This is a brief overview of the UK copyright rules related to the use of digital or photographic images on the Internet. We hope this information will be useful for photographers, videographers, designers as well as for the clients hiring the professional creative services.
What is copyright in images and photos, and who owns it?
Copyright in images and photographs
Under the Copyright, Designs and Patents Act 1988, the copyright of original artistic works, such as photographs, is protected by law. Copyright is a right of authorship and a property right. It’s also a Human Right under Article 27(2) of the Universal Declaration of Human Rights. It is an incentive for creativity and creates a balance between users and creators and between the public interest and freedom of access. It’s a form of intellectual property (also known as “IP”) and it allows creators to make a living from what they produce.
Photographs, illustrations and other images will generally be protected by copyright as artistic works. This means that a user will usually need the permission of the copyright owner(s) if they want to perform certain acts, such as copying the image or sharing it on the internet.
References to “images” in this overview include:
- digital photos taken on mobile phones and digital cameras;
- images that were first generated on photographic film and any digital images created from them; and
- images such as diagrams and illustrations.
Who owns copyright in an image?
The person who creates an image (“the creator”) will generally be the first owner of the copyright.
However, there are various situations in which this is not necessarily the case. For photos, it may depend on when the photo was taken, as different rules may apply if the photograph was taken before 1989. Creators also have what are known as moral rights.
If an image was created as part of the creator’s employment, rather than by a freelance creator, the employer will generally own the copyright. It is also possible that, in instances where a person has arranged equipment and made artistic decisions prior to taking a photo, but wasn’t the one to press the trigger, the person making the arrangements could own the copyright.
An example of this could be where a photographer has made the creative choices in setting up a shot, but got an assistant to actually press the trigger. The creator of an image may choose to allow a person or organisation to license the work on their behalf, license the copyright directly themselves, or “assign” (transfer) the copyright to another person.
The term ‘licensing’ means giving another person or organisation permission to use a work such as an image, often in return for payment and/or on certain conditions for a specific period of time.
What if there is more than one copyright owner?
An image might have multiple copyright owners if there was more than one creator. An example might be a cartoon or illustration created by a number of visual artists, who then jointly license use to a website owner. This is different from copyright works which contain other, underlying works which are also protected by copyright.
For example, if you wanted to use image ‘A’ which also contains image ‘B’, then you would need permission from both owners of image ‘A’ and ‘B’, provided the inclusion of image ‘B’ was not purely incidental.
Some images which appear on the internet are controlled by picture libraries which either own the copyright in the images or have the copyright owners’ permission to license rights to use the images. The picture libraries normally restrict how the copies of the photos are used as part of their contract terms when they allow people to use the images. The restrictions may not arise out of copyright law: an image library can set terms and conditions of use in respect of images it supplies, including ones which are out of copyright, through a contract.
How long does copyright in images or photos last?
Generally speaking, in the UK copyright in images lasts for the life of the creator plus 70 years from the end of the calendar year of their death although the length of the copyright period will depend on when the image was created. That means that images less than 70 years old are still in copyright, and older ones may well be, depending on when the creator died.
For old images or photos, you may never be entirely sure if something is in copyright, but knowing the age of the photo will be a good guide to make an educated guess whether the photo is likely to be protected by copyright. There may be material in the image which helps to date it.
For instance, a photo of a particular brand of motorcar may be evidence that the photograph was taken after the first year of manufacture.
It is important to be aware that copyright duration can be very complex for certain older works (including some photographs) that were unpublished on 1 August 1989 and where the author has died.
Prior to the adoption of the Copyright, Designs and Patents Act 1988, certain unpublished works were granted perpetual copyright up until the point they were first published. In order to remove this perpetual copyright, the 1988 Act reduced the term of protection for such works to 50 years from the implementation of the Act.
This means that many works which were not published prior to 1 August 1989, and where the creator died before 1 January 1969, are due to remain in copyright until 31 December 2039 at the earliest. This will be the case for many photographs created between 1 June 1957 and 1 August 1989.
