When to Pay for Copyright Permissions

I have been asked a lot recently about when an author needs to get permission to use a photograph or other imagery in their book, website, or other marketing materials. I have written about this before, but here is a bit more detail.

Copyrighted Photographs

If a photograph is copyrighted and it is clear who the copyright owner is, you simply seek permission from the copyright owner who may ask for royalties: for example, the Associated Press has a gallery of images it owns and contact information for how to obtain permission to use them. Designers and artists who release images of their art on websites like Shutterstock or iStock also release the art complete with license terms for use.

If you do seek a license, you need to be clear with the copyright owner about exactly what uses they are giving you and how much they are charging for those uses. For authors who want to reproduce an image in a book, for example, questions will arise about whether the license is limited to first run printings. If so, a new license would be required for second or subsequent printing runs. Is the license limited to a certain number of books printed before a new license is required? Is it limited to the hard cover or first edition, in which case a new license would be needed for softcover or electronic editions, or future editions. Is the license limited to black and white reproductions or would it allow you to reproduce the image in color? Does the license limit the size of the image you can use?

These are all matters of contract law. You may want to check in with a legal professional if you are confused, although generally these licenses are pretty simple and it is usually easy enough to understand the scope of the license you are being offered without anyone else’s help.

If you use images from Shutterstock or iStock or other online repositories of information, particularly those that utilize creative commons licenses, you probably will not have to pay very much to use an image, even if you want to use it widely for marketing purposes: on a website, business cards, etc. Again, this is all a matter of contract law. A creative commons license is basically a simple contract telling you what you are allowed to do with the artwork under what terms.

Bear in mind that when you are paying these inexpensive creative commons license fees, or getting a license for free, you are unlikely to have an exclusive license. In other words, other people can also have the same license in the same image. You are unlikely to be the only person using the image on your website, business cards, or book cover.

What about fair use?

“Hang on a second,” I hear you say. “What about fair use? What if I’m using the image to illustrate a point I want to make in my book for educational purposes?”

It would be nice to be able to say that any educational or critical use of someone else’s imagery, or any use made to illustrate a point you are making in your book, is a fair use, but unfortunately the American law here is a little blurry around the edges. The idea behind our concept of fair use is that it is supposed to be flexible and courts are supposed to consider a number of—well, technically four—fair use “factors” to decide if any particular use is a fair use. These factors include whether you are using the copyright work commercially, which you typically are if you are using it in a published book or on a website to market your work.

Many uses authors make of other people’s photography and imagery are probably fair uses, but if you are working with a commercial publisher, they will likely insist that you obtain a license to avoid any hint of liability on their part. So then it will be up to you. Do you decide to get a license and pay for it (because your publisher will not likely reimburse you), or to push for fair use and see if you can convince the publisher to agree? Or do you publish your book without the image? That’s a risk assessment each author has to make.

Public Domain Images

What if the photo or image you want to use is in the public domain? That means no one owns copyright in it because it either predates copyright or its copyright term has expired. This is usually the case for older images and photographs. However, more recent imagery may well be copyrighted and it is worth trying to figure out who holds the copyright and how to arrange for a license to use the imagery, or to claim fair use.

Sometimes a museum or other organization will charge you for using its own photograph of a public domain image or artwork. Technically, if the photograph is a faithful reproduction of the original work without significant enhancements, the organization cannot claim copyright due to lack of “originality” under copyright law. However, organizations that do take their own photographs of public domain work may not release the digital files to you unless you pay them. They may attempt to use contract law (asking you to pay money for release of the file) in place of copyright law, claiming a right to payment through a contract with you.

While this all sounds very technical, it leaves you with a simple decision. You can either pay them for their version of the photograph or, more easily maybe, find an alternate version of the photograph from a public domain source, often online. Given that no one can claim copyright in a faithful reproduction of a public domain work, taking those kinds of images from the internet and using them in your work is typically not a problem. You are not in breach of contract if you never signed a contract and you just found the image somewhere else!

Bear in mind that none of this changes the general rule that stuff you find on the internet is not automatically free for you to use without infringing copyright. It is only if the work you find online actually is in the public domain that you can use it without fear of a copyright infringement lawsuit. If you are unsure whether the work is in the public domain, you might consult a lawyer or other copyright expert.

Copyright permissions, fair use and the public domain are difficult issues, but an ounce of prevention (in terms of a basic understanding of the concepts) can be worth a pound of cure down the line, given that copyright infringement litigation can be costly and the damages awards can be high.

And note as always that nothing in this column is intended as legal advice; if you do have a problem involving digital imagery, please consult a legal professional or other expert.