Photoshop and other image alteration softwares have become popular tools for entertainment and advertising. Perhaps you’ve used Photoshop yourself. You’ve altered photos of your friends or celebrities for fun, changing their facial features or body shape. Maybe you’ve made a meme, where you’ve cut out a person from a photo and put them in a funny context. Or perhaps you’re a business owner. You’ve altered an image of a famous person to show them happily using your product. If you have or are thinking of photoshopping a person’s image in the future, you should be careful. You could risk being sued for copyright infringement, defamation or passing off. Here, we set out some legal risks that arise from photoshopping a person’s image, and how to minimise these risks.
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Copyright infringement
If you use a person’s picture without the consent of the photographer, you could be infringing copyright.
This can be the case even if you only used a part of the picture. Under the Copyright Right Act 1968 (Cth) (Copyright Act), if you reproduce a “substantial part” of a work without the consent of the creator, this constitutes copyright infringement. Whether something is a “substantial” part of the work is determined by quality as opposed to quantity. For example, say that you cut out a person’s figure from a photo, but the figure doesn’t actually take up much space in the photo. A judge can still consider this to be “substantial part” of the photo if that figure is an essential feature of it.
Also, even if you change the picture with your own creative input, you could still be liable. As long as the reproduced work bears a “strong resemblance” to a substantial part of the original work, this will be copyright infringement. Importantly, the similarities don’t need to be literal. So, even if you didn’t exactly copy the photo, you could still infringe copyright if it resembles the original work.
Defences to copyright infringement
The best way for you to avoid any legal trouble for photoshopping an image is to get consent from the photographer. Note that you need to get the consent of the photographer, not the person depicted in the photo. This is because under copyright law, the creator of the work owns the copyright. Of course, if you want to avoid being sued for defamation, you should also get the consent of person in the photo. This will be discussed later.
If you’re in legal trouble for publishing a work without the consent of the creator, some defences may be available to you. They include the following:
- Fair dealing for the purpose of parody or satire – the Copyright Act does not define “parody” and “satire”. However some judges have explained what this could mean. For example, in the case of AGL Sydney Ltd v Shortland County Council (1989), Judge Foster defined parody as “to imitate (a composition, author, etc) in such a way as to ridicule). In the case of TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001), Judge Conti defined satire as “being a form of ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses, but not by way of an imitation or take-off”. If your photoshopped image falls within these purposes, you may be safe from being sued for copyright infringement.
- Original work – This defence could apply if you made large alterations to the original work, involving considerable effort and skill. As a result, the similarities between the original work and your photoshopped work is slight. Essentially, you would have to prove that the photoshopped work is your own original work.
Defamation
You could also be liable for defamation if you’ve been photoshopping an image in a way that could damage their reputation. Under defamation law, a publication is taken to damage a person’s reputation if it causes members of society to ridicule, avoid or despise the person.
For example, if you’ve photoshopped a person’s image to make them look funny, or suggest that they are doing something which is embarrassing or outrageous, then you may be liable for defamation.
Defences to defamation
Again, you should get clear consent from the person whose image you’re altering before publishing any altered images to protect yourself from a defamation suit.
Other defences that may be available to you include:
- Honest opinion – if your work expresses an honest opinion about the person which is a matter of public interest, then you will have a defence. For example, maybe you’ve photoshopped an image of a politician who was allegedly involved in corruption. You’ve done this in a way that brought attention to this issue. This defence could then apply.
- Triviality – if you prove that your work is unlikely to cause harm, then you will have a defence. This may be because you’ve made it clear that it’s a joke or it really isn’t particularly outrageous or humiliating. Therefore, the person’s overall reputation wouldn’t be affected by the image’s circulation.
Passing off and misleading and deceptive conduct
Say you are in the alcohol business. You photoshop a famous person’s picture so that they are downing a bottle of your new brand of beer. In reality, they are an endorser of another famous brand of beer. If you do something like this, you may be liable for passing-off. This is because you deceptively suggest that a well-known person is associated with your goods or services. As a result, that person may suffer damage by losing the sponsorship of that other brand of beer.
Defences to passing off and misleading and deceptive conduct
Some defences available to you are:
- Consent
- Not well-known: this defence can apply if the person whose image you are using are not particularly well-known in the jurisdiction you are being sued
- Not deceptive: if the way in which you have photoshopped the image is unlikely to deceive people (perhaps because it is so obviously fake) then you may have a defence.
You could also be liable for misleading and deceptive conduct. Like passing-off, a person could be liable if they mislead people into thinking that a famous person endorses their product.
Conclusion
Photoshop is certainly fun to use and can make your advertisements more engaging. However, as you can see from above, there are legal risks to photoshopping a person’s image. You need to carefully consider these risks before you decide to do so. You may want to avoid photoshopping someone altogether if you want to be truly safe. However, in reality not many images will come to the attention of the photoshopped person unless it is truly controversial. If you do want to publish something controversial, obtain consent or make sure you have a strong defence to rely on.
