Dear Appy: Including Wall Art in Photos

Marty C. asks: “If I am photographing a building or a house with artwork on the walls and a magazine wants to publish the images, are there copyright concerns regarding the artwork on the walls?”

Excellent question, Marty. In short, there are certain considerations you should take into account when incorporating other creative works into your photographs. But at what point do you need to be “concerned?” As with many questions involving legal issues, the best answer is, “it depends.” Even with no actual knowledge of the legal underpinnings, it’s very easy for folks to offer up answers with complete confidence and conviction, particularly when it’s someone else’s problem to deal with if anything goes awry. Unfortunately, attorneys don’t get paid as well as they do because the laws are so cut-and-dry. There are plenty of examples where people have been sued for this type of issue, and if you rely on general advice that might not apply to your situation, the next lawsuit could be yours to defend.

You can think you’re following all the rules and still find yourself in this position. Check out the lawsuit over the incorporation of various works of street art in a Mercedes ad campaign. Mercedes had a permit from the local city to film in the subject location and the works were well in public view, so they probably thought they were doing everything “by the book.” Nevertheless, the case raises many valid questions about the incorporation of street art into other works, particularly as to how such works relate to architecture and its specific qualifications for protection under the law.

I see this type of question frequently, not just for artwork, but also when photographers are up against someone claiming copyright ownership or another form of intellectual property in the subject matter being photographed (e.g., an interior designer or architect attempts to prevent photography or insists on “trading licenses” for their own access to the photos). Though related in some ways, such situations would be better addressed in a separate article, so for our purposes here, we will specifically refer to indoor works of art that are out of the public view, such as photographs, paintings, drawings, and other 2D illustrations, as well as 3D works like sculpture. In short, those are generally protected by copyright (with some exceptions), so it’s a good foundation on which to discuss some of the things you should consider when incorporating others’ artwork into your own works.

DISCLAIMER: I am not an attorney. This article is not legal or financial advice and should not be treated as such. You will see words like “typically” and “generally” used throughout, because some or all of the topics discussed here may not apply to your specific situation. This article is meant only to provide helpful talking points for a conversation between you and your attorney. It’s also worth noting that the topics discussed here are based on U.S. laws and may not apply in your jurisdiction.

TL;DR — General Questions, Condensed

I may or may not have a reputation for being a bit verbose, so for the folks who are seeking an abridged answer to Marty’s question, here are the questions I would generally ask myself in order to determine my best course of action:

1. Is the work appearing in my photograph likely protected by copyright?
   • If yes, is the use in your photograph (as well as its incorporation in any use your client or licensees might make of your photo) likely to be considered fair use?
   • If the work is likely protected by copyright and one or more intended uses would not likely fall under fair use, your options would generally be to 1) seek written permission from the creator, 2) remove the work from the scene, and/or 3) remind your client in writing that no releases have been obtained unless specifically provided, and that the client assumes all liability for use of the images.
2. Is the creator of the work likely to hold any moral rights in the image, and would the intended use of the image potentially infringe on such rights? Protections may vary between jurisdictions but this is an additional consideration.
3. Are any models depicted in the work for whom a model release is not documented? Even if a model has willingly posed for a work such as a photograph, their consent for the usage of their likeness in connection with things like advertisement or potentially sensitive subject matter would best be obtained—if this is not possible, you may wish to reconsider your incorporation of the work into your own image.
4. Might the incorporated work somehow be subject to any other property rights that would make it advisable to obtain a release? This is, in my opinion, a less likely issue, but bears mentioning.

Copyright Implications

The most obvious concern when incorporating others’ works of art into our photographs is the extent to which copyright governs that incorporation and the use of the resulting photographs. Most of us know what it feels like to see our work published without knowledge, consent, or attribution, so a sense of empathy toward other visual artists should come naturally to us. That said, we don’t want to be unduly burdened or creatively limited when capturing architectural scenes, particularly when the included artwork reflects our client’s influence on the project (the essence of which is exactly what we are attempting to showcase in the photography).

Generally speaking, visual works of art are protected by copyright as soon as they are created (legally, “fixed in a tangible form”). Unless the work exists within the public domain, it is generally subject to copyright. Whether your incorporation of a copyrighted work into your own photograph infringes on that copyright is another matter. And in practical terms, regardless of whether your use is technically an infringement, perhaps just as important is how the creator of the work feels about it. As I’ve said before, being right doesn’t prevent you from being sued. Of course, there are many uses of copyrighted imagery occurring every day that have not been raised as infringement simply because the artist is either unaware of the use, or considers it to be within the scope of their expectations (even if they could technically raise the issue).

Fair use

The fair-use exemption must be one of the most poorly understood of all aspects of copyright law. It is listed as an affirmative defense in almost every infringement claim, arguably in many cases as a last-ditch effort from folks who know better but are hoping to mitigate their liability. The fair-use exemption is actually quite narrow, and in an infringement claim, the onus is on the responding party to prove why the use does qualify as fair use, rather than the other way around.

There are four main factors considered in deciding whether fair use applies to the use of a work (paraphrased from copyright.gov and with my comments):

Purpose and character of the use (including commercial vs. non-profit educational purposes)

This factor is based on how the work is being used. For fair-use purposes, I’d venture that magazine usage, even if editorial, would still be considered commercial, with some exceptions. Commercial usage doesn’t automatically mean that fair use does not apply, but it is a factor.

