Can I Use This Photo?

Is This Photo Mine?

By Andrew Hudson

"I took a photograph while (at a workshop, at school, working, traveling). Can I use it?" "I found an old photo, can I sell it?" "Is it legal to copy a photograph that was sent to me in an email?" "Can I use an old photo in my artwork?"

Whether or not you can use a photo depends on three things: the photographer, the subject, and the use.

If you took the photo, the subject is something benign, and you'll be using the photo privately, then you're fine. If not, then take this simple, three-step test.

1. Did you take the photo?

• Yes. If you pushed the shutter-release, then the photo is yours, as copyright is automatically assigned to the creator. Proceed to question 2.
  (Note: If you were hired, paid or employed to take the photo, you may have signed a contract relinquishing the copyright to your employer, in which case proceed to the "no" answer).

• No. Then you're limited to private use, unless the photographer has provided express permission (a written license detailing how you can use it) or the photograph is in the public domain (e.g. taken before 1928 in the U.S.). This applies even if there's no © symbol or contact information. If you own a print of a photograph (such as a postcard or poster), you can sell the actual print (the tangible item) but you can't sell copies of the photograph.

2. Is possession of the photo itself legal?

• Yes. It's a silly question really, I just have to cover it. Proceed to question 3.

• No. If the photograph was stolen or the subject itself is illegal to possess, then you're at the wrong Web site. Game over.

3. Does the photo NOT include as a significant element a recognizable: person, celebrity, artwork, logo, trademark, cartoon character, professional sporting event, or view from a paid entrance?

• Yes. Congratulations, you have full reasonable use of the photo. Yes, you can use it, publish it and sell it.

• No. Then you're limited to private and "fair use" (generally educational, newsworthy but not money-making or malicious use). So you could probably post the photo on your Web site (as long as the subject is not private or embarassing, and the display is not false or misleading). But you can't sell it as stock photography or use it on the cover of a product ("commercial use"). To do that, you'd need a "release," a written contract with the property owner. In the case of people, this is called a "model release."

Relevant Laws

If you failed at question 3, here are the laws that apply:

Relevant Laws
People, including celebrities	Privacy, Publicity
Artwork (inc. photos, paintings,murals, statues)	Copyright
Logo	Trademark
Distinctive cartoon character	Copyright, Trademark
Professional sporting event	Privacy, Copyright, contract, and Trespassing
Private view (paid admission)	Privacy, Trespassing
Buildings	Trademark unfair-competition
Text	Copyright, Trademark

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