So, here’s a question for you – have you ever bought something then immediately turned around and photographed it? And have you thought about using that photo to make a few dollars by licensing it as stock photography? We do that with props all of the time but that might not always be appropriate. I’ve written before about property releases but it seems that we sometimes don’t really consider just what, exactly, needs to be released.
Over the years, Robin and I have filled our home with a variety of art and other decoration and, as I’m sure you know, I’ve made photos in and around our home. I think it’s safe to say that’s something we all have done, and what’s more, given the advent of quality cameras on our phones, we all tend to do it with some frequency. Today I’d like to discuss the potential pitfalls that may be associated with those kinds of images.
You might remember that I shared with you a discussion about appropriation artist Sherrie Levine and photographer Walker Evans. I’d written that Levine photographed one of Evans’s photos while it was on display at a museum and she then marketed her resulting photograph as After Walker Evans. In person, it might be possible to distinguish the two photos when compared side-by-side, but it is safe to say that for all practical purposes, they are virtually identical and Levine was promptly sued for copyright infringement by the Evans estate. All of which is to say that sometimes it is definitely wrong to photograph somebody else’s art. That also holds true for company trademarks. Of course, it also goes without saying that sometimes copyright and trademark owners don’t mind if their intellectual property is photographed and you just can’t tell unless you ask (and ideally secure a property release).
If you are photographing something for your own benefit and you don’t plan to share those images (including on social media), then there’s little harm to come from photographing anything you want (within reason) because photography is something that is protected by our first amendment right to free speech. Anything beyond that and things can get a little complicated; especially when you think you might want to use that photograph to earn revenue. The real risk comes when you decide to license it for commercial use (e.g. as a stock photograph).
To be clear, the only completely safe route is to secure property releases for everything in an image that could be reasonably be expected to fall under copyright or trademark protection. An example of the former might be a painting and an example of the latter could be something as simple as a logo on a piece of clothing. Unfortunately, that isn’t really a practical solution and the best we can do sometimes is to use our judgment as to whether or not an element in the scene must be released. And of course, depending on our point of view, best judgment can mean very different things to different individuals. It can be enough to paralyze a photographer into inaction.
The concept that I want to introduce you to today is referred to as de minimis. The idea here is that in order for you to use a protected element in your image, it needs to be a minor enough element in the overall image that it can be disregarded. I’m sure you can see the problem – just what exactly qualifies as insignificant in an image? In some cases, that might mean showing only a small portion of the overall composition. Consider my Urban Abstract series, you probably know that much of that portfolio is made up of macro photos focusing in on just a small section of paintings – specifically graffiti – and while graffiti is oftentimes illegal under property damage laws, the paintings themselves are copyright protected. Focusing in on small areas of the overall composition meets the de minimis standard. At times, I’ll include larger elements of the composition and when I do that, my liability increases because those images may or may not be considered to be an insignificant part of the composition.
Another way to meet the de minimis standard is to make sure that the protected element is just a small part of the overall composition. When taking that approach, a good rule of thumb is to consider whether or not the art is an essential part of the photo’s narrative. For example, a painting on the wall in the background might give the scene a sense of home (which might be important for the image) but if the overall scene would be just as strong if the image were swapped out with another painting, then it is much more likely to pass muster. You can tip the balance by using a shallower depth of field for the photo. The idea here is that out of focus elements by default an insignificant part of the composition.
I’ll leave you with one last thought for the day. Including art protected by copyright law in a commercial photograph (or video) without the copyright owner’s explicit permission comes with some risk. While we can work to minimize that risk, it can’t entirely be eliminated. My final thought then is this – if you are interested in licensing your images for commercial use, then protect yourself by securing a solid business insurance policy that includes all of the appropriate liability coverage.