A recent magazine assignment had me photographing in a Toronto law firm’s office. The reception area, conference rooms and hallways looked more like an art gallery than an office. It’s become common for corporate offices to be decorated with original artwork.
When hired to shoot an executive portrait, a corporate photographer might be tempted to photograph the person in front of a piece of office artwork because it adds a point of interest. But beware of copyright issues.
(I’m not a lawyer so don’t believe anything you read here . . . )
The company may or may not own the copyright to the artwork. If they don’t then, without the artist’s consent, the artwork may or may not be included in your photograph.
If the artwork is only incidental in your photograph, then there’s no copyright infringement. For example, the artwork is in the background, out of focus, or contained in a group of other works.
But if the artwork is a main part of your photo, then copyright infringement can become an issue. It depends on how the photograph is used.
If the photo is only for internal corporate use or for an editorial story about the artwork or artist then it’s probably okay. But for any other use, the photographer and the company that will be using the photo have to be careful. Artist consent may be needed.
One of the responsibilities of a professional photographer is to minimize risk. If a corporate photographer plans to do a portrait of someone in front of a piece of office artwork and that art will form a major part of the photo, then the photographer should advise the client of the potential copyright infringement risk.
Should a company be sued for copyright infringement because it published a photo containing copyright-protected artwork, it will blame, and maybe sue, the photographer.
A photographer should always have clauses in their contract concerning property releases, copyright/trademark releases and potential liability issues that might arise upon publication. A photographer should be responsible for making the pictures. The client should be responsible for using the pictures.
All of this applies not only to corporate photography done in a company’s office but also to photography done in someone’s home or outdoors.
If someone has copyright-protected artwork in their home, the same caveats mentioned above apply. It doesn’t matter whether the location is a home or company office.
If the photography is done in front of some outdoor artwork and that art is more than incidental to the photo, then copyright might be a concern.
If the outdoor artwork is *permanently installed* in a *public place* then you can probably use it in a photo. (I’m not sure about commercial use where the artwork is front and centre in the photo.)
But note the phrases “permanently installed” and “public place”. Graffiti [and here] and other types of murals might be permanent but they may not be “installed” in a “public place”.
Please check the date of this article because it contains information that may become out of date. Tax regulations, sales tax rules, copyright laws and privacy laws can change from time to time. Always check with proper government sources for up-to-date information.
If changes are made to an original work then copyright no longer applies. This is similar to Patent rights where a modification (improvement or otherwise) will in effect nullify the patent as far as reproductions are concerned.
Where an artwork or copyright item appears in a photograph that is not intended as a direct copy but rather is an entirely different work for a separate purpose there can be no question of copyright as there is obviously no intention to ‘steal’ the work in questioner profit directly from it.
Copyright is a mechanism for the protection of the author or artist in the event of exploitation of an original work for profit. Where that work appears in another work as an incidental part of a whole it cannot be assumed that copyright has been breached.
(Strictly my opinion for what its worth)
Hi Richard,
“If changes are made to an original work then copyright no longer applies.”
Be very, very careful here. It may vary from country to country but changing an original work does not necessarily create a new work and it does not invalidate any existing copyright.
US copyright law has the concept of derivative and transformative works. For example, if you just convert a colour image to black-and-white, that’s a derivative work and the copyright owner of the colour image will own the copyright to both the colour and B+W versions. The simple change to B+W is not transformative enough to create a new work and it does not invalidate the original copyright of the colour image.
A transformative work is a type of Fair Use (in the USA).
When is a change transformative and when is it only derivative? That’s usually for a court to decide. There have been several high profile cases in the US: This example involves public art but it was settled out of court. Shepard Fairey’s Obama poster was another big case and it was also settled out of court.
In Canadian law, there’s no formal concept of derivative or transformative works but court cases over the past dozen years, or so, have danced around it.
I shoot hotels, resorts, cruises. Most of these luxury properties hang beautiful artwork. Shooting architecture causes concern as we obviously need to document the spaces as they are decorated and clients rarely understand the copyright issues. How concerned should I be and what measures should I be taking to cover myself?
Hi Pam,
I don’t know where you are or what laws apply to you, and I’m not a lawyer. But *generally*, if the artwork is incidental – it’s in the background – you’re okay. For example, if you shoot a room, and there’a a painting over there on a wall, then that’s probably incidental. But if the painting is a larger feature of the photo, then it may not be incidental.
If a hotel/resort/hospital/corporate office/etc. was smart, they’d have some sort of copyright clearance included when they purchase any “permanent” artwork. Note that some hotels/etc. run art exhibitions in their lobby, lounge, etc. This “temporary” art rarely has any copyright clearance. Also, some hotels/hospitals/etc. have local artists supply artwork for room decor, (and that artwork is sometimes offered for sale), and these probably don’t have copyright clearance.
I’ve heard of photographers going so far as to remove paintings from walls prior to making a photo.
Perhaps an easier way is to have a clause in your photo contract that makes the client responsible for copyright clearance. You’re a photographer, not a publisher, not a lawyer. How are you supposed to know who the artists are, let alone track them down and get releases? Make the client responsible for obtaining any necessary releases from the artists involved.
Also, copyright isn’t just for art on a wall. If a hotel has a very unique piece of furniture, a one-of-a-kind design on a rug, etc., these could be copyrighted as well.
Also, here’s a brief USA list of some other objects that may cause copyright issues.
@Warren, thanks so much for the reply. Yes, I am aware of issues with furniture. I am a Getty Images contributor and they sent a call for us all to review images with designer furniture and pull shots.
Many of my cruise clients have very pricey artwork and insist on showing it. Often it’s art that’s for sale, sometimes part of their permanent collection. Often even the chandeliers are art.
I have a clause in my contract that places liability of use back to the client. BUT – I continue to have resort companies try and push all liability back onto me. I’m usually dealing with large corporate hotel chain HQ’s that want me to sign their contracts, not my own, and are not usually flexible. It’s always a very tough fight and I have to explain to them copyright concerns and why I simply can not agree to those terms. And I am willing to walk away if that clause is non-negotiable. It’s funny how often I hear that I’m the only photographer that has had issues with contracts, which makes me wonder how many shooters agree to those terms yet have no idea what they are signing.
Hi Pam,
You’re right about walking away a non-negotiable clause that puts the liability on you. How can you be held responsible for something over which you have no control? It’s like trying to guarantee the weather.
The problem is not usually with the act of photography but rather with the act of using the pictures. A photographer is a photographer, not a lawyer, not a publisher. It’s silly (and irresponsible) for a multi-million-dollar company to expect a photographer to protect and indemnify them.
Nevertheless, I think a photographer has a responsibility to advise a client of potential issues that might arise if no releases exist.