What is copyright?
Copyright is a form of intellectual property protecting creative works, including images. In the UK copyright arises automatically; it is not necessary to register.
Who owns copyright?
As the author of a photograph the photographer owns the copyright – this applies equally to commissioned and noncommissioned photographs. However, if the photographer is an employee of the company the photos are taken for, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright.
The photographer has the right to license the work for specific usage to a third party, either directly or via an agent/distributor – eg through an image library – who has been given the appropriate permission to distribute material on behalf of the rightsholder. A copyright owner can also transfer copyright completely to another person or organisation.
It is a common misconception that your department/college owns the copyright when you commission photographs. However, if you know at the time of commissioning a photographer that you will want to make the resulting images available to other departments etc, or use them for multiple purposes, make sure you specify this in your commissioning agreement with the photographer. The photographer can then agree to assign copyright to your department/college or broaden the terms for which you can use them. This will often incur an additional charge, but is certainly useful for images that you wish to make available to other people or use in different contexts.
It is essential to clear rights before an image is used.
To use a copyrighted image requires permission from the owner in the form of a written licence. If, however, you are using a photograph taken by a colleague a short email will suffice.
The amount payable to the photographer – or image library assigned to sell the rights or licence to use a particular image – depends on how you wish to use the image.
Licensing an image online is quick and usually simple, but you may get a better price if you discuss fees with the photographer or their agency.
Below are some points to assist with your negotiations. You will often need to supply all or some of the following details:
- Placement: home page/front cover/inside
- Reproduction size: full page/half page/double-page spread
- Duration: 1 year/5 years/in perpetuity
- Print run: 2,000/10,000/100,000 (in print only)
- Electronic rights: web/email /social media
- Language: English/French
- Territory: world/Europe/EU only
- Editorial: retail/textbook/academic/magazine/newspaper
- Advertising: brochure/flyer/directmarketing/annual report/advertisement
- Merchandise: calendar/greetings card/retail product
- It is less expensive to acquire the licence for the same images for several different uses at the same time, eg electronic and print licences; poster, brochure and online banner, rather than separately.
You can negotiate further discounts for bulk licensing – more than one image; usually the fee will be based on a sliding scale.
Researching a copyright holder
Finding the copyright holder of an image is often straightforward and simply entails contacting the creator directly or via their distribution agency.
But sometimes it is not that simple. The creator may not be in the phone directory, not be traceable online, or may have died so their estate now holds the copyright. It may not even be clear who took the image to begin with.
New laws regarding copyright and what are termed ‘orphan works’ came into force in the UK in October 2014. The law requires that users perform a ‘diligent search’ to find the copyright holder, and that acknowledgement of the creator should be given. There is no clear definition of what a diligent search is, but all searches should be recorded. Government guidance can be found at http://tinyurl.com/koyu79v.
Carrying out due diligence
When carrying out a search to trace rights holders it is important to keep careful written records of all efforts made. If no copyright owner can be traced and the images are used you must add a statement to show a diligent search has been made.
‘Every effort has been made to trace the copyright holders and obtain permission to reproduce this material. Please do get in touch with any enquiries or any information relating to this image or the rights holder.’
Types of licences
Rights Managed (RM)
Refers to a copyright licence which, if purchased by a user, allows the one-time use of the photo as specified by a licence. The licence is usually priced based on how the image will be used: size, length of time, regions, etc.
Refers to a licensing method under which image rights are sold at a flat rate for almost all purposes. The ‘free’ in royalty free does not mean there is no cost for the licence, but instead refers to being able to freely use the image without paying additional royalties.
All Creative Commons licensors retain the copyright in their own work while allowing others to utilise the work free of charge under certain conditions. This is especially useful when you have a tight budget. However, do read the terms and conditions to make sure that you have the permission to use these images in the way that you wish. You may not always find the exact image you want and it is often the case that an image library becomes a more useful resource.
For more information on Creative Commons licences and to review the different licences visit: creativecommons.org/licenses.
All images in the ‘public domain’ are free from copyright and can be used free of charge. A work is considered to be in the public domain when there is no copyright attached to it. In the UK copyright generally expires 70 years after the artist’s death, or, in the case of several copyright holders, 70 years after the death of the last creator. ‘Public domain’ does not mean that the image is available to the public, eg on a website.
Acknowledging the creator is a requirement of any licensing agreement.
This is usually done using the copyright symbol – © – followed by the creator’s name and the year in which the work was published, eg © John Doe 2015.
Image libraries require a credit as part of a licence agreement and it is generally required for Creative Commons licences.
If you do not include the specified credit you are contravening agreement and could be liable for a fine.
Sometimes the credit is all that is required by a copyright holder; it is their main opportunity to promote themselves and their work. Even where it is not specifically required, it is best practice to include an acknowledgement.
Do not just take images from the web. Even if you add a credit this is not getting permission. The publication of an image on Google or any other website is not an indication that it is freely available for others to use it. Most images appearing online will have a copyright attached and the rights holder should be researched and permission for use requested.