Product photography and copyright law

There are two aspects to photographic copyright: photographs may be protected by copyright, but may also infringe copyright.  A photograph of a painting could infringe the copyright in the painting, and a photograph of a photograph could likewise infringe.  That much is well-known to most photographers.

The position with respect to photographs of other artefacts - buildings, sculptures, designs and products - is less well understood.  It is less well understood because it is less straightforward.  However, it is clear that in some cases such photographs will infringe.  Section 17(3) of the Copyright Designs and Patents Act 1988 specifically provides that, in relation to an artistic work, copying includes the making of a copy in two dimensions of a three-dimensional work.

In this post I'll try to clarify the main issues, looking specifically at photographs of products, and at the implications of English copyright law for product photography.

Practical considerations

Before launching into a discussion of the law, I'd like to make one practical point, a point that mitigates the risks associated with some kinds of product photography.

If you are selling products, then more often than not the owner of any copyright in the products will benefit from you selling them, and will be unlikely to complain of any technical copyright infringement.  The rest of what follows should be read with this in mind.

How copyright protects products

Not all products will be protected by copyright; in some cases only part of a product will be protected; in others there will be no copyright protection.  So, how should you go about assessing what is protected?

Copyright protects defined classes of "work".  The first question to ask is this: does the product or any part of the product fall within one of the defined classes?

Some products will be protected as "original artistic works". 

The originality requirement is a modest one, meaning not copied and implying that some skill, labour or effort has been put into the creation of the artistic work.  Originality does not require genius, brilliance or even talent on the part of the creator.

There are three relevant categories of artistic work:

  • graphic works
  • sculptures
  • works of artistic craftsmanship

Different products will fall within different categories, so I shall look at each in turn.

Graphic works

Under Section 4(2) of the CDPA, "graphic work" includes any painting, drawing, diagram, map, chart or plan, and any etching, lithograph, woodcut or similar work.  Graphic works are protected irrespective of their artistic quality.

Clearly, some products will constitute or contain graphic works.  For example, if a product is a map, it is a graphic work.  Many other products will incorporate graphic works as surface decoration.  For example, a image used on a t-shirt could be protected as a graphic work. The packaging of many products will also incorporate graphic works.

Sculpture

The case law concerning what is and is not a sculpture is not as consistent or helpful as one might wish.  Moulds for sandwich toasters and prototype frisbees have in the past been found to constitute sculptures.  The most important case of recent years concerned Star Wars; specifically, it concerned copyright the Imperial Stormtrooper helmets from the first Star Wars film.  The Supreme Court, following the Court of Appeal and Mr Justice Mann at first instance, found that the helmets were not protected as sculptures. 

In his judgment, Mr Justice Mann set out some useful guidelines for determining what is and is not a sculpture.  The matters to consider (paraphrased by me to some extent) are:

  • The normal use of the word "sculpture".
  • That the concept of a sculpture can be applicable to things going beyond "art", to things that one would not expect to find in an art gallery.
  • It is inappropriate to stray too far from what would normally be regarded as sculpture.
  • No judgment is to be made about artistic worth.
  • Not every three dimensional representation of a concept can be regarded as a sculpture.
  • It is of the essence of a sculpture that it should have, as part of its purpose, a visual appeal in the sense that it might be enjoyed for that purpose alone, whether or not it might have another purpose as well. The purpose is that of the creator.
  • The fact that the object has some other use does not necessarily disqualify it from being a sculpture.
  • A pile of bricks, temporarily on display at the Tate Modern for 2 weeks, is plainly capable of being a sculpture. The identical pile of bricks dumped preparatory to a building project is equally plainly not. The difference is in the purpose of creation.
  • The process of fabrication is relevant but not determinative.

Applying these guidelines, most products will not be sculptures, but some will.  Clearly, a figurine may be a sculpture; equally clearly, a car will not, no matter how lovely its bodywork.

Artistic craftsmanship

If a work is not a sculpture, it may still qualify for copyright protection as a work of artistic craftsmanship.  The types of product that may fall into this category include "handicrafted jewellery tiles, pots, stained-glass windows, wrought-iron gates, hand-knitted jumpers, and crocheted doilies" (Bentley and Sherman summarising the case law in Intellectual Property Law (Second Edition) p74). 

Unlike most types of copyright works, the courts must adjudge a product as "artistic" before awarding protection under this heading. 

