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 from 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.
I want to put a book together on the uses of specific products for the use during a service based business. (How the provider can use the product to use during a service for an upcharge).
Do I need permission from the company of the product to take a picture of the product or use the product picture in the book?
I saw Tyler’s question from 2019 but no reply. “If I take a picture of a car, then illustrate that picture into a poster to sell online, am I infringing on the copyright of the car manufacturer? Some shots don’t have the emblem in it, it’s just the shape and look of the car.” I’ve been asked to do the same thing. Is this a problem? Many thanks.
Thank you for the very informative article. It reminded me of a question about copyright I’ve never been able to find an answer to. Do you know if there are any exemptions for publishing photos of fake items? Specifically, if someone is making and selling fake coins, would it be a breach of copyright to publish these photos on a gallery of fake coins (not hosted by an educational establishment)? I wasn’t sure if this would come under the “Reaserch and private study”, “Criticism, review, quotation and news reporting”, or “Illustration for instruction” exceptions.
if I take a picutre of tinned food lables and use my picture, im i breaking the copy rigtht or im i free to do so ? eg Andy Warholts tinned soup picutre?
That depends upon what exactly is on the label (is the label protected by copyright or another relevant right?) and the purpose for which you are taking the photograph (assuming you are infringing a legal right, does a defence apply?).
Is it copyright infringement to make a painting for public sale, of a liquor bottle and/or label seen online in a photograph?
A sporting organisation is asserting that I have breached their intellectual property by videoing matches. I paid for enrty to grounds and there were no signs indicating conditions of entry that prohibited filming. Is this true under the law ? Do I own th ecopyright to any footage that I have recorded ?
If I photographed a hand…the hand is not real, they are used by Nail Salons for the purpose of tra ining and we’re using them in still life shots, reaching for a bottle of Guiness, might that be a trademark or copyright issue?
Would photographing a wine bottle in my still life photo be considered trademark or copyright infringement?
Could I ask: for what purpose or purposes would the photograph be used?
Hi
As photographer can I use my pictures with popular food bran product on my website Portfolio? Would I need a permission from the brand to use theirs logo? Even if the only purpose is to create a portfolio of “Product Photography” on my Food Photography website
I just bought a large portfolio of celebrity photographs in an auction. These have a sticker on the back saying ‘copyright photo reproduction fee payable’. As I own the photo and do not intend to reporoduce, can I sell the original photo as the new owner?
Yes, you can probably still sell the original photos (but not take copies from them or sell copies etc).
In theory there could be other factors in play that I don’t know about, hence the probably.
The rights in relation to copies of photos that are legally sold are said to have been “exhausted” under IP law.
Hi, I’ve paid for product photos from a professional photographer. We agreed on a price for 8 images and then they tried to overcharge me
My question is from the other side of the equation:
If I hire a photographer to shoot my jewelry designs, does the photographer own the images, or do I? Are they implicitly “works for hire”, or does the photographer have a say in what happens with them?
… is a US legal doctrine. Assuming you are in the US, you should ask a US lawyer about this. Our expertise is in English / EU law.
If I take a picture of a car, then illustrate that picture into a poster to sell online, am I infringeing on the copyright of the car manufactuer? Some shots don’t have the emblem in it, it’s just the shape and look of the car.
What is the standing on reproducing old packaging to goods that have not been sold for 20+ years? Example: an old matchbox car made in the 70’s/80’s reproducing the packaging that it once came in for people who have collections and want to display them?
In what context would you be reproducing the packaging? Would the reproduction be published on a website? Would you be inviting others to download and print packaging files?
Hi;
I am doing an album cover for my husband’s music. I have a photo I took of him sitting outside the store. I have used a photo app to make it look like a sketch. He wants to use the name of the store for the name of the album as well. Is there any problems with using this photograph and the name of the store?
Thanks in advance.
