United States [Change]

Help: Copyright

Back to top

What is copyright?

Copyright protects the creators (e.g. authors, photographers, song writers, software developers) of original works of authorship (called "Works") like photos, pictures, drawings, graphics, software programs, written works, sculptures or songs. The creator of the Work is usually the copyright owner, although in some cases the creator may have assigned the copyright to someone else. It is your responsibility to determine who is the actual copyright owner.

Copyright protection exists from the moment the Work is created. There is no requirement that the Work be registered in the Copyright Office or that the Work contain a copyright notice in order to enjoy copyright protection. Because copyright protection exists automatically, you should assume that every Work is protected by copyright and obtain permission of the copyright owner before using that Work.

Copyright protects original works of authorship like photos, pictures, drawings, graphics, software programs, written works, sculptures or songs. Unless you have permission from the copyright owner, copyright law prevents you from:

  • Copying someone else's copyrighted Work for any purpose
  • Making things (e.g. variations, derivatives,) based on the copyrighted Work
  • Distributing copies of the copyrighted Work
  • Publicly performing the copyrighted Work
  • Displaying the copyrighted Work
  • In the case of sound recordings, transmitting the recording over the Internet or another media

In addition to copyright protection, which protects the photographer, the people who appear in photos also are entitled to legal protection through the Right of Publicity and the Right of Privacy, both of which are discussed below.

Back to top

Length of copyright protection

The term of a Work's copyright depends on several things, including whether it has been published and the date of first publication.

  • As a general rule, for Works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years.
  • For Works first published before 1978, copyright protection will vary. In general Works created before 1922 are in the public domain.
  • If a change has been made to a Work taken from the public domain, the new Work may be copyrightable and protected for a period of time different from the original.

To determine the length of copyright protection for a particular Work, consult chapter 3 of the Copyright Act (Title 17 of the United States Code).

Back to top

Responsibility for your pictures

As the user of the Gallery service or Gallery Marketplace service, you are responsible for ensuring that the Works you upload, share, print, and/or sell do not violate copyright law, and do not violate the Right of Publicity and Right of Privacy of the people who appear in those Works.

You can only upload, share, print, and/or sell original Works that you have created yourself, or for which you have obtained written permission from the copyright holder. This means you cannot do any of the following unless you have permission from the copyright holder:

  • display or sell any Works created by other people, such as images of celebrities or corporate products, or any other images, text, or designs you downloaded from the Internet
  • display or sell professional portraits taken by a professional photographer (unless you are the photographer)
  • display or sell any Works that you obtain through magazines, books, or other sources
  • display or sell "new" images created by you using images created by someone else (e.g. a collage)
  • Use a quote or slogan that is very similar to something already written by someone else.

If one of our labs suspects that a picture printed from your Gallery account or purchased from your Marketplace infringes on someones copyright, they will place a hold on that part of the order and contact you to resolve the issue. You will be notified (via the email address you use to sign in to your Gallery account) of the hold and will be given instructions on what to do, which may include downloading the Print Consent Form.

Back to top

How to notify us of a suspected violation of your copyright

If you believe the copyright in your Work has been violated through the Gallery, please contact Kodak Imaging Network's agent for notice of claims of copyright infringement.

Please provide the following information. Kodak Imaging Network may then forward it to the alleged infringer:

  • Identify the material on the Gallery that you believe infringes your work, with enough detail so that we can locate it
  • Your address, telephone number, and email address;
  • A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • A statement that (i) the information you have provided to us is accurate, and (ii) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and
  • Your physical or electronic signature.

After receiving your complaint, Kodak Imaging Network may remove content that you believe infringes your copyright. In addition, Kodak Imaging Network may terminate the account of the member who appears to be infringing your intellectual property rights.

Back to top

How people who appear in photos are protected: Right of Publicity and Right of Privacy

The Right of Publicity makes it unlawful to use another person's identity for commercial advantage without permission. A person's "identity" includes his or her appearance, voice, name, nickname, professional name, and other distinctive characteristics.

The Right of Publicity prohibits you from selling photos of any recognizable person, including celebrities, without their permission, even if you digitally manipulate the images.

The Right of Publicity even applies after a person's death. Celebrities and their estates now own and control the commercial use of their names and likenesses, both during their lifetimes and for at least 100 years after their deaths. This is true of all well-known people: performers, sports figures, models, actors, politicians, CEOs and public figures from any walk of life.