In the most influential case on the question, Henscher v Restawile Upholstery, a prototype of a chair was found not to be artistic, and was therefore unworthy of protection.  However, different judges have different views about what is or is not artistic, and the cases following Henscher are not always helpful.

Indirect protection

Finally, it is helpful to draw a distinction between direct and indirect protection.  The design of a product may be protected by copyright directly, or indirectly through the design drawings for the product, which may themselves be protected as graphic or literary works.  Design drawings are protected irrespective of artistic merit, and many designs which do not benefit form direct copyright protection will benefit from this kind of indirect protection.

There's a problem here: a photographer will rarely know whether a particular product was designed by means of drawings.  At first glance, it looks like indirect protection may render most product photography unlawful - or at least potentially unlawful. 

Section 51

If there's a hero in this story, it is Section 51 of the CDPA, which provides that

(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.

(2) Nor is it an infringement of the copyright to issue to the public, or include in a film or communicate to the public, anything the making of which was, by virtue of subsection (1), not an infringement of that copyright.

(3) In this section – ‘design’ means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration; and ‘design document’ means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.

This provides a general exclusion from liability in respect of photographs of "designs" other than "artistic works".   So, if a product or part thereof is not protected by copyright as a graphic work, work of sculpture, or work of artistic craftsmanship, photographs of that product will usually not infringe copyright, even if the design drawings for the product are protected by copyright. 

Moreover, if the taking of the photographs does not infringe, nor will their distribution whether in physical form or via the internet (subject of course to the position in other jurisdictions).

Copyright duration and Section 52

Copyright lasts a long time.  In the standard case, copyright in an artistic work expires at the end of the period of 70 years from the end of the year in which the author of that work dies. 

There are two problems here:

  • first, most products around today that are protected by copyright will continue to be protected for a long time to come; and
  • second, it may be difficult or impossible to discover when the "author" of an older product died, leaving you uncertain whether copyright applies.

This is where Section 52 comes in.  The first two sub-sections say:

(1) This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by - (a) making by an industrial process articles falling to be
treated for the purposes of this Part as copies of the work, and (b) marketing such articles, in the United Kingdom or elsewhere.

(2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.

So, where a product has been made by an industrial process and marketed, then after 25 years it can be copied "by making articles of any description" and doing things "in relation to articles so made". 

Is a photograph an article?  The answer to that question is unclear.  One the one hand, it would seem irrational that a product could be copied in its entirety but not photographed.  On the other hand, a printed image wouldn't usually be referred to as an "article" - and a digital image would never be so described.

Substantiality and incidental inclusion

There are two other ways in which a photograph of a product may escape liability, notwithstanding that the product may be protected by copyright in a relevant way. 

First, a photograph will not infringe where it does not copy a "substantial part" of the design.  Substantiality is assessed in both a quantitative and a qualitative way, so a small part of a work may still be a substantial part for the purposes of the law.  Where copyright protects the design as a sculpture or work of artistic craftsmanship (rather than as a graphic work) it may be easier to argue that the photograph does not copy a substantial part of the original design.  I'm not aware of any case law on this point - which is not to say that there isn't any.

Second, there is a general defence under the CDPA in relation to the incidental inclusion of a work in an artistic work:

(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast.

(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing or communication to the public, of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.

Where a product just happens to be in a photograph, this defence may apply. 

Licences, express and implied

If you have the express permission of the copyright owner to photograph the product, then you will not infringe the copyright. 

In some cases it may be possible to imply a licence to photograph - for example if the products are supplied to a seller by the copyright owner with the expectation that they will be sold online with accompanying images, and the only way to get such images is to photograph the product.

Concluding notes

Some product photographs will infringe copyright in the product.  Others will not.   It is difficult to make any general statements, and the risks in relation to each photographed product should be individually assessed.  However, there are many potential uncertainties, both factual and legal:

  • Is the product a graphic work, sculpture or work of artistic craftsmanship?
  • Does the product incorporate such a work?
  • Are there any antecedent design drawings or prototypes, the copyright in which could be infringed by a photograph?
  • Is the work sufficiently original to warrant protection?
  • Has the product been reproduced by an industrial process?
  • When did the "author" of the work die?
  • Does the photograph copy a substantial part of the relevant work?
  • Is there an implied licence to photograph?

So, even a careful and conscientious assessment might not lead to a confident conclusion.