Hi,
Saw an unanswered question from a few posts before about usage of branded products in 3d renderings that is very interesting to me, so please give your thought on this:
“Obviously people record artists playing on Steinway, Fazioli, Bosendorfer, Yamaha, etc, pianos all the time and sell these works. However, none include 3D renderings of said piano. Would this be considered “replicating a significant portion of the work” since I’m basing my model off of a real piano? Also, why would it be ok to film the piano, but not create a 3D rendering of the piano? One last question, slightly unrelated – could I photograph a piano like a Steinway or a Yamaha and sell posters of it? Obviously there are posters of famous artists playing all kinds of pianos, so at what point would a poster of a piano become a copyright violation? When the photo is close up? Thank you for your amazing legal blog!”
I’m currently looking at the possibility of producing a series of themed photo prints for sale. The basic concept is:
— Each print would be a still life themed around a particular classic games console. The photo would likely include console, controller and some period “set dressing” (a period games magazine, one or two games for the console, other period items etc.) – essentially an idealised slice of a particular moment in gaming.
Would creating a scene like this to photograph and sell as a print run foul of the companies involved and be likely to constitute copyright infringement?
As a UK (England) photographer just starting out in product photograhy I would obviously need to build a portfolio showing examples.
If I purchased an item of footwear, shot images of the item with the logo visible, as an example of what I am capable of – would I be in breach of anything?
To clarify; I purchased the item privately and am not selling the item.
I have had no contact with the brand seeking any permissions, I am not indicating that I worked for brand – merely taking a photograph of an object and saying ‘I did this…’
The resulting image would be posted on my web site and social media – possiby with tags to the brand.
Appreciate any help in this matter
Assuming the footwear in questions is regular, industrially-produced, footwear and does not itself constitute an artistic work, the biggest copyright risk here would be in relation to logos – but even if there is a prima facie infringement the “incidental inclusion” defence could well apply here. For background, see:
https://www.legislation.gov.uk/ukpga/1988/48/section/31
https://www.bailii.org/ew/cases/EWCA/Civ/2003/995.html
See also https://swanturton.com/repeal-section-52-artistic-works-incidental-inclusion/, which covers the repeal of s52 back in 2016.
Thank you for taking the time to respond to my query.
Yes the footwear would be a regular, industrially produced item – and yes the logo was my main concern.
The articles referred to were certainly an interesting read in how these matters are evaluated.
A company patents a product and manufactures it for sale to resellers. Resellers photograph the products for marketing the product. These pictures and others from other resellers end up on the Internet. Since the manufacturer has not given or prohibited photographing these products for marketing does anyone have copyright status on these or are they simply photos that can be used by anyone?
Copyright in the photos will be owned – subject to any employment relationships or transfers of rights – by the person who takes the photo. Even if the photos infringe some rights in the products, any new copyright in the photos will accrue to the photographer. Of course, the photographer may be unable to use the photos without infringing the underlying rights, notwithstanding ownership of the new copyright.
I have created some characters out of old vacuum tubes and other electronic parts. (recycled art robots) RCA is printed on the tubes. I make photos of my characters which may eventually be put in a book. Photographs may be sold. Do I need to remove the RCA and other logos?
As a matter of English law, this is probably OK. If we are talking about the unadorned letters “RCA” there will be no copyright issue, as copyright does will not subsist. As regards registered trade marks, the UK IPO TM search service is currently down, so I can’t check if there is an existing registration for RCA. Even if there is, there are a number of different bases upon which you could argue that the use doesn’t constitute infringement. Lastly, it’s pretty clear that this isn’t passing off (i.e. unregistered trade mark infringement).
The position may of course be different in other jurisdictions.
I am a 3D artist making a show about pianos. In particular, I am creating a 3D model of a piano based off of a Steinway Concert D grand. Part of the show will be 3D renderings, the other part of the show is of a real concert pianist, playing on a real Steinway Concert D. Obviously people record artists playing on Steinway, Fazioli, Bosendorfer, Yamaha, etc, pianos all the time and sell these works. However, none include 3D renderings of said piano. I would like to have the computer camera fly inside the piano, but this seems to be where I could get into legal grey area. Would this be considered “replicating a significant portion of the work” since I’m basing my model off of a real piano? Also, why would it be ok to film the piano, but not create a 3D rendering of the piano? One last question, slightly unrelated – could I photograph a piano like a Steinway or a Yamaha and sell posters of it? Obviously there are posters of famous artists playing all kinds of pianos, so at what point would a poster of a piano become a copyright violation? When the photo is close up? Thank you for your amazing legal blog!
