Getting Right with Image Usage

Photographs can be highly prized objects, and everyone involved in a photograph may have some rights in it. Here's a list of the major parties to consider when it comes to photographic rights:

The subjects of the photo. Any people recognizable in the photo have rights to the use of their image, though news organizations have special privileges, and famous people have fewer rights than others. The owners of certain objects and places claim rights to photos of their possessions as well, but these claims are often a matter of controversy.

The photographer. A lot of people make money from taking and selling photographs, or they have non-financial interest in the use of their pictures, so the rights of the photographer always have to be considered before you use a photograph.

The developer. If a creative or artistic process is used in the developing of a photograph from the original image, the developer could possibly claim rights to its use.

The publisher. When a photo is published in any form — online, in print, or on CD-ROM — the publisher has many responsibilities and some rights.

The viewer. The public at large has the right to be protected from certain kinds of images, although there is tremendous legal activity and controversy over the extent of these rights, and laws (and prosecutorial zeal) vary by nation, by state or province, and even by municipality.

You need to understand two concepts in order to use photos without risking legal trouble. The first is that, unlike other items you might buy, you can't just assume that someone who gives or sells a photo to you has all the rights to it that they need to in order to sell it. For example, if someone gives a friend a photo, and that pal gives it to you, then you publish it, the person who handed the photo over to the friend in the first place can sue him and you both for damages — almost no matter what our friend told you when you bought the picture.

The only way to protect yourself from these cascading rights concerns is through a scary-sounding legal principle called indemnification. As the purchaser, you need the seller to indemnify you — to agree to protect you from legal liability — from the subjects or photographer or previous publishers. This is a big burden for sellers to take on, and only a few sellers of images on CD-ROMs and stock image Web sites are willing to do so.

If you can't get indemnification from your seller, you have to get permissions from the models for any people recognizable in the image and from the photographer. (The seller may claim to be the photographer, but this can be hard to verify.)

Well-known people are just a little bit different from the rest of us when it comes to having their pictures taken. You can often use a photo of a public figure without a model release, even in circumstances where you would need one for a private citizen. Of course, the exact legal definition of apublic figure can become the topic of litigation, but you're a lot safer putting a photograph of yourself shaking hands with the mayor on your Web site than of yourself shaking hands with a random passerby.

For casual use, most Web publishers simply ignore these concerns and freely use photographs they copied from another Web site, or that they took themselves but lack model releases for. And this is so common that the odds of having trouble from it are low for personal or hobby Web sites. The problem comes when your Web site becomes popular, or if you use it for commercial purposes. Then anyone with a possible claim against you comes forward to get their share of the resources they assume you have. If you created a site for someone else, both you and your customer or friend could hear from the lawyers. Or a rights owner might contact your Web host and get your site shut down. So be careful — pay attention to rights issues from the start.