Commons:So you want to upload a photo someone else took

A nice, normal photo that doesn't raise any unusual copyright issues. But what if you aren't the person who took it?

While it is relatively easy on Commons to correctly upload images where you personally created the entire original image by yourself, other cases are more complicated. There are two main other cases:

• You took a photo of someone else's copyrighted work (a painting, a sculpture, in some countries a building, etc.)
• Someone else took the photo, including a photo of you.

For the first case, see Commons:Freedom of panorama. It's very much a country-by-country matter. This essay looks at the case where someone else took the photo (possibly a photo of you, but that doesn't really change anything); and it isn't a photo of someone else's copyrighted work. We're also going to assume the photo is reasonably recent; almost everywhere in the world, what follows will apply to any photo taken in the last 25 years, and in most countries it will apply for 70 years beyond the lifetime of the photographer. The older the photo, the more likely that an "edge case" will crop up. There are some useful links to "go deeper" at the end of this essay, but you can always ask about any particular case at Commons:Village pump/Copyright.

Why this is complicated

This is complicated because:

• Copyright law is complicated.
• Commons' servers are in the U.S., so we have to abide by U.S. copyright law, which happens to be among the most complicated in the world because of a series of major changes over the last 50 or so years.
• As a matter of principle, Commons chooses to abide by copyright law in the country of origin for any particular photo.
• Commons intends to host only images that (give or take non-copyright issues such as trademark rights or personality rights) can be reused in any context, including commercial publication and where derivative works are allowed.
  • This means Commons cannot accept a photo that is licensed only under an "NC" (non-commercial) or "ND" (no derivatives) license. More details here.

Also:

• If person A owns the copyright to picture B, when person A grants a license to reuse picture B, picture B is still copyrighted, and person A still owns the copyright. They can, for example, offer other licenses as well.
• To keep matters as clear as possible for copyrighted materials, Commons requires an explicit and irrevocable license granted by the owner of the copyright. We don't care if they choose also to offer another license later: they still can't take this one back. This is mainly for the protection of our reusers.

Who owns the copyright?

In virtually every country of the world today, if you take a photo, you own the copyright from the moment of creation. Some countries allow transfer of copyrights; nearly all of those require that the transfer be in a written form (most nowadays allow that to be online, but not merely oral). In particular, this means if someone takes a picture of you, they, not you, own the copyright and that remains the case unless it is overtly transferred. There are basically three ways that copyright is likely to be transferred to a different party:

1. "Work for hire": if the photo was initially a "work for hire" (e.g. the photographer was employed by a newspaper, and their contract said that they newspaper owns copyright for any photos they take as part of the job). Note that in most countries this does not happen automatically if you pay someone to take a photo of you (or of someone/something else): you need that stipulation to be in writing.
2. After-the-fact transfer of copyright, typically with some compensation. For example, even if there was no "work for hire" contract in place at the time a photo was taken, you could still pay to buy its copyright from the photographer. In almost all countries, that contract needs to be in writing. Note, in particular, that transfer of a physical photo (even a negative and all the prints, or the sole digital copy) does not automatically transfer copyright or other intellectual property rights.
3. Death. If the copyright-holder's will does not identify an individual to inherit intellectual property rights, then those go with the residuum of the estate. (Again, there could be a country that is an exception, but this is a pretty solid rule of thumb.)

So:

• Typically, the photographer (or their heir or heirs) owns the copyright.
• If the copyright has been transferred, there is typically a document that proves that.

Also:

• Putting a photo out on social media doesn't change any of this.
• Even letting a photo be used for publicity purposes doesn't change any of this, unless there is an explicit license granted. (There are some interesting special cases for works published without a copyright notice in the U.S. before 1989; see Commons:Hirtle chart.)

What if you don't know who took the photo?

Sadly, that typically means that, in terms of uploading to Commons, you are out of luck. Someone took it. They (or their heirs) presumably own the copyright. Only the copyright-owner can grant a license. If no one can work out who that is, then the photo is effectively "orphaned". While there is probably little legal risk in using an orphaned photo on (for example) a personal website or social media, we cannot accept these on Commons, because the risk for commercial use is very real: a copyright-owner could come forward and sue.

