Using Photographs of Copyrighted Works and Trademarks

What is protected?

First, it is worth briefly recalling what sort of objects may be protected by copyright. Most photographers are aware that literary, artistic and photographic works benefit from copyright protection. But how many know that the same protection also extends to maps, globes, charts, advertisements or labels? And that it may also extend to "works of applied art" such as jewelry, wallpaper, carpets, furniture, toys and fabrics? It is all too easy to incorporate such items in a photograph without giving a second thought to the question of whether there may be rights involved which need to be cleared.

Of course, even if an object does fall within the scope of copyright protection, no permission is required to photograph it if the term of copyright protection has already expired. In most countries, copyright protection covers the lifetime of the author (artist) plus 50 years after his death. In a number of countries, this period extends to 70, 90 or 95 years after death. If several authors are involved, then the term of protection is calculated from the death of the last surviving author.

Whether or not permission is required also depends on how much of the work appears in the photograph. Generally, prior consent is needed to reproduce a substantial part of the work. But there are, and can be, no general rules on this. Often, the quality of what is used may be more important than how much is used. For example, "The Son of Man," a painting from René Magritte, depicts a man whose face is obscured by an apple. If a photographer reproduces only the face with the apple, permission would still be required, though it is only a small part of the total painting, as it is a vital or recognizable part of Magritte’s work. Determining what constitutes a substantial part is done on a case-by-case basis. If in doubt, it is always best to ask prior permission from the copyright owner.

Fair use

The above, if unqualified, would place significant restrictions on the photographer’s choice of subject. But a number of important legal exceptions to copyright aim to strike a just balance between, on the one hand, protecting the rights of the copyright holder and, on the other hand, the wider public interest. These exceptions often enable photographers to reproduce copyrighted works without permission. They are enshrined in the concepts of fair use or fair dealing, in common law, or limitations or exceptions...