Are digitised copies of older images protected by copyright?
Simply creating a copy of an image won’t result in a new copyright in the new item. However, there is a degree of uncertainty regarding whether copyright can exist in digitised copies of older images for which copyright has expired. Some people argue that a new copyright may arise in such copies if specialist skills have been used to optimise detail, and/or the original image has been touched up to remove blemishes, stains or creases.
However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation’. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as ‘original’. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.
Is permission always required to copy or use an image?
Sometimes permission is not required from the copyright holder to copy an image, such as if the copyright has expired. Permission is also not required if the image is used for specific acts permitted by law (“permitted acts”, or sometimes referred to as “exceptions to copyright”). People can use copyright works without permission from the copyright owner, such as for private study or non- commercial research, although some exceptions are not available for photographs.
If permission is required to use an image, permission will need to be obtained from all the copyright owners, whether it is a single image with numerous creators,
a licensed image, or an image with embedded copyright works. Sometimes there will be one person or organisation that can authorise permission for all the rights in that image; in other cases separate permission may be needed from several individual rights owners.
The creator of a copyright work such as an image will usually have right to be acknowledged when their work has been used, provided they have asserted this right. If you are unsure whether or not the creator has asserted this right, then it is recommended that you provide a sufficient acknowledgement when using their work.
What if I do not know who the copyright owner is?
Copyright does not disappear simply because the owner cannot be found. Works for which one or more of the copyright owners is not known or cannot be located are referred to as “orphan works”.
You may want to try to find an alternative image that can be licensed through the creator or a picture library. If not, and after a diligent search you cannot trace the copyright owner, you may be able to apply for an orphan works licence from the Intellectual Property Office.
The IPO orphan works licensing scheme allows for the commercial and non-commercial use of any type of orphan copyright work. Before making an application for an orphan works licence, you will need to undertake a diligent search for the right holder(s). If you are unable to trace the right holder, you can apply for an orphan works licence using our online application form.
Further information including guidance on how to complete a diligent search and sources for checking is available here.
If you believe that a work in which you hold the copyright has been licensed as an orphan work, you can contact the IPO through the register of orphan works.
What if there is no © (copyright) symbol, year or name with the image?
The copyright symbol does not have to be present for copyright to exist, so just because there is no name or copyright symbol associated with a photo or image does not mean the image is not protected by copyright.
Sometimes uploading and downloading images causes the associated metadata to be removed accidentally. Metadata is embedded within the image and can give details of the copyright owner. Deliberate removal of metadata that identifies the copyright owner is unlawful.
Is there any way I can be completely safe when I use an image from the internet?
The vast majority of images on the internet are likely to be protected by copyright, so it is only safe to use it if you have specific permission to do so through a licence; or your particular use is specifically permitted in the terms and conditions of the website supplying the image and this is the copyright owner’s website or another website which has the copyright owner’s permission to allow other people to use an image; or if you have established that copyright has expired; or if you are using the image in a way which is covered by a permitted act/ exception to copyright (see above). The use of licensed images is usually much safer than using unlicensed images which offer no protection against infringement.
What are the consequences of copyright infringement?
When someone infringes copyright, there are various courses of action that could be taken by the individual or organisation that owns or administers the copyright. The user of the image may be asked to purchase a licence, and a commercial arrangement might be reached after which no further action is taken. However, legal action might be taken by bringing a claim in court which could result in having to go to court for a hearing.
Court cases can be expensive, as they often result in the user of the image paying the cost to use the photo, plus legal costs of themselves and the copyright owner and possibly other financial compensation for copyright infringement, which may amount to more than the cost of a licence to use the image. Further, the user of the infringing copy could also be asked to take down and permanently remove all copies of the image from websites as well, unless permission from the copyright owner is secured.
Deliberate infringement of copyright on a commercial scale may also lead to a criminal prosecution.
Even in situations where people may think their copyright infringement will not be detected, they run the risk of being discovered and subsequently being pursued through the courts.