Sometimes a copyrighted work may contain a depiction of another copyrighted work. This is especially true of photographs, which often depict a painting, a building, a drawing, or a corporate logo. A photographer holds a copyright in their own work, which provides them with exclusive rights over reproduction, distribution, and other forms of use. These rights exist even if you do not register your photo with the U.S. Copyright Office. On the other hand, a photo might infringe on the copyrights of other protected works that it depicts. Those copyright owners hold exclusive rights to reproduce and distribute their works as well.
While you may have a valid rebuttal to a copyright infringement case, as discussed further below, your best strategy may be to avoid any dispute or lawsuit. You can review your photos after taking them to see whether you can discern any potentially copyrighted material in an image. If you do, you may be able to remove that material to prevent a dispute. Or you can ask permission from the copyright owner to use the protected material.
Fair Use and Photos of Copyrighted Works
If you sell a photograph of copyrighted material, the owner of that copyright may sue you for infringement. The main response in these situations is that the photo falls within the definition of fair use. There is no clear line separating fair use from infringing uses, but courts consider four factors. These factors are the purpose and character of the use, the nature of the copyrighted work, the amount used by the alleged infringer, and the effect of the use upon the value of the copyrighted work. (Read more here about the fair use doctrine.) Some copyright scholars have suggested that the last factor is the key to deciding these cases, while the other three factors offer ways of evaluating the last factor. However, they are formally viewed as equal components of the test.
Someone who takes a photo with the intention of selling it as a reproduction of the subject will not have a strong argument for fair use. By contrast, a photographer might be able to use the fair use defense if they were planning to use the photograph for educational or editorial purposes. If you photographed only part of a large artwork, this would work in your favor. If the audience of the photograph would be different from the market for the work, you could argue that your reproduction would not reduce the value of the original.
Fair Use and Photos of Trademarks
Taking a photograph of a corporate logo or another trademark can put you on much thinner ice. Trademark owners often gain protection on a national level by registering their trademarks with the U.S. Patent and Trademark Office. Similar to copyright owners, they hold exclusive rights. These include the right to use the image of the logo in commerce to show the source of their products or services.
Trademark owners typically enforce their rights aggressively, since they tend to be larger entities with more resources. You face a high risk of legal action if you sell merchandise with a photo of someone else’s trademark without getting their permission beforehand.