Nature of the copyrighted work

Analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. In effect, the more creative or imaginative and less technical the copyrighted work is, the less likely it is that fair use applies.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole

Essentially, how much of the work was used? In some cases, the entire work can be used and still be considered fair, but there have been instances where a small portion was used and that was not considered fair. It seems logical to me that this factor would also examine how prominently the work is featured in our final image. If the work encompasses a substantial portion of our final image, I would expect this would be viewed much differently than if its appearance were merely incidental and insignificant compared to the final image.

Effect of the use upon the potential market for or value of the copyrighted work

To what extent does the use harm the existing or future market for the copyright owner’s original work? Does the use displace sales of the original, or would the use cause substantial harm if it were to become widespread? In some cases, it could even be argued that incorporation of the copyrighted work actually affects its value positively.

It is noted that this is not an exhaustive list. Other factors may be considered, depending on the circumstances. In practical terms, at least for our purposes, I feel there’s one key question from which these four factors stem: To what extent did we, the photographer, rely on the incorporation of the copyrighted work, to create our photograph? Phrased differently, does the creativity and originality we put into our work stand alone if the incorporated work were to be removed? Unfortunately, the answer is likely subjective and cannot usually be reduced to a math equation or simple if-then scenario. There are other potential issues such as “implied license” or variations on that theme—for example, if an interior designer purchases a painting to display in a client’s project, the artist would likely be aware that the designer intends to have the installation photographed for their own marketing.

Moral and other rights

Let’s assume you feel confident that your incorporation of an artwork in your photography does not infringe on the artist’s copyright. That’s it, right? Not necessarily. There is another form of protection for artists and models that people don’t often think about, but can have significant implications on how the work is used. Moral rights, which can vary widely in scope depending on the legal jurisdiction, generally relate to protecting the creator’s honor or reputation. For example, let’s say our own Mike Kelley discovered one of his beautiful Airportraits prints had been incorporated as a significant feature in an interior photograph of a luxury high-rise apartment, which was then published on the front cover of an environmental magazine with a headline like, “The Jet Setters are Killing the Earth.” Such a use would almost certainly propound a much more somber interpretation of the image and could very well affect its future market value.

A less likely, but still potentially problematic scenario would be in the event a model depicted in a photographic print is associated with a usage that is objectionable to that person. For example, if a recognizable face or likeness is visible in a photograph that is incorporated into our interior photo, which is, let’s say, later licensed to a tobacco company for its marketing purposes, that would generally require a model release. The language of the release that the photographer may or may not have obtained from the model, may or may not cover that type of use. Unless you can locate the model and seek permission (or a copy of the model release from the photographer), it’s best practice to at least carefully consider the intended uses of your final image.

Best Practices When Photographing Third-Party Works

Educate your clients and licensees—and get it in writing

When we license our work for a fee, there is potentially an implied representation on our part that because we are charging for the right to use the work, that the work “as licensed” is fit for that particular purpose. This is why it is important to educate our clients and licensees that copyrightable elements may appear in the photographs and, unless we have provided a written release from a third-party copyright holder or other potential interest, no release of intellectual property is expressed or implied. It may also be advisable to include a general disclaimer that the images are provided “as-is” and are not warranted/represented as being suitable for any particular purpose. I’ve even seen contracts that place this responsibility on the client, requiring the client to certify that they have secured any necessary permissions for the photographers’ own use and licensing of the photos. Think this is going overboard? Imagine if a magazine to which you licensed images, suddenly faced a demand of injunctive relief from a third party for images you licensed to them—meaning they would be expected to cease sales and distribution of all copies of the publication that include the allegedly infringing photos? Regardless of the final outcome, the expense involved in complying with or fighting such a request is potentially significant. Who do you think the magazine will then turn to for reimbursement of their expenses?

All disclaimers of this nature would go in your contract (including a license agreement to third parties) and I recommend raising this subject with your attorney when you are designing your architectural photography contract. Be sure to check out the APAlmanac Contract Template in the Store, which you can adapt to your own needs.

Obtain good insurance and know your policy

It recently came to my attention that the scope of coverage in business insurance policies for third-party claims of copyright infringement is often quite narrow. Check with your insurance company, but unfortunately, coverage of this nature is often designed exclusively for instances where you infringe someone’s copyright in the course of an advertisement (the exact boundaries of this remain unclear to me, but the language is fairly standard in business policies). This means that your alleged infringement of someone else’s copyright in the course of your business may expose you to liability that your insurance will not cover. However, some better-equipped policies will include a “duty to defend” clause, in which your insurer will provide for your defense in any suit seeking damages, even if the damages themselves are not covered. In such a scenario, the insurer could still potentially settle the case on your behalf in order to limit their own expenses in providing your defense.

There are other potential liabilities you may face in the course of an alleged third-party infringement claim. For example, if a client prints 50,000 catalogs and has to destroy them because you licensed them an image that included someone else’s copyrighted work, this might fall under “errors and omissions” coverage. Don’t get scared at the thought of this—just get covered. For further reading, check out my Part 1 and Part 2 articles on business insurance.

Risk tolerance and common sense

Ultimately, you must decide how much risk you are willing to assume when incorporating third-party works into your photographs. Almost any major advertising photoshoot will have all visual elements scrupulously cleared for permissions beforehand, because not only is that usage category probably among the least likely to fall under “fair use” in any circumstance; the company does not want to risk any kind of injunction against a campaign costing hundreds of thousands of dollars (or more) to produce. Many of our projects introduce far less risk than this and involve merely incidental use of artworks as part of the styling of an interior scene. There is some level of risk every day that we will do something, copyright-related or otherwise, either purposely or accidentally, that inadvertently results in some kind of legal dispute. The best we can do is work with the information and knowledge that we have, while employing a bit of common sense along the way.