Copyright Law: Myths vs. Facts
Vol. I: Almost Everything You Need to Know About Copyright Law Regarding Photography
After receiving a degree in photography, and taking an entire year in photo business and law, I thought I knew all the answers to folks copyright questions regarding images. Then I started receiving a ton of questions that I couldn’t answer, so I started researching for this article. I was surprised to learn how much the laws regarding copyright and case law on the subject favors the photographer almost always. I found very few situations in which the models had any rights at all, and in the cases that swung in the model’s favor, it was because no photo release was present. After visiting more than 100 websites, reading four books on image copyright, and reviewing case law on the subject, I think I finally scratched the surface on some of your copyright questions, even though there are a million shades of gray in the law.
This is a small sampling of what I gathered in my research, it is a tool, and I have catered it to the burlesque/pin-up industry. Understand that I am not a lawyer, and as such am not qualified to give legal advice, and this article should not be taken as legal advice. For specific advice on your particular situation, contact a copyright attorney. To find a lawyer in good standing with the State Bar of Texas, visit their website. You can research any lawyer’s name in the state from there, and you are looking for someone who specializes in copyright law, and has no ethics violations, suspensions, or other black marks on their record.
Copyright Myths Verses Facts
Myth: The work doesn’t have a copyright notice, and the photographer did not officially file a copyright with the U.S. Copyright Office, so the work isn’t copyrighted.
Fact: This was true in the past, but today all major nations follow the Berne Copyright Convention. In the US, almost everything created privately and originally after April 1, 1989 is copyrighted and protected whether it has a notice or not.
Myth: I hired the photographer, and I bought the photographs or images, so they are mine. I can do whatever I want with them.
Fact: When you purchase a CD of images or prints of yourself from a professional photographer, you are buying the images for personal use only. Depending on your agreement with the photographer (which you should always have in writing) this may mean anything from you may look at them whenever you wish, to you may make prints to hang in your home, or maybe even publish them to you social networking pages.
Personal use does not include, you the model, selling the images (as in to autograph at shows, etc) or submitting them to publications. You must have the photographer’s written permission to publish the images anywhere or to sell them.
Myth: I, the model, did the shoot TFP so I may use them anywhere.
Fact: Trade for Print is defined as a shoot where no money is exchanged. The photographer and model simply work together to produce images they can both use to enhance their portfolios. These exchanges should always be accompanied by a TFP Agreement that outlines what each party is going to get from the shoot. In most cases, these images may be used by both the model and photographer in both their print and online portfolios, but the images may not be used by the model for any other reason. Selling these images commercially (to sell a product or service), selling them to fans, or submitting them to publications is prohibited unless stated otherwise in the contract. The photographer maintains copyright on all images taken.
Myth: As the photographer, I may publish my images anywhere I choose.
Fact: Unless you have a legally binding, well written, and signed model release you are dead in the water. You may not publish the images anywhere — even in online portfolios — without a model release. With a quality model release however, you may do almost anything you wish with the images.
Myth: I am the photographer, and I have a model release from the subject, so I may do whatever I want with the images.
Fact: Be extremely careful that you are using a professionally written, legally binding model release. If there are any holes in the wording of your release, you may end up in legal trouble.
If your model release is air tight, well written, and legally binding, this statement is true. A girl who came in to get a pin-up shoot for her husband, could, in theory, end up selling soda on images on grocery store shelves. This is why it is imperative that you read a model release carefully. I cannot tell you how many times I’ve seen some girl sign a contract when she hasn’t read a single word of it. Read your model release carefully- it is the photographer’s golden ticket.
Myth: I may shoot live events anywhere that is public, or where I have purchased a ticket.
Fact: It is true that you may photograph anyone in any public spaces. However, “public spaces” are very limited. Public parks, sidewalks, and roads are certainly permissible, unless you become a public nuisance. However, private clubs, theaters, homes, yards, are all private property. Purchasing a ticket to an event, does not mean you may shoot there. In all cases, you may be removed from private property at the owner’s discretion. In some cases, this may be the owner of the venue him/herself, in other cases it may be the producer of the show as the person who has contracted the venue for the night. The safest bet — always ask permission, and certainly stop shooting if asked — however, never surrender your camera, memory cards, or film. Know your photographer’s rights.
Myth: I had permission to shoot an event, therefore I may sell images of the models/performers that performed at that event.
Fact: This is one of those areas where there are many shades of gray, and many places where the law is open to interpretation- so tread lightly. Commercial sale (i.e. selling a photo of a performer to fans) is not permissible without a model release. Generally speaking, what is permissible is the publication of those images in newspapers (online and print) and magazines (online and print) of what may be deemed as “newsworthy events”. However, there is a lot of room to challenge what is “newsworthy” and what is a violation of privacy, so you should seek an attorney’s professional advisement on a case by case basis if you feel your rights are violated.