Hi, I am an educator who is preparing an online lecture presentation for university students. I want to show a photograph of a specific branded watch to discuss the materials used to make it. I have not received any response from the source to my request for permission to use the photograph I found, and so I’m considering other options. I’m wondering if illustrating the watch would be copyright infringement. Could I use my own illustration of the watch in my presentation? Would not including the brand name in the illustration help? Or is any representation of the watch going to infringe copyright?
I would really appreciate any advice you can provide regarding this.
Thank you so much!
If I am selling a product – e.g. a pair of leggings, online in an ecommerce website – regarding the image of the product I am selling am I allowed dress the model in branded shoes to match the leggings? e.g. Model is wearing leggings I am selling and a pair of Nike Air Force ones – but the Air Forces are not the focus. Am I allowed to upload the photo and sell the product? Does this breach any laws?
Hi,
Really weird scenario that I have not seen addressed here or anywhere really. If an Amazon affiliate uses a product image that is a photo of a famous magazine, is that infringing the rights of the photographer who took the cover photo? I have permission from Amazon to use it to sell the magazine that is listed by linking to the listing on Amazon, which is what I did. But rights holder of the image on the cover says too bad, Amazon can’t grant me that right. Amazon says I am within their rules and the rules as they understand them regarding intellectual property but will not help me defend the case, The photo is even hosted at Amazon not my site, and at this moment there are 12 listings on Amazon selling this same magazine with the exact same photo. It’s a thumbnail photo of the magazine cover. Is this truly infringement?
Great article! I am using a free stock photo downloaded from the web with commercial permission granted. I am using this as an image on my commercial website selling my own manufactured product. I have also modified the free stock photo. It contains an image of a branded product. I have blanked out the product logo and photoshopped my products into the same photograph; it would be impossible for someone other than an expert in the product niche to determine the brand of the product included in the photograph other than my brand. Is this acceptable? Since I have been granted rights by the original photographer and the free stock website, am I exempt from liability?
Thanks!
There is a photo online with a copyright, but the site can not be found and therefore the owner is not clearly written in the copyright even though there is a symbol with an email address of just an initial followed by numbers. Would it be an infringement if I copied the photo for production purposes for resale in another country?
This would probably amount to an infringement. You may however want to check the rules on “orphaned works” applying in the relevant jurisdiction(s).
It seems reasonably likely that this was, in fact, copyright infringement. I can’t provide much in the way of tactical advice on this, however, as the best approach will depend upon all the circumstances.
As a car photographer, I am starting to sell my photos as a side business both on poster and to online stock image websites. Is it safe to sell these photos if the logo of the automotive company is in view, as long as the logo is small and not the subject of the picture?
Hello,
I love art works so much so i always go to galleries and museums.
I would like to ask if it’s offensive to mimic the posture of the sculptures while being shot by a camera man in a public museum?, because i got repremanded once by a staff.
Thanks for your very useful article. I had a shock recently when landrover had my images removed from a website because they own copyright to the brand so i am worried about a book i have planned – i wrote a story 40 years ago which includes motorbikes me & friends owned. I drew & took photos of bikes/parts of them. Can i include these images in my book? to illustrate the story in a positive way. Some are ariels (not manufactured since bsa closed 1972 but ariel started up again in Crewkerne) or am i infringing any copyright brands? thanks
after my shock re landrover having my images removed from a website because they own the copyright to the brand i am worried about a book i have planned — i wrote a story 40 years ago which includes motorbikes me & friends owned, i took photos and drew the bikes/parts of them. can i include these images in my book, i want them to illustrate the story, obvious is a positive story re the bikes. have permission from people who owned them, some are ariels (really old bikes not manufactured anymore) or am i infringing any copyright brands? thanks
you could be in breach of copyright so do be careful because it isnt nice to get an email saying an image you took infringed copyright. it was a horrible shock when it happened this week to me. Over the decades ive specialised in landscapes, but have taken piccies of people, cars and motorcycles in those landscapes, the vehicles being owned by myself or friends/family, who are obvs happy for me to take piccies. On redbubble i was selling prints of images of our car in the countryside/mountains, for very little (60p profit) but Land rover complained to redbubble saying i infringed their copyright and the pictures have been deleted by redbubble, so i cant even order pictures for myself even though i took them and wouldnt be profitting from them. There are still many pictures of landrovers as the main subject, without any backgrounds at all, for sale, on redbubble but it is probably only a matter of time or hit&miss who landrover and other companies complain about – in my pictures the car was small on the road compared to the scenery around it, complimenting the scenery. its got me worried re any pictures i take that could have any car in but dont intend to sell on redbubble anymore. Alamy is very good at explaining about Rights Managed images. Hope this helps.