A "normal" case

So… you want to use a photo that you found in a family collection, or "somewhere on the Internet", or one that a friend took of you, and it isn't sitting out there with a "free license" already offered. Let's assume for now that there wasn't some contract transferring copyright. They first thing you need to do is work out who took the photo. If that person is still alive, they are almost certainly the only person who can grant a license. We need them to do any one of several things:

• If they already have an account here on Commons, they can upload it themself. That is often simplest.
  • However, if the photo is already published (e.g. on the Internet) and they haven't already established the identity for their account, they are still going to have to go through the COM:VRT process described below to establish that the account is really them. Alternatively, they can skip the VRT process and, on a page or site clearly under their control -- e.g. their personal website, or a public-facing social media page -- they can indicate that the Commons account is theirs, making that easy for anyone to verify, then link that from their Commons user page.
• If the photo is already published online on a page under their control (e.g. on Flickr, or on a photographer's publicly visible web page or Facebook page), they can indicate the offered license right where the photo is online, and you can cite that as the source when uploading. This is just as if the picture had been previously published with a license.
• They can go through the process outlined at COM:VRT. This is a bit slow, but very effective. Basically, it allows them to use confidential e-mail correspondence to prove who they are and to offer a license for the photo. That correspondence is seen only by a small, trusted team of Wikimedians, who can issue a "ticket" to validate the permission.

If the photographer is deceased, you are going to have the further work of finding out who is the heir to their copyrights. That last can be very tricky, but it can also be very simple: for example, if the photo was taken by your own deceased parent, then there is a fair chance that the relevant heir is yourself, possibly in conjunction with your siblings. Once the relevant person is identified, the process is pretty much the same as for a living photographer. We have special license templates like {{Cc-by-sa-4.0-heirs}} for licenses granted by photographers' (or artists') heirs.

If the copyright has been transferred

Typically, if the copyright has been transferred COM:VRT will be involved: the people who handle confidential correspondence will need to see the document transferring copyright. The major exception to that is that usually we trust established institutions that say a given work pertaining to their usual business because it was a work for hire; we don't demand the prove it.

How to make this happen

First, keep in mind: you may or may not be able to make this happen. The copyright-holder is perfectly entitled to decide they don't want to free-license their work, even if "their work" is a picture of you. This is particularly the case if the copyright-holder is a professional photographer and they think the photo in question might be worth money. In all honesty, there is much less chance of making any money from a photo once you offer a free license. Someone might still pay to use it in a book or in a documentary, where they want very clean, standardized releases and would not want to use a free license, but most other reusers will simply welcome the opportunity to use the image legally without paying.

On the other hand, if they do not see this as a money issue, putting an image on Commons is a great way of getting it widely out into the world, and in no way interferes with getting a credit as the photographer. The license we most commonly recommend is {{Cc-by-sa-4.0}}, which requires that the photographer be credited on all reuse. Typically, your friends, family, or even many acquaintances or strangers will be willing to do this as long as there isn't too much hassle involved.

To minimize their hassle, we have an interactive release generator to help someone draft an email to VRT to grant a license. NOTE that the email has to come from the copyright-holder, not from you (though it's often a good idea to ask them to cc you).

When you approach someone to ask for permission to use a photo on Commons it is usually a good idea to mention all of the following:

• Let them know why you want the photo to be on Commons. If there is a particular place where you want to use the photo (e.g. a particular Wikipedia article), it's generally a good idea to mention that.
• Make sure that they understand that Commons rules mean that we need them to grant an explicit license, and that this means the photo can be reused outside of Wikipedia as well.
• Make sure that they understand that this includes offering a free license that includes even commercial use and derivative works, and that once issued, the license cannot be revoked.
• On the other hand, let them know that if they use {{Cc-by-sa-4.0}} they can specify that they be credited on all uses under the license (with whatever is their preferred form of their name), and that they are not waiving the personality rights of any people portrayed in the photo. Precisely what those personality rights are will vary depending on the country in which the photo is taken.

External links

• Commons:Licensing: explains what licenses Commons allows
• Help:Public domain: explains what is in the public domain because it is "old"; more detail for the U.S. at Commons:Hirtle chart
• Commons:Personality rights
• Commons:Freedom of panorama: many countries allow some freedom to photograph someone else's copyrighted work (a painting, a sculpture, a building, etc.) if it is visible in a public space. This varies enormously from country to country; this page is Commons' effort to sort this out country-by-country.
  • In addition, there are some country-by-country issues with what is known as the de minimis doctrine: Commons:De minimis. This has to do with incidental inclusion of copyrighted material in a photo that is essentially your own creation (e.g. someone is wearing a copyrighted logo in a portrait, or standing with a copyrighted building in the background in a country that offers very little freedom of panorama).