Notwithstanding the potential uncertainties, there will be many clear cases, although I think a list of categories could be misleading.  The most obvious risks, I think, are associated with products that consist of or contain graphic works.  There are several reasons for this:

  • many products are graphic works or contain graphic works (whereas relatively few will be classified as sculptures or works of artistic craftsmanship);
  • the photography of graphic works (engravings excepted) involves 2D to 2D copying; and
  • graphic works are artistic works, and photographs of them will therefore not benefit from the protection of Section 51.

Where there is uncertainty and a real risk of a complaint, the most sensible course would be to obtain the permission of the copyright owner before taking and using the photographs.

If you have any questions about this legal tangle, you are welcome to post them below or on our legal Q&A system, and I'll try to answer them.

NB: Other areas of law may also affect product photography.  For instance, this post does not cover the effects of design law or the law of confidence on product photography.

Comments

Hello. First of all, thank you for your very informative post. However because of the complexity of this topic I thought I might post a scenario and see if you would be willing to help out. :)

This general idea for this example scenario is for a photograph of a child holding a doll.

The photo includes a doll. The doll is mass produced and is available in many stores and online. No brand or product names or logos are visible in the photograph. The brand and/or product name of the doll could be potentially identifiable. The photo is intended for commercial purposes such as book/magazine and/or gallery display and potential sale.

Based on my interpretation of your post it appears to me that this would be legal but again... this is a complex topic.

Any help you could provide would be most appreciated. Many thanks.

Dave

 

Following the Stormtrooper case, it seems unlikely that the doll would be considered a sculpture. On the basis of the information you provide, nor would it be protected as a work of artistic craftsmanship or a graphic work.

If this is right, Section 51 will apply, and the photographs won't infringe any design drawings for the dolls.

So your interpretation is right: the photos are unlikely to infringe any copyright.

Again, thanks for the informative post.  I have another scenareo I was hoping to get an opinion on. 

I want to use alphabet mugs from Pottery Barn to spell out my company name and photograph them within a kitchen I've designed.  Would using such a photo on my website infringe on Pottery Barn's copyright?  Unlike the example of the doll in the photograph, it seems like maybe the letters molded on the mugs make them graphic works.  The mugs can be seen here: www.potterybarn.com/products/alphabet-stoneware-mugs/

Thanks for any help you are able to offer.

I laboured for years to produce a quality product, unique in the world of spinning tops. One day I approached a business to apply colors to them. One year later, that business is now selling a copy of my design. To add insult to injury, the business owner is using photographs he took then of my product to advertise his own product today. Arg! Is the use of photos of someone else's product to sell your replica not protected?

Are both you and the other business situated in England/Wales?

Hi, 
I am going to give a talk + presentation about User Experience and products. In my presentation (which is in a large, paid conference), I would like to show images of products and talk about different aspects in thier designs. Is it ok to show images of products and screenshots of apps, taken from the manufacturer website?
Thanks! 

To avoid the risk of a copyright complaint, you should get permission for this from the copyright owner.

I own a collection of studio pottery, mostly purchased from potters' markets and galleries.  I am about to submit an animated film to a festival.  The film consists of still photographs of the pots, selected, cropped and ordered using sodtware.  The festival submission asks me to certify 'My film does not infringe any copyright, including music.'.  The music is all licensed.  I do not have details to of all the 50 or so potters whose works I have used, and there is not enough time before the submission deadline at the end of the month to contact them and get clearance.  The known potters are credited in the film.

What can I do ?  I have been working in this project for several years - I would be devasted to abandon it now.

I suggest you get specific advice. If it isn't feasible to instruct an IP solicitor, you might try this organisation:

http://www.own-it.org/

I know this blog refers to photography, but I think this is the closest I've found to an answer.

I am currently finishing an album and am doing the artwork myself. I found a photo (obviously taken on a camera phone or similar at I think a trade fair) of a modernish version of a philco TV set. I don't think they're still in production. I can find very little about them. I want to incorparate the TV design into a painting with extras such as a camera lens in the screen. 

There are some other photos kicking around of this particular set but I needed one head on which is why I've based the painting on this particular shot.

Can I get in trouble for painting a picture of a TV set (albeit a very pretty one) with modifications for use on an album cover?