Hi there, I am starting up a beauty salon and want to add images of products I plan to sell in store onto my website, down the track I want customers to be able to purchase these products from my website.
Am I breaching any copyrights or licences by doing this? I was just thinking of getting the images of the internet, not taking my own.
The products would be well known brands e.g. Clarins, Revlon, Christian Dior, Chanel etc
i have a very similar question regarding placing images of existing brands that i hold in my store in order to sell them online . is there a copyright violation? after all, i would assume a brand would want me to promote its products?
Helllo
Can I make a figurine for a wedding cake from a copyrighted photo belonging to a ballet company?
Thank you so much!
Hi
Please can you help me settle my case with another seller. I sell bracelets on Ebay. I designed a bracelet and took a picture of it. The bracelet design is similar to others on eBay but not the same. Now a guy who sells the same kind of bracelets has said I have stolen his idea and copied his photo. I took my own photo of my own product on my own table. Have I accidentally infringed a copyright even though this type of design is commonplace?
Thanks for your help.
I can’t help with the specifics here, but you should bear in mind that copyright is not a monopoly right. In other words, if you don’t copy, directly or indirectly, there is no infringement. Of course, copying may be inferred in some cases.
Hi there, as a commercial photographer I felt pretty clear on copyright requirements, but I suddenly find myself stumped with a usage query of my own. Over the years I have produced a substantial portfolio of images for clients – ie commercial use images, and I now want to create an ebook that teaches about photography and I’d like to use some of my folio images as examples. The ebook will be a paid product. I have retained copyright in all instances, but I’m not sure that client necessarily absorbed the meaning of that. My question is, is there any reason that I can’t use commercial images I have shot in my ebook as examples, and if I do, do I need to credit the clients that I have shot the images for please? Your opinion would be greatly appreciated. Thank you, Su.
Have all/any the customers agreed to your T&Cs? What do those T&Cs say about copyright and licensing?
My T&Cs are very basic, they say that they get an exclusive license, perpetual use, global territory and that I retain copyright. Nothing more detailed than that… Thank you
An exclusive licence usually means that the licensor does not retain the licensed rights. So if you have licensed all rights on an exclusive basis, you may not have the right to use the images yourself, notwithstanding that you are the owner of the copyright. A lawyer would need to review the document itself, and discuss what you want to do with the images, in order to advise properly.
Hi Alasdair, just wanted to say thank you very much for your feedback. Sue.
Hi there,
Thanks very much for your clear and informative blog.
I am a Graphic Designer creating a promotional Christmas window-shop-front poster for a shop that sells many products (homeware, plates, decorative items and toys etc). I have created an illustrative composition that includes many smaller illustrations of these products in a Christmas setting,these products being available to buy in-store.
These illustrations are very direct representations of these products and are detailed and recognisable, and drawn from my own product shots. However the products have been directly sold to the shop-owner, and the purpose of the illustration is to promote the selling of these items in a way that also promotes the store.
Is there an implied licence here, particularly when the purpose is to promote the sales of these products? What advice would you have for this situation?
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?
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.
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?
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,
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.
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, 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
Hi,
Did you find out the answer to this as I would like to where I would stand on illustrations of these products also.
Thanks
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,
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.
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.
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?
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 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.
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/
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 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?
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: http://www.potterybarn.com/products/alphabet-stoneware-mugs/
Thanks for any help you are able to offer.
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.