you can’t use my photos!
There have been times that I’ve granted usage rights for images for a specific purpose, only to find the photos being used for other purposes. A lot of times this happens when someone obtains my digital images, stores them on their local server without any notes, and someone else comes in and just starts using them – a common side-effect of staff turnover.
Once I was driving down the road and stopped at a stoplight. Imagine my surprise when I looked out my driver-side window and saw a sign with eight of my photos on it! I had never even spoken with the sign company, and they had managed to steal eight of my images off the Internet to use for their own purposes! When I contacted them, they explained that they truly thought anything on the Internet was free. I told them they had to take down the sign or compensate me. They wanted to do neither, so we negotiated that they would add my name and website to the sign. For the next few years I had so many people tell me they saw my name and photos on the sign, because it was located at a prominent intersection. (And then a drunk driver plowed through the sign, and that was the end of it!)
So here’s a good rule: Maintain an image database with very specific information about usage rights – as well as client permissions. If a client allows you to use a photo on your website or in your collateral, get it in writing. It could be a letter or an email, but make sure you save it. Oftentimes there’s staff turnover, and you can suddenly find yourself in hot water with a client because a predecessor granted permission that their successor didn’t’ think should have been given! At least you can cover your butt! Also note which image copyrights are outright owned by your company, because they were taken by staff.
You Can’t Take that Picture! Or Can You?
If it is not obvious by now, project photography is like an onion, with many layers to be peeled. Beyond the copyrights and usage rights, there are also personal and property rights.
If you or your photographer is standing in a public space, feel free to shoot away. There can be no expectation of privacy. If you are on a public sidewalk, roadway, park, etc., you’re free to take and publish photos. Thus, if your client says that you can’t take photos of their project, but you can stand on a public sidewalk and take a photo, you are legally allowed to do so. (Just remember not to piss off your client in the process – taking the photo and using the photo in marketing are two very different things!)
I’ve written and photographed a number of architectural-related books. Sometimes when I’ve been photographing a building from a street or a sidewalk, an irate building owner or homeowner has approached me to ask what I was doing. I actually experienced the whole “good cop – bad cop” scenario from two security officers at a Federal courthouse once! They threatened to take my camera or SD card, and I explained to them what I was doing and politely shared my opinion (a fact proven by courts, but I didn’t’ want to be argumentative) that it was perfectly legal to take photos of buildings, including Federal buildings, from public spaces. They let me go.
Google Street View takes maximum advantage of this. Their cars drive up and down public streets taking images of everything. And then they publish the photos online. Look up your address in Google Maps and pull up street view. Heck, pull up your home address on a real estate website and an image of your house will probably pop up! Drones and satellite imagery have taken things to a whole new level, because now you can peer into backyards and courtyards – places that may not normally be visible from a public space.
However, with interior spaces, there is an expectation of privacy. You need permission to take the photos, and permission to use the photos. These permissions usually come in the form of a property release. There are forms you can download, but a simple email will suffice as well. When your client gives you approval to use a photo of their lobby on your website or in your marketing collateral, they are informally giving you a property release.
Just don’t include people. I realize that there is a trend in project photography to include people, and I’ve actually received RFPs specifically stating that people using the depicted space must be included. However, you cannot do this without obtaining a signed model release from each and every person who is clearly recognizable. It’s common to do this in schools. School districts and colleges like to see students interacting with spaces. But if any student is recognizable, you cannot use the photo without having a signed release – and in the case of minors, the release needs to be signed by a parent or legal guardian. The school cannot give permission. Thus, if you set up a camera in a cafeteria and students are eating, you cannot use the photo without a bunch of signed releases! If twenty students are recognizable and you obtain nineteen signed model releases from parents, you still cannot use the photo. (You can, however, blur a face to make it unrecognizable, or download a photo from a stock gallery and swap heads.)
I’ve seen this play out in manufacturing facilities and offices as well. I avoid including people, or try to press the shutter when they are not recognizable – perhaps their back is to me, or they are in motion and their face will be blurred. I’ve had companies specifically state that photographing union employees would violate their agreements.
Professional photographers understand this. They may even have models who work with them – for a nominal fee, they will come and occupy a space, then sign a model release. But if you’re taking the company camera or pulling out your cell phone to get the picture, you probably aren’t aware that you need a model release! Professional photographers also carry model and property release forms with them everywhere they go.
Of course, there are exceptions to every rule. If you are photographing a building exterior and people are walking by, you don’t typically need a model release – so long as the photo is of the building and the people are incidental. If you take a close-up photo of a person with the building in the background, get a model release. Once again, if you are in a public space – a sidewalk, a street, a public park, you can have no expectation of privacy, so photographers can shoot away.
Stop! Don’t use that Photo!
Circling back to where we started. Do not use that photo in your brochure, on your blog, in your presentation, or in a social media post unless you are sure you have the rights to use the photo! And permission from your client!
Worst-case scenario, you could be fired and sued. Most likely, it won’t come to that, but you could still have some “‘splaining to do, Lucy” with the copyright holder and/or client. If you are an A/E firm, you’re probably pretty protective of your drawings and renderings. You don’t want your copyrights to be violated. So don’t turn around and violate others’ copyrights!
The Outlier: Fair Use
Having stated all that, there’s something known as Fair Use, which allows you to use copyrighted photos without permission, under certain circumstances: criticism, comment, news reporting, teaching, scholarship, or research. (But not marketing!) So if you are meeting with a client and you want to talk about façade options, you can pull images from manufactures’ websites to use, because it is research. In fact, you could probably, legally, include photographs you find in Google Images that demonstrate your point or provide knowledge or research for your clients. And I’m personally of the belief that manufacturers would like you to include their images in presentations because they want you to spec their products!
Educational presentations offer a unique challenge, and I’ve actually struggled to find clarity here. If I am giving a presentation that is not to advance my company, nor am I being paid to give, would using others’ images be considered fair use? I’m essentially being a teacher. Unfortunately, most of the research I’ve done leads me to conclude that this context could still be viewed in a commercial use, so I use my personal photos, company photos, stock photos, or Creative Commons-licensed photos to make sure I’m staying on the right side of copyright laws!
And finally, my CYA statement: I am not an attorney! These recommendations are based upon research and personal experience – not just related to my firm, but also for commissioned photography work that I’ve performed as well as working with several publishers and providing photographs for books.
For More Information
- Copyright Basics – US Copyright Office
- Best Practices in Commissioning Project Photography – AIA/ASMP
Connect with Scott
- LinkedIn: https://www.linkedin.com/in/scottdbutcher
- Twitter: https://twitter.com/scottdbutcher