Remember: In order to use the Gallery Marketplace service to sell an image containing a recognizable person, whether or not that person is a celebrity, you would need two consents: copyright permission from the photographer, AND permission from the person(s) who appear in the photo under the Right of Publicity.

In addition to the Right of Publicity, the Right of Privacy protects all people who appear in photographs. The Right of Privacy protects against intruding into someone's private affairs, disclosing their embarrassing private facts, and publicly putting them in a false light. For example, a person who was photographed in an embarrassing private moment may have a basis for objecting to your publishing or selling that picture as a violation of the person's Right of Privacy.

Back to top

Model release and property release

Because of the Right of Publicity and the Right of Privacy, if your pictures contain people and you plan to sell those pictures, you must get permission from each of your subjects. If the subject or subjects are younger than 18 years of age, you must get permission from each subject's parent or guardian. This applies to pictures showing recognizable individuals; if you take a picture of a large crowd and no one is recognizable, you will not need a model release. However, if anyone is recognizable (meaning that features can be distinguished), then you must obtain a model release form from each recognizable person.We've provided a sample Model Release Form to illustrate what kind of information usually appears on the form, but you should consult your own attorney to determine an appropriate model release for your circumstances.

Download and print a Sample Model Release Form

Property Release

In addition to model releases from the people who appear in photos, in some cases you may need permission from the owners of unique or distinctive property that appears in a photo. A property release says that the owner of a property—like a building, a pet or a boat--has given you consent to take and use pictures of the property. Property releases are not required for public property, such as government buildings. We've provided a sample Property Release Form to illustrate what kind of information usually appears on the form, but you should consult your own attorney to determine an appropriate property release for your circumstances.

Download and print a Sample Property Release Form

Back to top

Trademarks, service marks and trade dress

A trademark is a word, letter, name, symbol, design, logo or other device (called "Marks") that identifies the source of goods or services as coming from a particular person or company and distinguishes them from the goods or services of other people or companies. A trademark is often someone's famous name or brand. For example, the word "Kodak" has been a registered trademark since 1888.

A common test for trademark infringement is whether the use of a Mark in connection with a product or service creates a likelihood of confusion on the part of the public about the source of the products or services. For example, you could not sell products with a Mark using the Coca Cola script and spelled "Koka Kola", because that would confuse potential customers as to whether you or the Coca Cola Company was the actual source of those products.

Another common mistake with the use of trademarks is the use of a Mark, without permission of the owner, that implies some association or endorsement by the trademark owner. You may not use someone else's trademark (like the name of a musical group or artist) in your Marketplace, because your customers could believe that the trademark owner has made, approved of or endorsed your photos.

Types of Marks

Word(s), word(s) plus design, trade dress, packaging, sound, slogans, smell, service mark, geographic marks, collective marks, certification marks, and family marks can all be trademarked.

A service mark is a word, name, symbol, or device (or any combination) used by a manufacturer or merchant to identify and distinguish their services (as opposed to their products) from those services manufactured or sold by others and to indicate the source of the services. For example, the logo design used on the Kodak EasyShare Gallery website is a service mark.

Trade dress can function as a trademark and is used to identify the goods of a party in the marketplace. For example, Kodak film's distinctive yellow packaging is a type of trade dress. If you removed the word "Kodak" from the packaging, most consumers would still recognize the distinctive trade dress of the yellow film box as coming from Kodak.

Back to top

Trademark rights

An owner of a trademark, service mark or trade dress has the exclusive right to use that Mark and to prevent others from benefiting from the Mark's good reputation and recognition in the marketplace. You cannot use someone else's trademark, service mark or trade dress in your Marketplace without the owner's written permission.

Registered trademarks

Trademarks may or may not be registered, and may or may not be followed by a symbol that designates them as a trademark. The ® symbol represents that a trademark is registered with the U.S. Patent and Trademark Office. If the trademark or service mark is followed by a TM or SM symbol, then the goods/services provider has not registered the trademark. The rules about trademark use apply to all trademarks, whether registered or not, and whether or not displaying one of these symbols.

