Commercial use of photos on physical goods

[animalsandplants]

Hello. I am considering creating t-shirt designs, to sell for profit. Some of my ideas involve the use of photos. I want to understand exactly what I can and cannot do when it comes to copyright rules for such a "deeply" commercial use of photos.


Firstly, have I understood the basics correctly: I can use my own photos, CC0 photos or photos I buy. However: faces, logos, trademarks have to be removed. So far so good?

In the CC0 case, I also have to confirm that the person uploading the photos actually owned the copyright to begin with. I have to find, using TinEye, the oldest copy on the internet of that photo. If it is copyrighted, then it is copyrighted everywhere. If not, it’s fair game. Accurate?


Secondly, there are somethings my research just did not help me with. For example, buildings and landmarks. I understand important (man-made only, right?) landmarks can be copyrighted, and buildings are copyrighted by architects. Can someone copyright, for example, the grand canyon or mount etna?

But what interests me the most is how this affects landscapes in general. Many of my most beautiful personal pictures are of cities taken from hills or tall buildings. I already know for a fact that the Eiffel Tower at night is copyrighted, but does that mean that even picture of the Eiffel tower from afar, a picture of the landscape of Paris, cannot be put on phyisical products? Can I use my own photos of cities commercially at all?


If copyright rules are so stringent then I start to wonder about even crazier things. Can I use my own photos of other people’s properties? I have done many sports in rented equipment (rented boats, rented skiis etc.). Can I use commercially photos or screenschots from my gopro where some of that equipment is in shot (of course, after removing trademarks)?


If I ask someone to make some modifications to my photos in photoshop, who owns the copyright to the end result? Can I put a photoshoped image on t-shirts?


Lastly, and this is probably the thorniest question. All photos on Pixabay are under a license that does not allow you to make t-shirts with them. But I contacted the owner – or at least the user profile on pixabay that uploaded a photo I am interested in, using the pixabay messaging system - and he gave me his permission. Does that have any value or if I start using that photo I could end up with a DMCA or something similar anyway?

Thank you.

[AndyJ]

Hi animalsandplants

Firstly, have I understood the basics correctly: I can use my own photos, CC0 photos or photos I buy. However: faces, logos, trademarks have to be removed. So far so good?

At the risk of confusing you further, it's worth saying that in the UK there's no general privacy law and so removing faces is not strictly necessary. There's only a potential problem where the impression given by using someone's image is that they are endorsing the product. This is an issue especially with celebs (eg sportsmen and women) who are known for endorsing products (see Fenty v Top Shop). Secondly you don't need to avoid trade marks unless, again, it appears to your clients that the brand has authorised or produced the product you are selling, ie the tee shirt.

In the CC0 case, I also have to confirm that the person uploading the photos actually owned the copyright to begin with. I have to find, using TinEye, the oldest copy on the internet of that photo. If it is copyrighted, then it is copyrighted everywhere. If not, it’s fair game. Accurate?

Yes the first part of that is good practice. The second part is not strictly true. The starting point should be to assume that any reasonably modern (ie made within the last 100 years) image which you find is still protected by copyright. If the Creative Commons or similar licence appears genuine from what you discover through due dilligence, then it is safe to go ahead and use the image. But remember a CC licence doesn't mean that there is no copyright, just that the copyright owner is allowing the work to be shared etc freely.

Secondly, there are somethings my research just did not help me with. For example, buildings and landmarks. I understand important (man-made only, right?) landmarks can be copyrighted, and buildings are copyrighted by architects. Can someone copyright, for example, the grand canyon or mount etna?

While the design of a building is usually subject to copyright, in many jurisdictions the law allows a building or piece of sculture located in a public place to be reproduced graphically including for commercial purposes. Certain countries such as France and Italy, restrict the commercial use of such photographs. If you google 'Freedom of Panorama' you can find out more about this. For instance the Wikipedia article is fairly comprehensive.
And on your final point, no, natural geographical features can't be subject to copyright. Occasionally you hear scare stories about some views such as skylines of cities (eg the Hollywood sign) being registered as trade marks, but these trade marks are rarely registered outside the specific country where the view is located and thus probably won't be an issue. In trade mark disputes, the criteria are quite different to copyright issues, and merely copying a trade mark does not necessarily amount to infringement.

