Disclaimer: Always assume a photo is protected by copyright unless you can prove otherwise.
Photos You Can Use Without a License or Permission
- Photos you created yourself. This is the safest and best option. If the business owner, an employee, or a paid contractor (with a "work for hire" agreement) took the picture, the business owns the copyright.
- Images from public domain sources. These are works for which the copyright has expired, been forfeited, or is inapplicable. Examples include U.S. government works and very old photographs (typically pre-1929 in the U.S.). Caution: Don't assume an image is in the public domain just because it's old. Always verify its status.
- Photos with a Creative Commons (CC) license that allows for commercial use. Look for licenses that include "CC BY" (Attribution) and "CC-SA" (ShareAlike) or "CC-0" (Public Domain). Avoid licenses with "NC" (Non-Commercial) or "ND" (No Derivatives), as these restrict commercial use and/or modifications. Always check the license and provide proper attribution.
- Photos from royalty-free stock photo websites. These platforms offer images that you can use for commercial purposes after a one-time payment or as part of a subscription. Examples include Getty Images, Shutterstock, and iStockphoto. Free options exist too — sites like Unsplash, Pexels, and Pixabay are popular, but you must still check their specific terms of use to ensure commercial use is permitted.
Photos You Cannot Use Without a License or Permission
- Photos found on Google Images. The search engine simply shows you what exists; it does not grant you a license to use the image.
- Photos from other people's social media posts or websites. The copyright for a photo belongs to the photographer, not the social media platform. Even if a post is public, you do not have permission to download and use that image for your business. Re-sharing using the platform's native tools (like an "embed" or "repost" button) is usually acceptable, but downloading and re-uploading is almost always copyright infringement.
- Photos of celebrities or public figures found online. Even if you credit the source, you can't use a celebrity's image to promote your business without their consent and a license. This violates their "right of publicity."
- Photos with a watermark. A watermark is a clear signal that the photographer is protecting their intellectual property. Using a watermarked photo is a surefire way to get a cease-and-desist letter.
Using Photos of People for Business Promotion
This is a different but equally important legal consideration. While copyright protects the photographer's work, the "right of publicity" and "right of privacy" protect the individuals in the photo.
The general rule: If you are using a photo of an identifiable person for commercial purposes (e.g., to promote a product, service, or business), you need their written permission, known as a model release. This is true even if you took the picture yourself.
Why? Using someone's likeness for promotion could imply their endorsement of your business. Without a release, they could sue for misappropriation of their image.
Public vs. Private Settings
- Public places: In a public space, people generally have a reduced expectation of privacy. You can typically take and use photos for editorial or news-related purposes without a model release. However, if the photo is used for direct promotion or advertising, you still need a model release for any identifiable people.
- Private events: Even if the event is a public one (like a concert), if the person is in a private setting (e.g., in a backstage area), they have an expectation of privacy.
Best practice: Always obtain a signed model release form from anyone who is clearly identifiable in a photo you plan to use for business promotion. For an event, you can post signs or include a clause on tickets or registration forms that states attendees may be photographed for promotional purposes.
Using an Employee's Picture
The simple and safe answer is: yes, you should have a signed release from your employee to use their picture in advertising or promotional materials. Here's why:
- Right of Publicity: The "right of publicity" gives individuals the exclusive right to control the commercial use of their name, image, and likeness. Even though they are an employee and you took the picture on company time, their personal identity and image still belong to them. Using it to promote your business (e.g., in an advertisement, on your website's homepage, or in a marketing newsletter) is considered a commercial use.
- The "Work for Hire" Exception Doesn't Apply: While a "work for hire" agreement often grants the employer the copyright to creative work produced by an employee, it doesn't automatically transfer the employee's personal right of publicity. The photo itself may be company property, but the right to use the employee's face for advertising is a separate issue.
- Avoiding Future Problems: Employees can leave the company. If they do, they have the right to request that you stop using their image for advertising. A signed release form (often called a "model release") protects you by granting you the perpetual right to use the photo.
Best Practice: Have a standard employee photo release form as part of your new-hire paperwork. This form should be explicit about what the photos will be used for (e.g., website, social media, brochures, etc.) and confirm that the employee consents to this use without additional compensation.
Using a Picture from a Church Service or Activity
The legal and ethical considerations here are more nuanced but generally lean toward getting permission.
- Public vs. Private Space: While a church is open to the public, it is not a government-owned "public space" in the same way a park or a city street is. People inside a church service often have a greater expectation of privacy and may not want their attendance (and therefore their religious affiliation) made public.
- Commercial Use: Similar to the employee example, if you are using the photos to attract new members, raise funds, or promote the church as a business, that is a commercial use. In this case, you should have a release.
- GDPR and Data Privacy: In regions with strict data privacy laws like GDPR, religious belief is considered "special category data." Photographing people in a religious setting and publishing the photos could be seen as processing this sensitive information, which requires explicit consent.
Best Practices for Churches and Non-Profits
- Post Clear Signage: Place clear signs at all entrances stating that photos and videos are being taken and may be used for promotional purposes. Provide an opt-out option (e.g., "If you do not wish to be photographed, please see an usher for a wristband or sit in the designated 'photo-free' zone").
- Provide an Opt-Out Option: Having a specific section or row where people can sit if they don't want to be in photos is a great way to respect privacy.
- Focus on General Crowd Shots: Try to take wide-angle photos where individual faces are not clearly identifiable. Avoid close-ups of specific people unless you have their explicit, individual permission.
- Have a Media Policy: Maintain a written media policy outlining your approach to photography and video, available to members and visitors.
- Never Post Photos of Minors Without Parental Consent. This is an absolute rule. Get written permission from a parent or legal guardian before using a photo of a minor.
Pictures of Books and Items for Sale
The short answer: it depends, but it's often permissible to use a picture of a book cover for promotional or informational purposes without a license.
The "Fair Use" Doctrine
In the United States, "fair use" is a legal doctrine that allows the limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Courts consider four factors:
- The purpose and character of the use: Is it for commercial purposes or for non-profit educational purposes?
- The nature of the copyrighted work: Is it a creative work or a factual one?
- The amount and substantiality of the portion used: Are you using the entire work or just a small part?
- The effect of the use upon the potential market for or value of the copyrighted work: Does your use harm the original creator's ability to sell or license it?
Applying Fair Use to Book Covers
When you post a picture of a book cover for the purpose of recommending or reviewing it, your use is likely to be considered "fair":
- Promotional and Informational Purpose: Your use is not to sell the cover itself, but to promote or comment on the book it represents — a transformative use.
- The Nature of the Work: A book cover is essentially an advertisement for the book.
- Minimal Harm to the Market: Using a picture of a book cover doesn't harm the market for the book — it likely helps it.
Key distinction: There's a big difference between using a book cover to recommend a book and using a copyrighted image from within the book. The latter is almost certainly copyright infringement.
Best Practices
- Link to the Book: Always link to the book's page on Amazon or the publisher's website to show your intent is to promote.
- Use the Official Image: Use the high-quality official cover image provided by the publisher, not a grainy phone photo.
- Attribute Appropriately: Include the book's title, author, and (if known) publisher.
In summary, you can generally use a picture of a book's cover in a blog post when the purpose is to discuss, review, or recommend the book. This use falls under the "fair use" doctrine and is a common practice that most publishers and authors encourage.
This guide was contributed by Frank Bellizio, ABS Local Mobile Marketing — a TPBG member. abslocalmobilemarketing.com.