Back to top

Common misconceptions about copyright

  1. If it does not have a copyright notice, it is ok to use.
    Almost all Works are protected by copyright, even if they do not have a copyright notice. Therefore, assume that you must get permission to use any material that you did not create.
  2. If it's on the Internet I can use it.
    Publishing a Work on the Internet doesn't remove its copyright protection. Unless the creator of the Work has explicitly stated that the Work is "public domain" or the copyright has expired because the Work is very old, then you must assume it is still protected by copyright. Moreover, if someone posts an image on the Internet and claims that you are free to use it, that person may not have the right to the image in the first place. In that case, your use of the image would violate the rights of the real copyright owner. It is
  3. It is "Fair Use"
    "Fair Use" is a term that describes a limited right to use copyrighted Works without receiving explicit permission of the copyright owner, typically for commentary or criticism, such as showing a picture that appeared in an exhibition as part of an critical review of that exhibition. Fair Use does not protect the commercial sale of copyrighted Works. It is unlikely that Fair Use will apply to any copyrighted Work you want to sell through a Gallery Marketplace.
  4. I took the photo, so I can use it however I want.
    Taking a photograph of a person, company, brand, logo and so on does not give you the right to sell that photo. There are two distinct intellectual property rights in a photograph: the rights of the photographer (you) in the copyright to the photograph itself, and the rights of the people in your picture or property owners of the subject of the photo. See the discussion above about the Right of Publicity and the Right of Privacy. For example, if you take a photo of a celebrity, you own the copyright to the photo, but the celebrity retains the Right of Publicity concerning how that photo is used for commercial purposes. To sell the photo, you would need to obtain explicit permission from the celebrity.
  5. I based my picture on someone else's artwork or photograph.
    Works derived from someone's Work violate the rights of the original Work's owner. If you create an image that is based on someone else's Work, you must obtain permission from that person before selling your Work.
  6. My photograph is a parody of someone else's copyrighted Work.
    Parody qualifies as fair use only if it uses the original Work to make humorous or ironic commentary about the original Work. Whether something is considered parody under Fair depends on if the parody can reasonably be seen as commenting on or criticizing the original. If you create parody images using copyrighted or trademarked material, you should consult with an attorney before attempting to sell them.
  7. The First Amendment protects my freedom of speech, so copyright doesn't matter.
    Freedom of speech is a Constitutional protection against the government oppressing your right to self-expression. It does not give you the right to use intellectual property created by others for your own profit.

Examples of copyrighted images

Here are some examples of images that are copyrighted. To display and sell such images in your Marketplace, you must obtain permission from the copyright owner (e.g. the photographer), model releases from the persons who appear in those photos, and permission from the owners of trademarks or other famous property that appears in the photos.

  • Professional portraits, school photos, wedding photos, team photos such as those taken by Olan Mills, Sears Portrait Studios or other professional photographers.
  • Pictures of branded properties such as Disneyland or a specific chain of stores like Target.
  • Pictures of a name, logo, brand name, or trademark of a company, sports team, college, club, or organization such as Coca Cola, the New York Yankees, USC, or the Sierra Club. Modifying a trademarked name, logo or image does not give you the rights to it.
  • Pictures of products, even if you own the item. If you own a pair of Nike sneakers, you cannot sell pictures of them unless you get permission from Nike.
  • Stock photos: Even if you buy a license to a stock photo, you typically do not have rights to "print-on-demand". Some stock photography providers, such as iStockPhoto.com, allow you to pay extra to get "print-on-demand" rights, but those rights may be limited.
  • Most clip art, photo collections, or graphic programs contain a license agreement that details the specific uses for the art. In most cases the license does not grant you the right to sell the clip art.
  • Names, logos, pictures or other intellectual property of musical groups or musical artists.
  • Pictures of celebrities. Taking a photograph of Julia Roberts does not give you the right to sell that photograph.
  • Concerts, professional sporting events and other paid events.
  • Magazine covers, cartoon strips and other published Works.

Back to top

Inappropriate content

In addition to pictures that infringe on someone else's copyright, there are other types of images that you cannot upload, display or sell in your Marketplace because they violate either state or federal law, or the Terms of Service of the Kodak EasyShare Gallery. You cannot upload, display or sell pictures or graphics that depict:

  • Content that is generally offensive or in bad taste
  • Drug use
  • Violence
  • Obscene and vulgar words
  • Exploitation of minors
  • Pornographic content or nudity that is not artistic in nature
  • Hate or racist terms
  • Nazi symbols

If one of our labs suspects that a picture purchased from your Marketplace violates our Terms of Service, they will cancel that part of the order and notify you and the purchaser via the email addresses each of you use to sign in to your Gallery account).

Read the Gallery's Terms of Service, Section 12 (conduct) for more information.

Still can't find what you're looking for? Please email Customer Service with any questions you may have.