A Guide to... Copyright, Fair Use, and Licensing: Visual Media

The use of images is governed by the same guidelines and laws as any other content, but special consideration needs to be given as each image is a discrete intellectual property. Think of each image as entire book: You can't reproduce the full text of a book without permission except in specific circumstances. 

Another important consideration is that images are frequently covered by specific usage licenses and therefore do not fall under standard copyright law. Licenses supersede copyright. This includes fine print on websites that you agree to simply by visiting them.  

When searching for images online, always locate the license terms that control the licenses. Look for a section labelled Terms of Use, Terms and Conditions, Rights Statements, or End User License Agreement (EULA).

In the absence of license terms, U.S. Copyright Law applies, with the right of Fair Use.  

Copyright law gives copyright owners a legal monopoly (with some limited exceptions) to control the use of their work for a limited period of time (see below). They can decide if and when to obtain commercial gain from their work by licensing any or all of these rights on an exclusive or non-exclusive basis:

• Reproduction: the right to make copies
• Distribution: the right to sell or otherwise distribute copies to the public
• Display: the right to display the work publicly
• Perform: the right to perform a motion picture or audio visual work publicaly
• Derivative works: the right to create adaptations

Who is the copyright owner?

In most cases the copyright owner is the person who created the work, i.e. the photographer. However if the creator was employed to create the work as an employee or as a work for hire, the employer is the copyright owner. Any copyright owner may transfer all of their rights to another person or company, who becomes the new copyright owner.

What images are in the public domain or available for public use?

• Any work created by the US government.
• Any work by US author first published or registered with the US Copyright Office more than 95 years ago.
• Any image explicitly transferred for broad public use by its author under a type of Creative Commons license or the like.

Licenses are an agreement between the copyright owner, or his/her representative, and you. There are two principal licensing models: rights managed, where a license is granted for a defined use, and royalty free, where a license is granted for a broad range of uses. There are also various free licensing models, of which Creative Commons is now the best established (for content).

Rights managed

The key characteristics of a rights managed license are:

1. The fee is determined by the details of the usage.
2. The usage is defined by a variety of parameters that may include image placement and size, publication medium, print run, duration, market sector, territories, and others.
3. The license restricts use to the pre-agreed usage parameters. If you need to use the work outside those parameters, you must purchase an additional license.

Most rights managed content is available for licensing on an exclusive basis, where you are guaranteed exclusive use of the image within, say, a specified industry, territory or time period. The licensor will charge a premium for this exclusivity to cover the value of potentially lost sales.

A rights managed license for commercial use will typically include model or property releases applicable to the work, but you are still required to determine if the releases are adequate for your use.

Creative Commons is an organization that has established a set of licenses creators can assign to their work to be transparent about how they will allow others to use and reuse their work. Creative Commons licenses let people know the limits of what they can do before they need to ask for additional permission. Creative Commons licenses lighten the burden creators and authors have for addressing permissions requests.