Thanks

In principle a painting of a photograph could infringe the copyright in the photograph. The key question is whether a "substantial part" is copied. Given that any image of this particular television set would presumably look similar, the risk may be low. I'd need to see the images to say more. If you can identify the photographer, you could ask for permission.

Thanks for that. Im not sure if i got the guy who took the photo, but i think ive tracked down the guy who designed the tv set. Ill let you know how it goes!

Remember that you need to distinguish betweeen infringement of rights in the product (unlikely I think) and infringement of rights in the photograph (more likely, albeit low risk). Permission from the owner of the rights in the product does not equal permission from the owner of rights in the photograph.

Hi, Managed to track the guy down and he was more than happy to let me use the photo. Thanks for the advice. Much appreciated.

My 2 year old son was contracted through a modeling agency to produce images for their product box.  His picture was used on the box and in ads. Someone then stole the image of my son from the product box and photoshopped the image. Do I have any recourse? Does the company he modelled for have copyright in the image? Is the person who is using it doing so illegally? I really want to get the image taken down. Thanks!

There are various rights under English law that you or the agency or company might base an argument upon.

Most obviously, the agency or company might claim that their copyright has been infringed.  Alternatively, you might claim a breach of data protection rights here. The extent to which such claims would be enforced by the courts will depend upon all the circumstances.

i sell camera straps.  Each go with camers of specific weights.   to assist the customer I've taken various cameras and put my strap leaning against them to say -this large of a camera these possible straps.  Each product name has been blacked out and the knobs, dials greyed out.  Am I in violation?

I have written an article that I hope to publish that talks about the value of a deep re-design of metal hardware for a handbag brand that was a former employer over 2 years ago. It is a design-centric article and I want to utilize several artistic photographs I had taken of plastic and metal prototypes I had made, They have a Bokeh effect, blured background, and are close up views and out of conext. They are abstrated since they are not connected to a handbag just placed on a tabletop but do have logos. Would these images be considered a work of art themselves or are perhaps sculptures? These items have since been commercialized and the brand sells a complete "handbag" that has these hardware on them. The Hardware is not sold as a product itself its a component to the handbag.

Thanks.

Hi,

Is it possible to revoke implied terms? Eg as a retailer of sunglasses the manufacturer supplies me studio shots of the product to sell them online. We no longer work with this supplier but they have now asked to remove any studio photos they provided, even if we have stock of the product. They've asked us to do so within 24 hours. Is this considered legal or even reasonable?

If there is no express licence of the images, then the terms upon which the licence may be revoked are uncertain. In general, I would expect this type of implied licence to be revocable under English law. There may be specific factors in your case that affect this.  You might argue that there is an implied term that the manufacturer should give you reasonable notice of revocation. But I wouldn't relish relying upon that sort of argument in court.

Thank you for the speedy reply. The sunglasses supplier is a french brand. Is this the same principle for EU law? I guess I either need to remove the pictures and have them reshot or wait for cease and desist letter from their solicitor. Would a court consider this type of action restrictive by the supplier? They made up a large portion of our business and all we are trying to do is clear our inventory.

Given that this is going to have a significant effect upon the business, I suggest that you instruct a solicitor to provide formal advice on these question. For instance, the question of whether a termination/recovation itself might be actionable (eg under competition law) is a difficult one to answer at the best of times.

Hi, I run a non-commercial blog doing reviews of older lens equipment less than 70 years old and take several product style images for the pages. These lenses are not being sold or advertised as such, they just add visuals to the text. Somebody recently uploaded and used one of these images on a public forum and as I had not given permission, I told them they were infringing my copyright. The images have my name/website watermark on them. 

Am I also in breach of copyright/IP law by taking these images? Would the company have decent grounds to sue me for such infringement if I also tried to prosecute someone else for using my 'product' image of the lens? Would it make a difference if I ran for-profit advertising on my review pages which featured these images? 

Thank you. 

In general, I doubt that lens equipment would be protected in any of the ways discussed in the article (although it is possible to conceive of circumstances in which it would be protected - eg if there was a graphic copyright-protected image printed on the equipment).

Including ads on the website shouldn't make any difference.

Hi, I sell User Interface illustrations to video game designers for use in their games. If I sell illustrations of game controllers (specifically PlayStation, Xbox, and Nintendo Switch), will that infringe on any copyrights? 

i see photos of game controllers sold on many stock photo sites, so it seems to be a common thing. 

