Photos, Sculptures, Visible Artwork, and Copyright. What You Need To Know.
Updated: Dec 13, 2021
As an author, I'm always searching for that photo for my next book cover or blog post.
However, it isn't as easy as using a photo you find by searching Google. Don't assume because a photo is on the web that it is okay to use.
Pixabay, which I love and use, will say in a particular photo if it can be used for commercial or editorial use only. But you can't assume it's still okay to use. I can take a photo that I take, (or steal from the web, under an assumed name of course) put it on Pixabay, or any other FREE site and say, use it all you want. Just because it's there, and I give you permission, doesn't mean you can actually use it.
Let's assume I put a up a photo that I took. (No stealing here.) And let's say that photo has a bottle of Jack Daniel's in it. (I love JD.) Yes, I legally took the photo, and I can let you use it. But, the owner's of what's in the photo may not want you to use...IE, Jack Daniel's.
Why you ask? Well, Jack Daniel's owns the rights to anything Jack Daniel's. So you can't use that photo for anything commercial. Unless you get prior authorization.
Are you confused yet?
Let's see if I can make it more understandable.
I own the photo, but not what's in the photo. Whether it's a painting, artwork, sculpture, or practically anything else.
So, something like the Charging Bull, by Arturo Di Modica, in the Financial District of Manhattan, is copyrighted by the sculptor. I can only use that photo for editorial purposes. I also have to give credit to the sculptor of the statue.
But if I take a photo of the statues on the grounds of the Supreme Court, Contemplation of Justice or Authority of Law, I can use those for a book cover if I want to. Why? Those are not under copyright by the sculptor, James Earle Fraser.
Now, how do you find this out? Research. You can use the Copyright office to see if there is a copyright on the item in question.
Some people say, 'well if it is on public land in public view, it's free to use,' IE the Bull at the financial district. But that is not true. The sculptor of the statue has still retained his ownership of it, and he is just letting the city of New York 'borrow' it.
The Statue of Liberty, at Ellis Island, that is not under copyright. However, the Lady of Liberty outside the casino and hotel, New York New York in Vegas, is under copyright by the creator. He made enough changes to the design that the sculptor was able to receive a copyright on the sculpture.
Here's the deal, if you use a paid photo provider like Shutterstock, and you purchase a license for use on a photo, you won't have a problem. If you look up the Charging Bull, you will see on Shutterstock that it is listed for editorial use only, and you have to pay for it, there will also be instructions on how to give credit to the sculptor.
I found the Bull on Pixabay, it says free for commercial use, but from my research, I found that it is not true.
You have to do your due diligence and research any photo you use. If you can't track the ownership, you shouldn't use it. By using a photo that you don't have permission to use, you open yourself up to a lawsuit. I know of one case in which a person used a photo for a blog post and was sued. She thought it was free to use and had to pay 10k to the owner of the photo.
There are some sites like Kaboompics, which I use regularly, that have free photos and you can be assured that you can use them with no penalties. They also link to iStock for photos for purchase. Now Kaboompics does have some limitations, but for free photos, it is pretty open. I feel very safe using photos from Kaboompics.
Use common sense. Take your time to research the photo, or better yet, take your own or buy from some place like Shutterstock. Just make sure that what's in the photo isn't copyrighted.
Remember too, that if the photo you are using has people in it, you need a release from them, unless it is covered under your licensing agreement. However, there are rules as to what you can use that photo for. You can't show them in any kind of negative way or defamatory way.
My last word of caution when buying a license to use a photo from some place like Shutterstock, (I use them regularly and I am familiar with their policy. But this will hold true for any other site.) Pay attention to the license you get. A standard license will be cheaper, but it will not give you the freedom to use the photo. Especially for things like pens, coffee mugs, or t-shirts. A standard license will not give the distribution you want for the book either. It is limiting.
My suggestion is to get the extended license. This will give you what you need.