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Image copyright – where do you stand?

The web makes it very quick and simple to find photographs and, as they often appear to be free, you might be tempted to be free and easy with how you use them.

However, be careful to adhere to the basics of photography copyright.

Copyright is an automatic right and arises whenever an individual creates a work. However, to qualify, the work must be regarded as original and must exhibit a degree of labour, skill or judgement.

When is it okay to copy an image?

You cannot simply discover an image which is in the public domain – for example, on the internet – and download this to use for commercial purposes, unless you seek permission from, and pay (if requested), whoever owns the copyright.

You may, however, use it for your own personal use such as a screen saver on your mobile phone.

Copyright is infringed if your unauthorised use involves the whole or a ‘substantial’ part of the material.

Even small parts of a work may count as ‘substantial’ if they are where the effort was invested in creating the work; it is the effort that is substantial, rather than proportion of the material.

With regards to images, most of the effort is in seeing, arranging and taking the picture, not in the final image, therefore it is unlikely you will be able to use someone else’s image without their permission.

However, there is no copyright infringement if a copyrighted work is incidentally included in another work, so-called ‘passing shot’ use. This mostly applies to film makers who include photos and posters in scenes.

A similar exemption applies to works permanently situated in public places. There will be no copyright infringement where sculptures, works of artistic craftsmanship, buildings etc are photographed, which is highly relevant for construction marketers.

You already own many copyrights

Material produced in the normal line of business – for example a business plan, presentations, advertisements, technical drawings, brochures, reports, photographs, software, websites and technical manuals – are all covered.

These will be your copyright; however, it is the arrangement of the words and images within such documents that are protected by copyright. This is because copyright only protects the way an idea is expressed, not the idea itself.

Who actually owns it?

Businesses should be aware that it is usually the creator of the original work who owns the copyright, unless the work was produced under a normal contract of employment. This is usually referred to as the ‘first owner of copyright’ under the 1988 Copyright, Designs and Patents Act.

If you take photographs on behalf of your employer, and are not employed as a freelance photographer, then your employer owns the copyright to the way the idea is expressed, but not the idea itself, as this may be used to support a creation by someone else.

Subcontracted work will usually belong to the photographer unless there is an agreement to the contrary, and it is usually necessary when commissioning a photographer to specify beforehand that the copyright of images will belong to the client.

As with any asset, copyright may be transferred or sold by the owner.

How long does it last?

The length of time a piece of work is copyrighted varies dependent on a range of factors. With photographs, it is the lifetime of the creator of the work plus 70 years from the end of the calendar year in which it was created – even though someone else may have ownership of the actual copyright.

If the author is unknown, copyright will last for 70 years from the end of the calendar year in which the work was created. However, if it is available to the public during that time then the duration will be 70 years from the end of the year the work was first made available.

As well as being a CIMCIG committee member and a judge at the Construction Marketing Awards, Rick Osman was for many years a publisher of books and magazines. Today he is a director of Highwire, an agency which specialises in online solutions for the construction industry – see www.hotel-standards.com. You can find out much more about construction marketing at www.cimcig.org

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