Homegrown | Image Rights: Who Bears the Risk? Recap
This month’s Home Grown session featured Pam Chestek of Red Hat. Pam is an intellectual property lawyer for Red Hat, Inc. who is responsible for the company’s trademarks and domain names and advises the company’s marketing function on content issues like model releases, inbound and outbound content licensing, and fair use. Pam was a great speaker and very knowledge about image rights. She shared with us the basic principles of copyright and image rights.
So when is an image or artwork considered copyrighted? Pam tells us at time of creation – everything is protected, however you need a registration in order to sue for copyright infringement. And what about public domain? You can’t be sure something is in the public domain unless it was published before January 1, 1923 (but a lot of other stuff is in the public domain).
When it comes to work made for hire, unless you are an employee, you are probably not creating a work made for hire. Work created by the federal government is not copyrighted, however the government can hold a copyright on works made for hire for them, i.e. they hired someone to create the work for them. So, be careful when taking images from a government website. Ask yourself, would the government have created this?
YOU AS THE USER
As a creative there are two side of the image rights issue: you as a user and you as a creator. Pam first discussed rights concerning you as a user. It is common practice for creatives to seek images for inspiration. There are no hard and fast rules for when inspiration becomes infringement. Pam explained that there are exclusive rights as an author (artist, designer, etc.): reproduction, distribution, and derivative works. When using images as inspiration, to avoid risking infringement by reproducing or creating derivative work, we need to ask ourselves, “How would I feel if it was my work and someone else created this?” Would you feel it was a reproduction or too close to your work that it was derivative? If the answer is yes, then you’d be wise to revise your work.
Another factor to consider when creating content is the risk of infringement by trying to capture the same look and feel of an image. This applies to a website design as well. You can use a site design as inspiration, but as with all sources of inspiration, you have to make it your own. You need to get far enough away from the original work to avoid it being an infringement.
TYPES OF RIGHTS
Next Pam went over the types of rights. Services like iStockphoto and Getty Images issue Express Licenses permitting you to use the image. You must read the terms of the license, be careful of the term. Can you produce derivative works using the image? Are you permitted to use the image on behalf of your employer or client? Do you have to give credit? What are the ramifications of not complying? There can be clauses in the term that prohibit some uses, such as printing the work on t-shirts.
Another type of license is the Creative Commons licenses. There are six types of Creative Commons licenses, all of which require attribution.
Flickr allows you to search images by their Creative Commons licenses. Some things to consider when using Creative Commons licensed images:
- Be careful of NC (non-commercial), ND (non-derivative) licenses.
- make sure that you’re really dealing with the owner of the copyright
- Is it from a site that looks like a content owner? E.g., real estate listing site probably doesn’t own the copyright in the photos shown on the site
- If you see the photo a lot of places, who is the owner? Know the source. Figure out the provenance of the image so you can trust the Creative Commons license.
Fair Use is a very specific type of license. Unless you’re doing editorial work you probably should not be relying on it as the reason why your reuse is acceptable. Fair use is what allows you to exercise your First Amendment rights. It is more liberal when the work is personal, but not when it comes to client work, especially if the work is commercial. Pam advises to ask yourself, “Did I take something of value (it doesn’t have to be monetary) out of the owners pocket by using the image?
YOU AS THE CREATOR (Contractor)
When concepting work we need to use imagery to tell the story. Should you clear the image used in concept work? Pan advises not to use the work if you don’t know how to obtain the rights to the image. You don’t want to show your client the image and have them fall in love with it, only to have to tell them later it can’t be used.
When it comes to deliverables of your work to the client, those are work made for hire and thus copyright ownership is transferred to the client. Be sure to carefully review the contract in terms of rights to the work. You should negotiate to retain the right to display the work in your portfolio, including your online portfolio.
Define what the “work” is in the contract. Be clear what the client can do with the work. Does the work include the native files, for example, a packaged InDesign file for a book layout, allowing the client to use that file as a template to create derivative works?
If using stock images in your work, be sure that the license extends to your client. Also, the contract should explain how the client can use any third party work.
You will find these two clauses in contracts. Warranties guarantee that the work doesn’t infringe upon any patent, copyright, trade secret, etc. Indemnification clauses shifts the risk of image rights to you, not the client.
When using images with people in them for commercial work, the persons need to sign a release giving permission for their image to be used. Don;t use any image of people if there is no model release. If using stock images, be sure the license includes a model release.
Sunstein Kann Murphy & Timbers LLP Copyright Terminations Flow Chart
Cornell University Copyright Information Center
American University Center for Social Media lists guidelines for fair use in a number of different types of works
Thanks so much to Pam Chestek for sharing her knowledge of image rights with us. It’s an important issue for all creatives, so this information is invaluable.For more of Pam’s insights, check out her blog, Property, Intangible, which is all about the ownership of intellectual property rights, including licensing. You can also find Pam on Twitter @pchestek.