USING PHOTOGRAPHS AVAILABLE IN PUBLIC DOMAIN

Logos, Watermarks, and Ownership:  Using Photographs Taken by Others

Of late, one frequently encounters individuals and pages on social media platforms placing their own logos and watermarks on photographs captured by others. This practice has become so widespread that it is often treated as routine. Yet it carries serious legal and ethical risks. Recent court decisions in the United States have reaffirmed that a photograph is a work of art for the purposes of copyright law, and that unauthorised branding, watermarking, or alteration of such works may attract penalties. These rulings serve as an important reminder: anyone handling photographs must exercise caution, as seemingly casual acts can lead to unpleasant legal consequences.

This growing trend, combined with limited public understanding of copyright principles, has created an environment in which misuse of photographs is common and accountability is often overlooked.

A Personal Encounter That Revealed a Larger Issue

While working on my book, I approached a close friend: the son of a reputed photographer, to seek permission to use one of his father’s photographs taken sometime in 1965. The image was historically significant and directly relevant to the subject of my research. Given our friendship and the academic nature of the work, I assumed the request would be a formality. It was not. My friend declined politely but firmly. He explained that the photograph remained the property of his father’s estate and that permission could not be granted. What followed was more revealing than the refusal itself. He shared a longstanding concern: many individuals had been circulating his father’s photographs online with their own logos, page names, or watermarks, often without permission and sometimes without credit. In several cases, the original attribution had been entirely removed. That conversation highlighted an issue far broader than one denied request: it reflected a systemic misunderstanding of photographic ownership.

The Persistent Myth That Old Photographs Are “Free”

There is a widespread belief that old photographs automatically become public property. Images documenting history, public life, or taken decades ago are often assumed to be free for use, particularly when the photographer is no longer alive. This belief is incorrect. Under copyright law, a photograph is protected from the moment it is created. The photographer is the author and original owner of that work unless ownership has been lawfully transferred through a contract, assignment, or work-for-hire arrangement. When the photographer dies, those rights generally pass to heirs or a legal estate and continue for many decades, depending on the jurisdiction. Neither age nor historical importance extinguishes authorship.

Photography as Artistic and Intellectual Property

Photography is not a mere mechanical process. It involves creative judgment in framing, lighting, timing, composition, and perspective. Courts across jurisdictions have consistently recognized photography as artistic expression and intellectual property. For the purposes of copyright, photography stands alongside painting, writing, music, and sculpture. Legal protection extends not only to commercial exploitation but to creative authorship itself. Accordingly, unauthorized alteration or branding of photographs interferes with legally protected artistic work.

Clarifying Roles: Owner and Handler

For public understanding, it is helpful to clearly distinguish between two roles: the owner and the handler. The photographer is the original author and copyright owner of a photograph from the moment of creation, unless those rights have been lawfully transferred. After the photographer’s death, copyright typically vests in their heirs or estate. All others who later use, manage, edit, archive, upload, publish, restore, or circulate the photograph fall within the category of handlers. This includes editors, publishers, archivists, page administrators, cultural platforms, social-media managers, and researchers. A handler does not acquire ownership merely by access, possession, or use. Importantly, a handler has no legal right to place a logo, watermark, brand mark, signature, or identifying insignia on a photograph unless expressly permitted by the copyright owner through a valid license or written consent. In the absence of any such permission, any addition may constitute unauthorised modification of a copyrighted work and may expose the handler to legal liability.

The Emotional Reality Behind Ownership

For families of photographers, photographs are not just images; they are legacies. Many photographers invested years of work, often under difficult or dangerous conditions, to document culture, society, and history. When their images circulate under another name or logo, it feels like an erasure of both creative labour and personal history. The frustration expressed by my friend arose from repeatedly seeing his father’s work detached from its source and misrepresented as belonging to others. This human dimension is often overlooked in online discussions about image sharing.

Social Media and the Illusion of Consent

Social media has dramatically accelerated the circulation of images. A photograph posted once can be downloaded, reposted, edited, and rebranded within minutes, often losing attribution at the first step. This speed has created a dangerous illusion: visibility is mistaken for permission. The reality is simple. Uploading a photograph to social media does not place it in the public domain. Platforms do not transfer ownership rights to users. Sharing does not extinguish copyright.

Logos and Watermarks: A High-Risk Practice

Placing a personal or organisational watermark on a photograph taken by someone else is one of the most legally hazardous practices in digital media. Copyright law reserves the exclusive right to create derivative works to the copyright owner. Unauthorised branding or watermarking may qualify as such a derivative work. Courts have, in appropriate cases, treated this conduct as infringement and imposed penalties. Even where no commercial intent exists, the act itself can still carry legal consequences.

Ethical Harm Beyond Legal Risk

Beyond legality lies ethics. A watermark signals authorship. When that signal is false, it misleads audiences and undermines trust. In cultural and historical contexts, this misrepresentation is particularly damaging. Once falsely branded images circulate widely, correcting attribution becomes difficult, and original creators gradually disappear from public memory.

Editing and Restoration Do Not Create Ownership

Some handlers argue that editing, colourisation, or restoration grants them ownership rights. This is a misunderstanding. Editing does not negate the original copyright. The underlying photograph remains protected. Without permission, even significantly altered images may still infringe the original work. Transformation is not ownership.

Why Permission Matters

The refusal I encountered while working on my book was not unreasonable. Historical importance and scholarly intent do not override ownership. Exceptions such as fair use are limited and context-specific. Seeking permission is not a mere courtesy; it is a recognition of creative rights.

Public Domain: A Narrow Legal Category

Some photographs are free to use, such as those whose copyrights have expired, those explicitly released into the public domain, or certain government images. However, these categories are narrower than commonly assumed. Public domain status must be verified, not presumed.

Conclusiuon

To avoid legal and ethical pitfalls, handlers need to observe a few basic principles:

• Use only photographs you have created, licensed, or received explicit permission to use
• Do not add logos or watermarks to images you do not own
• Preserve original attribution wherever possible
• Verify public-domain claims carefully
• When in doubt, refrain from use

The growing misuse of photographs reflects a deeper issue: convenience has overtaken respect. Courts have reaffirmed what copyright law has long recognised—photography is art, and artists retain rights. Preserving history requires preserving authorship. Respecting ownership, permission, and attribution is not optional; it is essential to ethical and lawful engagement in the digital age.

 

(Avtar Mota)

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