1.4 Copyright, Ownership, and Fair Use

Copyright, Ownership, and Permission Decisions

A designer must distinguish copyright in an image, permission to depict a person or location, and the license governing the final use. A client’s possession of a photograph does not establish that all three are cleared. Ask who made the asset, what rights the client has, and how the design will be distributed. Record the answer with the asset so a replacement designer can verify the same decision.

Copyright and intellectual property

Copyright protects original expression fixed in a tangible form. In the United States, an original photograph or illustration normally receives protection when created and recorded; a watermark or registration is not required for copyright to exist. Facts and ideas are distinct from their original expression. Trademark, privacy, publicity, and contract rights may apply separately. A public-domain image can therefore still contain a recognizable person, protected branding, or other material requiring review for the intended campaign.

The owner controls reproduction, distribution, public display, and the preparation of adaptations, subject to legal exceptions. Cutting a photographed object into a new advertisement can implicate these rights even if the designer changes colors or adds typography. There is no dependable percentage of alteration that makes an unlicensed image safe. A search engine locates content; it does not grant a commercial license.

Employee work and commissioned work

Under U.S. work-made-for-hire rules, work created by an employee within the scope of employment generally belongs initially to the employer, unless an applicable written agreement provides otherwise. Employee status is a legal relationship, not simply a full-time schedule or tax-form label.

A freelancer usually owns their copyright unless rights are transferred. A commissioned work qualifies as a statutory work made for hire only when the required signed agreement and statutory category requirements are satisfied. The nine commissioned categories include contributions to collective works, parts of audiovisual works, translations, supplementary works, compilations, instructional texts, tests, answer material for tests, and atlases. A client paying an invoice does not by itself transfer ownership. A signed copyright assignment is a different mechanism from work made for hire. Read the agreement before promising the client exclusive ownership or permission to sublicense.

Registration, duration, and public domain

Registration strengthens enforcement of U.S. copyright. For U.S. works, registration or refusal is normally required before a federal infringement lawsuit; eligibility for certain remedies depends on timely registration and other conditions. This administrative step does not create the underlying copyright.

Public-domain status must be checked for the specific work and jurisdiction. Duration depends on creation/publication dates, authorship, and applicable law. Do not apply a single old publication cutoff to every photograph worldwide. Works made by U.S. federal employees as part of official duties generally lack U.S. copyright, but a federal website may also host licensed third-party images. Verify the credit and rights notice rather than assuming everything on a government domain is unrestricted.

CC0 is a public-domain dedication with fallback provisions. It does not promise that trademark, privacy, publicity, or third-party rights have been cleared. Store the source and dedication with the project.

Fair use and fair dealing

U.S. fair use requires a contextual assessment of purpose and character, the nature of the source, the amount and substantiality used, and effects on the work’s market. Educational or nonprofit use is not automatically fair; commercial use is not automatically excluded. A decorative copy in a product advertisement has a different purpose from an excerpt necessary to criticize a photograph. No fixed pixel size, credit line, or percentage copied resolves the analysis.

Fair dealing is a different, jurisdiction-specific framework, often limited to identified purposes. Do not export U.S. fair-use assumptions to another country. For a routine client campaign, seek a suitable license or substitute an asset when rights are uncertain.

Ownership exercise

A studio receives a paid invoice and layered artwork from a freelance illustrator. Before promising a client exclusive ownership, locate the signed rights agreement. Identify whether it is a limited license, an assignment, or a commissioned work-made-for-hire agreement that meets the statutory conditions. Keep permission to reuse stock textures separate from ownership of the illustrator’s original contribution. If a right is missing, ask for the correct authorization or replace the affected asset before distribution. This check prevents a paid invoice from being mistaken for a complete transfer of every embedded right.