Myth: I have the copyright, but someone else is misusing my images on MySpace. Since MySpace is so vast, there’s nothing I can do.
Fact: The MySpace Terms and Agreements contract that everyone must agree to when you become a member of MySpace specifically prohibits the misuse of copyrighted material. If you feel your images, music, or other copyrighted material are being ripped off, email email@example.com with the details of the infringement.
Myth: Someone has broken the law by stealing my idea.
Fact: You cannot copyright an idea, only the expression of that idea.
This requires a bit of explanation. For example, if you told someone about an idea you had, and they ripped it off — you are out of luck. You can only copyright something tangible, like an image, not the idea in your head for an image.
However, what most people mean when they say they were ripped off, is that someone has copied an image they have taken. It has been said that all the good ideas are taken, and in pin-up and burlesque we are often looking into the past for images to replicate. When we are inspired greatly by a piece, and do a version of that work it is known as a Derivative Work. The US Copyright Office has specific laws pertaining to Derivative Works. However, there is a fine line between being “inspired by” someone else’s work, doing an “homage” to someone else’s work, and flat ripping them off.
Very generally speaking, if the work is obviously inspired by another work, and you do a new interpretation of that work, rather than an exact copy, you are usually safe. If you do an exact copy, you could be in legal trouble. The guidelines for what is a duplicate and what is an adaptation of an original photograph are very gray and open to interpretation. Basically, it is up to the original copyright owner to make that determination, then they would send a Cease and Desist or sue you, at which point you must defend your image in court- and it is up to the courts to decide if there has indeed been a copyright infringement.
Example 1: The iconic image of Betty Page hanging an ornament on a Christmas tree. You know the one. Many modern pin up photographers have done an exact duplicate of this photograph. Could Bunny Yeager (the photographer) sue you? Sure, she could. Would she win? Maybe. If she does win, what happens, how much do owe her in damages? That is completely speculative and up to the courts to decide.
In a recent case pop star Madonna was sued by the estate of photographer Guy Boudin, for copyright infringement. (Read ripping off his photos and emulating them in her Hollywood video.) The case was not the first time Madonna has been sued for copyright infringement, and this case was settled out of court for a presumably hefty sum.
Example 2: You just did a circus themed photo shoot, another competing photographer does a circus theme a few months later, but the theme and maybe a few other minor details is all they have in common, resulting in totally different photographs. Are you a victim of being “ripped off”? No. The best advice, is to get over it and just make sure your images are the best they can be. You cannot copyright an idea.
Example 3: A magazine approaches you do purchase an image you have done. They find your price too high, and hire a cheaper photographer to do an exact duplicate of that photograph. Do you have any recourse? It depends. First you have to find a lawyer who will take your case, fork over the cash for representation, and then prove they completely ripped you off.
Myth: A magazine published my photographs, then sold them to another magazine. They informed me that once they run the image, they own copyright.
Fact: Copyright always remains with the photographer, unless the explicitly sell off their rights through contract.
Be careful when signing any and all contracts. Here are some terms to know:
When the word “first” is placed in front of other rights it simply means that the entity purchasing these rights gets to publish/use the image BEFORE anyone else who has purchased license rights. There is usually a waiting period (30-90 days is standard) before you can publish them anywhere else.
Serial rights apply to magazines. This means that the magazine is licensing the right to use the image in magazine format. In other words, if you sell serial rights to magazine A you can’t sell licensing rights to magazine B as well (unless you only sell “FIRST” rights – then you can sell more rights later).
Watch out for this clause. Non-exclusive rights can be a reasonable license to sell but they can also be a quick way to lose the use of your image. Non-exclusive rights mean that the licenser has a specific set of rights at the same time someone else has them as well. The problem is that this clause is usually followed with a large amount of specific rights and many companies use this type of clause to allow them to reprint and resell your work on their own.
One Time Use Rights
One time use means that the entity buying the license can use your image “one time”, for one specified project. They are easy to manage, and often preferred by photographers.
Want to read more on all subjects pertaining to copyright and images? Here are some great resources:
- ASMP Professional Business Practices in Photography
- The Professional Photographer’s Legal Handbook
- Legal Handbook for Photographers: The Rights and Liabilities of Making Images
- Getting Permission: How to License and Clear Materials Online and Off
- ASMP (American Society of Media Photographers) Official Website
- US Copyright Office Official Website