Replacing items in a free to use interior design photo.

[forky4]

Hi there

I am using some images from a free stock photos website. It says on their website

1.All photos and videos on Pexels are free to use.
2. Attribution is not required. Giving credit to the photographer or Pexels is not necessary but always appreciated.
3.You can modify the photos and videos from Pexels. Be creative and edit them as you like.

Using photoshop I am looking to use some interior design/decor images e.g maybe a wealthy looking persons lounge for example.
I am looking to replace some items of furniture and lights with items that I am selling. Then publish them on social media with a view to selling the items I am promoting. Most people wouldn't be able to tell it has been photoshopped.
I am using the setting and some of the items from the original photo will still be in the finished edited image - like a chair, background decor etc. Generally speaking there won't be any people featured.

Would there be any danger of say an interior designer or a home owner taking me to court saying for example their work/home/setting has been unfairly used to make money. I'm pretty certain the photographer would not have been the interior designer or home owner, they would have used their skill (art direction) to take a great photo, but they have now submitted the images to the website for anyone to use.

The website has a 'What is not allowed' section.

1.Identifiable people may not appear in a bad light or in a way that is offensive.
2.Don't sell unaltered copies of a photo or video, e.g. as a poster, print or on a physical product without modifying it first.
3.Don't imply endorsement of your product by people or brands on the imagery.
4.Don't redistribute or sell the photos and videos on other stock photo or wallpaper platforms.

I think only number 3 might apply, if at all, but I'm not sure. There are no people in the images and no named brand logos on show in any images ( although you don't tend to get logos showing on furniture or interior decor). Could someone argue some sort of implied endorsement is at play by association ? I don't think anyone would be able to identify the home as being famous or identify it to a person from the image. I won't be crediting is as so and so's house. Locations will all be unknown. Do you think I would be ok under fair use ?

If I find an image I want use on say wiki images with a Creative Commons Attribution 4.0 International Licence. As long as I attribute the original photo would I be ok doing the above with these also?

Thanks in advance

[AndyJ]

Hi forky,

I can't see any problem with using the design of the interior or the existing furniture in the image in the way you suggest. I assume that the original photographer would have obtained permission to do the shoot if there was any suggestion of infringing anyone else's intellectual property, and since you are only reproducing that part of the original image under licence you should be pretty well covered. That said, most interior design has so far failed to qualify for copyright protection, and any furniture would need to be of a very high quality, preferably by a famous designer, to qualify for copyright. Things like paintings on the wall in the background would probably be exempt by virtue of section 31 CDPA, that is to say, their inclusion was incidental, and in any case you are not responsible for that, unaltered, part of the work.

And you would not be responsible for any inadvertent endorsement either since if there is any (and I don't think for a moment there will be) then that is down to the original photographer, not you. When it comes to the items you are adding, I'm not clear whether these are things you have made yourself, or are things you have bought and now want to sell on. If it's the former there is clearly no problem with that as you own the copyright in anything you made as a work of artistic craftsmanship. If it's the latter, then just putting the items in an existing image is not going to imply any endorsement by the previous photographer, the interior designer or the owner of the home, so again you are on pretty firm ground.

Re-issuing your altered version under a CC licence should be OK as long as you clearly credit the original photographer as well as yourself. Obviously the CC BY licence is more restrictive than the one issued by Pexels, and this goes against the spirit of their licence. However I don't think it will do any serious harm so long as the original photographer gets a fair credit for his creativity.

So the only iffy bit is the fact that you will be using this photograph to advertise your items for sale, which while you are not selling the image itself, may be viewed by Pexels and the photographer as in bad faith given their exclusion in paragraph 4. If there is a way of contacting the photographer, I would be inclined to run the idea past him just in case, but that is being ultra cautious.

I hope this helps.

[forky4]

Hi Andy

Thankyou very much for your reply. Really useful. When I mentioned the creative commons licence, I didn't actually mean me reissuing the adapted images as stock photos for anyone else to use.
I meant using images from wiki images that were under Creative Commons Attribution 4.0 International Licence to do the same thing i.e another source of images to use. Apologies I probably didn't make it clear.

Just wanting to clarify that the bit you mentioned as possibly being iffy. Given that I am not looking to reissue any images to any photo libraries or under a creative commons licence via wiki images in any way, would you say I should be ok to advertise items in the adapted location settings I mentioned ? The items for sale aren't actually my own but I am promoting them on behalf of my clients.
Do you still think that promoting items for sale that way might still be seen as in bad faith in any way.

One final question - I have an old magic lantern slide dated around 1890-1900 of an interior view from a large country hall. I think these were published and sold as tourist slides in their day. I was thinking of maybe featuring some items on that, albeit in black and white.
The actual building and interior were demolished in 1967 so no longer exists. Given that it was an ancestral home and the family are still technically living on the estate, would I still be able to use the image ? Date wise Circa 1890 the image I think I am ok, but if I am using an image of a private residence and maybe a royal residence would that come under crown copyright ? Are there any privacy laws that may apply and I need to worry about ?

Thanks

[AndyJ]

Hi forky,

Since the Pexels terms and conditions are fairly specific about not redistributing or selling the modified photos on other stock photo or wallpaper platforms, and you don't propose to do that, you probably don't need to worry about that. I was thinking more in terms of how the non-commercial use part of a Creative Commons NC licence would be infringed by using the image to sell stuff. Clearly the Pexels licence is broader in scope than a CC NC licence.

As for the magic lantern slide, since this would have been made before the 1911 Copyright Act, the copyright term would have been determined by the 1862 Copyright Act which said that copyright lasted for the lifetime of the photographer plus seven years after his death. This remained the case even where ownership of the copyright transferred to the person who commissioned the taking of the photograph, which seems likely in this case. If the image was made in the period 1890-1900, copyright under the 1862 Act would probably still have been running when the 1911 Copyright Act came into force. Section 21 of that Act changed the provisions for photographs to a fixed term of 50 years from the date the photograph was made. So we can be pretty sure that copyright will have ended no later than 1950.

There are no privacy implications in publishing the lantern slide. Crown copyright only applies to works made by servants of the Crown ie civil servants etc. But even if it did apply to this image, the term stipulated in the 1911 Act was 50 years from the publication of the work concerned. It is perhaps arguable that the slide may never actually have been published, that is to say, made available to the public. Under the 1911 Act it would appear that in this situation, Crown copyright would be perpetual until such time as publication of the work was authorised, and then the 50 year term would start. When we fast forward to the 1988 Copyright Designs and Patents Act, the term for an unpublished work to which Crown copyright applies becomes no more than 125 years from the date the work was made:

(3) Crown copyright in a literary, dramatic, musical or artistic work continues to subsist—

(a) until the end of the period of 125 years from the end of the calendar year in which the work was made, or

(b) if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published

In other words, in the very worst case Crown copyright may be in force for another 3 years. However I don't think that Crown copyright applies here so that shouldn't be an issue.

I hope that re-assures you.