But what interests me the most is how this affects landscapes in general. Many of my most beautiful personal pictures are of cities taken from hills or tall buildings. I already know for a fact that the Eiffel Tower at night is copyrighted, but does that mean that even picture of the Eiffel tower from afar, a picture of the landscape of Paris, cannot be put on phyisical products? Can I use my own photos of cities commercially at all?

Copyright in the Eiffel Tower as a work of architecture ended many years ago, assuming it ever truly ever existed. The issue of the Tower at night concerns the light show which under French law has been deemed a creative performance which is protected by copyright. If you had a night time picture of the Eiffel Tower where it was not illuminated, other than by natural light, or the street lights etc, that would not be protected. As for general scenic pictures of cities, you need to refer to the local law concerning the freedom of panorama. In the UK and USA for instance, there are no restrictions on commercial use of such scenic images.

If copyright rules are so stringent then I start to wonder about even crazier things. Can I use my own photos of other people’s properties? I have done many sports in rented equipment (rented boats, rented skiis etc.). Can I use commercially photos or screenschots from my gopro where some of that equipment is in shot (of course, after removing trademarks)?

Other people's property is fine as long as you are not infringing their right to privacy in their family life (Article 8 of the European Convention on Human Rights). For instance a photograph of a house which clearly showed an occupant inside should be avoided, whereas a photograph of the outside of an office building which clearly showed people inside, for instance in a foyer, would not impact on their privacy rights because no-one could have an expectation of privacy in such a location. As for the inclusion of objects such as sports equipement, these are unlikely to be protected by copyright as they are utilitarian in nature, not artistic works. However to take an example where copyright would be involved, if you photographed a scene and there happened to be a movie poster (an artiistic work) in the background, provided this was incidental to the main shot, this would be non-infringing (see section 31).

If I ask someone to make some modifications to my photos in photoshop, who owns the copyright to the end result? Can I put a photoshoped image on t-shirts?

If the alterations are substantial and effectively a new work has been created, then the person you employed to do the work would own the copyright in his altered version, but assuming you commisssioned the work and paid for it, there would be a implied licence for you to use the altered version. If you wanted to be sure of this, you could draw up a simple document for the photoshop editor to sign, licensing you to use the work as you intend, or indeed to transfer his copyright to you permanently. However a few tweaks or some cropping of an image is unlikely to amount to a substantial change, especially if you had specified exactly what you wanted. Copyright only comes into existence when someone does something creative which reflects their own spirit or personality through the choices they make. If you had made the creative decisions, and the photoshopper is only carryng out your instructions, albeit by using his/her professional skills, this won't really pass the test to see if a 'new' work has been created.

Lastly, and this is probably the thorniest question. All photos on Pixabay are under a license that does not allow you to make t-shirts with them. But I contacted the owner – or at least the user profile on pixabay that uploaded a photo I am interested in, using the pixabay messaging system - and he gave me his permission. Does that have any value or if I start using that photo I could end up with a DMCA or something similar anyway?

Pixabay's terms and conditions only apply to general situations, making it easier for individuals to upload their stuff without having to get into the detail of licences. However any individal copyright owner can negotiate his/her own licences separately from the general rule. Clearly you need to be fairly sure that the person you are dealing with is in fact the copyright owner, and he/she hasn't just reposted someone else's work. For the avoidance of doubt, make sure you have the artist's permission in writing, specifying the particular work and what usage he/she is authorising. That way you should not face any major problems.

I hope this clarifies things a bit for you

[animalsandplants]

Thank you very much for your reply.

My situation is particularly complicated by the fact that ... I want to know exactly how copyright works and how it works across MANY JURISTICTIONS because I want to know to what extent I can use the tens of thousands of pictures that I have made over many years in many different countries for making money and for making money across borders. Trying to be creative and artistic is hard enough, but I always have to wonder "hey that would be cool... but wait, is that legal?"

