Copyright Hell

20110123_MG_7877 copyCan this photo ever be a stock photo?

The question is obviously rhetorical and the answer is no. The picture can be sold as art on paper – or as an editorial image which cannot be used commercially.

Why? Because there are newspapers in the background with headlines, text and images which to a certain extent can be recognised and attributed to copyright holders.

At the same time, the image is a good expression of the frustration that stock photographers often experience when it comes to copyright.

Everyone who produces stock photos knows that final images may not contain recognised trademarks. It is the first rule for stock photo agencies that brands such as company logos are strictly prohibited on images. It is a very simple rule which could also be classified as common sense. Naturally, companies’ trademarks cannot be included in pictures sold for other purposes.

Danish, and most European, legislation is based on common sense, and both the interpretation and the common perception thereof may be considered reasonably pragmatic. Unfortunately the stock photo industry is largely based on U.S. law, since most stock photo agencies are American or trade with the U.S. and must therefore respect their laws.

Common sense suggests that trademarks, artwork and recognisable designs may not have a significant impact on the image, unless permission from the trademark owner has been obtained. In Denmark, it would hardly be considered a problem if a stock photo showed the easily recognisable Carlsberg beer bottle in the background or if a person wore clothes that can be recognised as a Danish Post Office uniform, or where a discreetly placed Hummel logo appeared. At least as long as the image is used in a context which can neither be misunderstood or grossly misused. But it is due to exactly the fact that nobody knows how a stock photo will end up being used, that has led to the control of brands becoming pure madness.

Over the years I have experienced rejections of images on situations where I, despite my awareness of these conditions, had not considered some very small details. Like for example, the pattern on the back of playing cards which formed a small part of the subject – the pattern is a piece of art and therefore copyright protected. Or the text on the spine of a book. Or a small piece of visible text (two or three lines) from an old book, which similarly formed a small piece of intellectual property.

It inevitably makes you wonder when an item is visible and/or recognisable enough to be a problem. How recognisable is an arbitrary piece of IKEA furniture on the photo and how centrally located need it be in order not to be a problem? If I compose an image around Jacobsen’s “Seven” or “Egg” chairs, I can easily understand that this may be a problem. But what about cheap everyday furniture, which is after all copyright protected to some extent? Not easy to answer.

What about ordinary interior design objects that may have been purchased in a supermarket, but nevertheless has been designed by someone who earns an income from that design? Including not least the murals which form the blurred background image? Equally difficult to answer and must be considered a total grey area in the industry. For this very reason I even produce paintings with the sole purpose of forming the backgrounds in my compositions. I also often create unique book covers, computer screen images, bar codes, tattoos and the above-mentioned playing cards, for the sole purpose of avoiding any problems with copyright violation.

How recognisable must the design of a car or a laptop be before it becomes a problem, even when there are no visible trademarks? Clothes are in a category of their own. There are probably very few who think of the fact that there are logos and trademarks on shirt- and trouser buttons, on the edge of the frames of spectacles and on the face of a wrist watch. There are – believe me  🙂 To fine-comb an image for trademarks, and preferably before the picture is taken, is a huge task. Patterns are a grey area. When is a shirt- or tie pattern artistic enough to be copyrighted? Not to mention the patterns on a carpet or wallpaper. Generally, simple designs could not be – after all no-one has a patent on dots and stripes. But when are stripes and colours so special that they form a recognisable and protected design? Difficult to answer unequivocally, and I am most likely to interpret the rules in favour of any copyright holders.

In their eagerness to avoid possible litigation stock agencies have recently gone a step further. Several have announced that they now not only check the images for copyright violations but also descriptions and keywords. Now you may not use words in the metadata which in any way can indicate a connection between the image and a product or brand. You can also expect that these rules will be rather strictly interpreted.

Buildings are of course also included, as these are often private property. Generally, the better-known buildings are exempt – for example, most major bridges could be included in the background of an image without a problem, as well as official buildings such as The White House or Edinburgh Castle. This also applies to e.g. the Colosseum and the Eiffel Tower – in daylight. At night the Eiffel Tower is illuminated and considered a work of art, and copyrighted. There are also works of art which are exempt – such as those found on bank notes. Pictures of banknotes are fortunately still allowed as long as you comply with national banking regulations not to reproduce banknotes in a form which can be considered counterfeit. Unfortunately, Photoshop includes a banknote recognition algorithm, which is sometimes a little strict, so even here it is difficult 🙁

This ends an article which provides more questions than answers – because there are not many clear answers in the fringe areas of these issues. Hopefully it can be a help to aspiring stock photo photographers to avoid some pitfalls and thus avoid wasting their time on images that risk being discarded by photo agencies.

The image in the introduction is obviously not an accident. It is not designed to be a general stock photo. If it had been, I would have avoided any composition detail in the papers which would be recognisable, thus losing the point. Alternatively, I would have used newspapers so old that all copyright holders had been dead for at least 70 years, which obviously is a little difficult. Or even have produced fake newspaper pages, but this would only leave me with the problem of explaining this fact to each and every photo agency to whom I sold the picture.

Or I can choose to classify the picture to be filed in the archive of editorial images or conceptual art. Thankfully, the margins here are truly wide 🙂

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