Editorial use against commercial use

You buy a picture file for a campaign and you still need permission to use it. The page on copyright exceptions describes only narrow situations where use without permission is allowed, and advertising on products or packaging sits outside them.

Why payment for a file is not permission

When you pay for a download you pay for access to a copy and for the rights set out in the licence. Copyright stays with the owner unless it is assigned in writing, which is why a royalty-free download can still forbid use on goods for sale or restrict the size of a print run. The page on exceptions starts from the same point. It says you may wish to use someone else's work and that the law permits this only in very specific situations found in the copyright sections of the Copyright Act. That narrow scope matters for buyers. If your planned use does not fit one of those situations, with its conditions met, you go back to the licence and to the owner. For a closer look at how paid licences set those boundaries, see the guide to how rights-managed and royalty-free differ.

What does fair dealing actually test?

Several exceptions work only if your use is fair dealing. The page says there is no statutory definition and each case turns on fact, degree and impression. The question it gives is how a fair-minded and honest person would have dealt with the work. Courts look at two practical points. First, does your use affect the market for the original, for example, by acting as a substitute that costs the owner revenue. If it does, the use is unlikely to be fair. Second, is the amount taken reasonable and appropriate for the purpose, and was it necessary to take that much. Usually only part of a work may be used, and the weight of each point changes with the facts. For an image buyer this explains why cropping less or using a lower-resolution copy does not by itself make a use fair. You have to ask whether your version replaces a sale the photographer or agency would otherwise make.

Can you run a news photograph under reporting current events?

No, not under that exception. Fair dealing for criticism, review or quotation is allowed for any type of work, and fair dealing for reporting current events is allowed for any type of work other than a photograph. In each case a sufficient acknowledgement is required. The page explains the reason behind the photo exclusion. The intention is to stop newspapers or magazines reproducing photographs for reporting current events which have appeared in rival publications. For you as a buyer, the lesson is direct. A picture that illustrates a current story still needs a licence, even if the text around it is genuine news. The fact that an event is topical does not create a right to pick up a press photograph, a wire image or a still from a competitor and republish it. You need to license the photograph itself, with credit where the licence asks for it, and you cannot rely on the news value of the subject to avoid that step. The official text sets out the exceptions that allow limited use in full, and the photo rule is stated without qualification.

Does criticism or review cover use in an advert?

Criticism, review and quotation can allow copying of a work without permission, but the conditions are tight and commercial promotion does not fit them. The use must be fair dealing and it must be supported by a sufficient acknowledgement, except where acknowledgement is impossible for practical reasons. Where you have copied all or a substantial part for criticism or review, or for news reporting, acknowledgement is expected as part of fair practice. A buyer sometimes asks whether a poster that shows a book cover, a film frame or a painting in order to comment on it could pass as review. The page allows criticism and review as a purpose, yet it still applies the fair dealing test and the acknowledgement rule. An advert that uses an image mainly to attract attention, to dress a layout or to imply approval of a product is not criticism of that image. If the image is the selling device rather than the object of comment, you should treat the use as one that needs permission and, where people or private premises appear, written consent as well.

Why classroom rules do not stretch to marketing

The teaching exceptions show how narrowly purpose is drawn. Copying in any medium is allowed solely to illustrate a point, only for non-commercial purposes, with sufficient acknowledgement and only as fair dealing. A few lines of poetry on an interactive whiteboard are given as a permitted minor use, while uses which would undermine sales of teaching aids are not. Showing or performing a work in a school, university or other educational establishment is allowed for educational purposes only where the audience is limited to teachers, pupils and others directly connected with the activities of the establishment. Parents in the audience will generally take the use outside the exception. Recording a television programme or radio broadcast for non-commercial educational purposes is allowed where no licensing scheme is in place, although in practice a licence will generally be required from the Educational Recording Agency. Photocopying on behalf of an establishment for non-commercial instruction is allowed on the same basis, although a licence will generally be required from the Copyright Licensing Agency. None of this helps a brand that wants the same image for a social post, a brochure or an in-store screen. The audience is public, the purpose is commercial, and the effect can replace a licence sale.

What about research, data analysis and parody in a campaign?

Non-commercial research and private study allow limited copying where you are genuinely studying, as on a college course, and only as fair dealing. Copying the whole work would not generally be counted as fair, and you must weigh any financial impact on the owner. Where the impact is not significant the use may be acceptable, and non-commercial research must carry a sufficient acknowledgement. Text and data mining has its own exception for non-commercial research by computational analysis where the researcher already has lawful access to the work. Researchers must still buy subscriptions to gain that access, publishers may apply reasonable measures to protect network security or stability that do not unreasonably restrict mining, and contract terms that stop researchers making copies for mining are unenforceable. Parody, caricature and pastiche allow use of limited amounts without permission only to the extent that the use is fair dealing. The page gives the examples of a comedian using a few lines for a sketch, a cartoonist referencing a known artwork for a caricature, or an artist building a larger pastiche from small fragments of films. A marketing parody that borrows a photograph wholesale, or that keeps the borrowed image on sale after the joke has landed, struggles with both the limited amount condition and the market effect test. Time-shifting does not help either. It allows recording of a broadcast in domestic premises for private and domestic use to watch or listen at a more convenient time, while recording for other purposes is likely to be unlawful.

When do you need broader rights before you publish?

You need broader rights whenever the use is public and commercial and no exception with its conditions fits. That includes advertising across print, outdoor, online and social formats, sponsorship credits that promote a brand, and merchandising where the image appears on goods, packaging or gifts for sale or giveaway. Accessible format copies are a separate case and they do not create a merchandising route. One exception allows a person with a physical or mental impairment that blocks access to make a copy of a lawfully obtained work in a format that helps access, such as a Braille copy of a bought book. A second exception allows educational establishments and charity organisations to make, communicate, make available, distribute and lend accessible copies for disabled people, such as Braille, audio or large-print copies, audio description for films or broadcasts, subtitled films for deaf or hard-of-hearing people, and accessible copies for dyslexic people. The conditions are strict. The starting copy must have been lawfully accessed, the conversion must be made by or for a disabled person or by an authorised body within the meaning of Section 31F of the Copyright Act, only so far as necessary, only for personal use by a disabled person, and by an authorised body only on a non-profit basis. Media are often further protected by Technological Protection Measures, also called copy protection or DRM, which control access or copying on items such as DVDs and e-books. The law protects the use of those measures and circumvention is unlawful. For product use there is an added layer around identity and place, so check consent alongside copyright in the guide to when a model release is needed. Check the licence, confirm advertising and resale on goods are named, and ask the rights holder for an amendment where they are not.