I am mostly looking to turn those pictures into designs for t-shirts, use a service like Teespring and market them... EVERYWHERE. It's not about the UK. I'm actually Romanian and I'm currently planning on marketing on Teespring to americans first and foremost. Again, the pictures have been taken in all sorts of countries and I'm not just selling photos on stock sites (i'm not a profesional photographer, i cant compete with photographers on those sites), but creating merchandise. So it's pretty much the highest level of difficulty regarding copyright.

"If the alterations are substantial and effectively a new work has been created, then the person you employed to do the work would own the copyright in his altered version, but assuming you commisssioned the work and paid for it, there would be a implied licence for you to use the altered version. If you wanted to be sure of this, you could draw up a simple document for the photoshop editor to sign, licensing you to use the work as you intend, or indeed to transfer his copyright to you permanently."

There are lots of websites where you can supposedly ask for photoshop for FREE. "or some cropping of an image is unlikely to amount to a substantial change," -> I can easily crop my pictures with my own programs. Photoshop only comes into play for sophisticated things. "alterations are substantial" -> substantial is somthing fairly subjective. "you could draw up a simple document for the photoshop editor to sign," -> How would this owrk on reddit or photoshopgurus.com? If I use any service like reddit or any free forum for photoshopping.... can the person at the other end contact Teespring and give them a DMCA simply because they photoshopped my pictures?

" For the avoidance of doubt, make sure you have the artist's permission in writing, specifying the particular work and what usage he/she is authorising". Firstly, I checked the forums on Pixabay and apparrently anything uploaded before 2019 is public domain. Or CC0. I'm not sure which but their license was that, either CC0 or public domain before 2019. Secondly, Permission in writing means official document, with hand signature and all that? Or is it enough that that person sent me a reply on Piaxabay's internal messaging system that he is okay with the use I told him? I researched the photo as much as the internet would allow me and I would bet on that guy being the original copyright holder. Tineye only gave like 3 results for that photo for the entire internet.

"a CC licence doesn't mean that there is no copyright, just that the copyright owner is allowing the work to be shared etc freely." So can I or can I not use a CC0 photo on t-shirts in a commercial manner? CC0 Is supposed to be free for ANY use, including commercial. It's not just CC, it's CC ZERO. Is that actually the case or is CC0... a LIE in essence? "The starting point should be to assume that any reasonably modern (ie made within the last 100 years)".... At this point I am wondering, are literally any and all photos in the entire world younger than 100 years off limits for t-shirts? Unless they're from a site where people pay for photos like shutterstock? I read how in theory it is not RECOMMENDED to use photos from the internet, but recommended is one thing, difficult another, almost impossible is yet another completely different thing.

[AndyJ]

Hi again animalsandplants,

I'm afraid I can't give you details of copyright law for every jurisdiction! But since most countries have signed up to the Berne Convention that gives you the basics which will apply virtually worldwide.

Secondly I've outlined how various jurisdictions react to the issue of freedom of panorama, and provided a link to the wikipedia article. That's the area where there is the most variation between the various legal systems.

Things like CC0 licences should apply across most national borders and so if you are sure that a CC licence is valid then you should be free to use the image worldwide without hassle.

Moving to the photoshop aspect, again the courts of the various nations will take differing views of what constitutes a new work, but if you establish an understanding with the photoshopper before he/she starts any work, that should be helpful later in preventing problems. So you need to explain what you want to do with the finished artwork and that you want a full and exclusive licence to use the work once it has been completed. It doesn't matter if the photoshopper wants to retain copyright, so long as you get an unambiguous licence to use the work. This can be in an email, but it must be in some hard copy form so that if necessary you can produce it later as evidence of your right to use the image.

I can't comment on the various old Pixabay licensing regimes, but if you contact the individual who has uploaded the image and you are sure they are the author of the image, you should also be able rely on an email or pm from them as proof that you can use their image.

If you deal with microstock agencies, such as Shutterstock, then life becomes much simpler. Just make sure you obtain the correct licence and make sure it applies worldwide, and you should find yourself less open to claims in the future.

I hope this helps.