Thanks

I photographed several food packages and toys to use as visual aides on a choice board I made for my four year old daughter who is non verbal and affected by autism. They are intended to be privately used in our home for the sole purpose of encouraging her to communicate by indictating things she may want or need. She does this by pointing to, tapping on, or removing the laminated and velcro backed photo of the object or food she wants from the board.

I went to my local retailer to use their automated photo kiosk. Once the photos where printed I took them to the register to pay for them. The woman at the register looked at me like I was crazy then disappeared with my photos around the corner. I followed her, wondering where to and why she was making off with my photos, only to find her and presumably the manager looking through my photos and shaking their heads in confusion. I asked if there was something wrong and the the manager looked at me with distaste, asking what I took these photographs for. I was taken aback and offended. They were treating me as though I was criminally insane for taking pictures of toys and food packages. I told her it was none her business to ask such a question, that they were for private home use, then reluctantly explained what they were for, again adding that it was none of their business to ask me. She said that the photos where infringing copyright laws and that they could not legally sell them to me. I got irate and told her that they could keep the photos and that I refused to pay for them. Also that they should be more sensitive to the needs of disabled children. They grudgingly sold me the photos anyway, all the while telling me what big trouble they could get in for doing so.

In my mind, no copyrights are being infringed considering what I'm using the photos for. Am I right? If I'm wrong and the law IS being broken then who is breaking it? Me for taking the pictures? The retailer for enabling me to print them out and selling them to me? Both of us? I would like some legal ammo I can throw back at them the next time I go to print out a round of pictures for my daughter's choice board and they want to give me hell for trying to teach an autistic child to communicate. I understand the purpose and importance of copyright laws but I found this particular case of the hypervigilant employees to be outrageous and offensive.

Copyright infringement is not limited to cases of commercial use, so it is conceivable that photographing products and packaging could amount to a copyright infringement. However, there are various defences that could apply here.  For instance, s32 of the CDPA 1988:

http://www.legislation.gov.uk/ukpga/1988/48/section/32

In any case, even if this doesn't fall squarely within one of the statutory defences, the risk here must be minimal, as: (i) there is no loss to the copyright owners; (ii) making a fuss about it, much less bringing proceedings, would be an invitation to bad publicity.

I'm guessing that you are in the US, but - as a UK lawyer - I've answered this question from an English legal perspective. For information about the US doctrine of fair use, see: https://en.wikipedia.org/wiki/Fair_use

Hi,

If a trademarked or copyrighted item, such as a labelled bottle of wine, or maybe a recognisable appliance such as a Henry Hoover, was used as an accessory in a model, would it be illegal? To clarify, the main model would be made from clay, painted etc but then placed within a "scene" which might include some recognisable objects. Obviously they wouldn't be the main focus of the piece but added to create an authentic-looking setting - could this be a breach of copyright or trademark law? We're based in the UK. Any help would be appreciated - thanks. 

Hi, 

We need some product shots of packaging for an adhesive brochure. Our idea is to take pictures of an item, for example branded cookies, and retouching the branding out.

Would this be ok?

I'm afraid the answer here is "it depends".  A lawyer would want to see the original and retouched image before advising on this.

Hi, thanks for all your useful advise.  I think from what you say, it would infringe copyright to take pictures of antiques - 100 years old - and sell those pictures as prints. Is that right? 

Hello, we are a publisher of college textbooks, and one of our authors is including some Shutterstock images taken of branded products, including Coca Cola, Kleenex and Nike.  While we could content we purchased the images from a royalty-free agency, we are concerned that the photographer may not have had permission from these brands to take close-up product photos and profit from them on a stock photography site. It is unclear to us if anything appearing on shutterstock is copyright-free, or if images  may appear there, like trademarked products, which would be a copyright infringement. What are your thoughts here?

Images on Shutterstock will usually be protected by copyright. When you purchase stock photography you are purchasing a limited licence that allows you to copy etc the photos without infringing.

The first thing to do would be to check out the Shutterstock licence terms to see if they purport to cover these sorts of underlying rights - although I'd be surprised if they do.

Hello,

I am writing a children's book and want to include a black and white photo I took of a pile of games.  The games include newer games such as Catan and Ticket to Ride as well as older ones like Scrabble, Rummikub and Password.  After reading your article I think this is included in Product Photography but I am still not sure if it is a legal photograph for me to use in my book.  Can you help clarify?

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