Understanding photo rights: What you can do with photos you are not allowed to modify

Clones of Creative Commons. Photo: Kristina Alexanderson (CC BY-NC-SA 2.0)

Clones of Creative Commons. Photo: Kristina Alexanderson on Flickr. (CC BY-NC-SA 2.0)

I’m currently working a lot with photos, which caused me to look again at what you can and what you cannot do with photos that you have legally obtained online.  In particular, I was interested in how far I can change Creative Commons licensed photos, without having explicit permission to modify them.

This post summarizes what I have come up with. However, please bear in mind that I am not a lawyer, meaning my interpretations might very well be wrong! If you need legal advice, ask a lawyer. If you find that I am wrong about something, please leave a comment!

As you will either know or can see in an earlier post of mine, photos licensed under Creative Commons come with a number of permissions and restrictions attached. One of the more common restrictions is that you are not allowed to produce “derivative works” from it.

Creative Commons defines this as:

“The licensor permits others to copy, distribute and transmit only unaltered copies of the work — not derivative works based on it.”

The right to create derivatives is also frequently called “the right to modify an image”. From the definition above it would seem like you are not allowed to change a single pixel. But that doesn’t make any sense, because technically you are already modifying an image when you resize it (strictly speaking you are “resampling it”). When you change an image from, for example, 1000 x 500 pixels to 500 x 250 pixels you are removing pixels from the work, which very strictly speaking is a modification. But that is clearly not an issue.

So what is a derivative work? The Creative Commons Wiki explains:

“Generally, a modification rises to the level of an adaptation under copyright law when the modified work is based on the prior work but manifests sufficient new creativity to be copyrightable, such as a translation of a novel from one language to another, or the creation of a screenplay based on a novel. (1) (…)

Civil law jurisdictions (such as Germany and France) tend to require that the work contain an imprint of the adapter’s personality. Common law jurisdictions (such as the U.S. or Canada), on the other hand, tend to have a lower threshold for originality, requiring only a minimal level of creativity and ‘independent conception.’ Some countries approach originality completely differently. For example, Brazil’s copyright code protects all works of the mind that do not fall within the list of works that are expressly defined in the statue as ‘unprotected works.’ Consult your jurisdiction’s copyright law for more information.” (2)

That makes more sense. However, it also means that what you can legally do to a Creative Commons licensed photo depends on the legal code in your country of residence – a concept that is even stranger when you consider that the creator of the licensed work, i.e. the photographer, might live in another country, where the interpretation of the same license might be different. It also shows that this is restriction is probably very hard to enforce since, say, a photographer from Brazil would have to sue me in Germany.

Not every modification is an adaptation

Personally, I understand the explanation to mean that simple modification such as adding a text overlay (“I can has cheezburger”) and cropping would not rise to the level of adaptation since they are not sufficiently creative to be copyrightable nor do they reflect my ‘personality’. I’d even argue that the same applies to limited changes to the image itself, such as increasing contrast or applying auto levels in Photoshop to adjust brightness etc.

Filters: how much is too much?

On the other hand, applying extensive Instagram-style filters might constitute an adaptation in cases where the filters significantly change the image. Tilt-shift filters that blur parts of the image or some of the other more dramatic filters come to mind.

While I would not say that the two images shown below are sufficiently different to be individually copyrightable, I would recommend to stay away from applying so called “creative” filters to images which you are not allowed to modify. While not obvious from the quote above, this feels too much.

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Don’t crop too much

What I find surprising about the explanation quoted from the Creative Commons Wiki is, that it does not say anything about modifications that are not creative but which change the meaning of an image. I’m referring to cases where cropping an image removes parts of the photo that are essential to its content and context.

Below is an example that illustrates the point:

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Even though the cropping shown in the example above is not a creative adaptation that could be copyrightable in its own right, the modification changes the photo in a way that alters the meaning of the original work. As far as I’m know you are not allowed to do that.

Are you a copyright lawyer who can add some information? Or have you ever had problems understanding photo licenses? Please leave a comments below!