KOSTIW LAW GROUP, PC

 

Photography and Image Rights

By Vincent J. Kostiw, Esq., as published in the Communiqué, the monthly publication of the Clark County Bar Association.

So you went on vacation and took some great photographs with your new digital camera.  Some are of famous buildings, some have people in them, some don’t.  You post them on your website and get comments from your friends about how great the photos are and that you should sell them to a magazine.

Or, you get back from a vacation in a beautiful place and your friends start calling you because they saw a picture of you in that beautiful vacation spot on the Travel Channel or in a magazine.  You don’t remember anybody asking for your permission to be in any photo.  Should someone have asked for your permission?  Should you get compensated?  Is that legal?  What can you do?

Photographs that you take.

From a legal standpoint a photograph is a picture captured in a camera whether it is captured the old fashioned way using a chemical process, or captured in your new digital camera using digital processing.

The moment you snap the shutter of your camera and that image is exposed to your film or recorded by your memory card, by law you are granted a copyright in that photograph provided that you did not take the photograph as a “work made for hire”. 

A “work made for hire” is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned by a third party, if you and the third party expressly agree in an instrument signed by you and the third party that the work shall be considered a “work made for hire”.

A copyright in a photograph is a bundle of rights to control the copying, reproduction, distribution, and derivative use of the photograph, as well as rights to publicly display the photograph, and sue should another infringe your copyright in the photograph.  No formal registration of this copyright is required to exercise these rights, other than the right to sue for infringement.  In general, an individual and his or her estate owns this copyright for the lifetime of the creator, plus 70 years from his or her death.

Although no formal registration with the Copyright Office of the Library of Congress is required, as a practical matter any photograph or collection of photographs that you publish or intend to publish should be registered.  The fees are inexpensive and the forms are relatively easy to complete.

The protection of copyright is fundamental under U.S. law.

The concept of copyright in the United States goes back to its formation.  Article I, Section 8 of the U.S. Constitution provides for Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”; this is the foundation of copyright and patent law in the United States.  The idea is to encourage creativity by allowing people a degree of protection in their creative works, while sharing their creative works with others, who may then be inspired to create new works building on prior works.  Of course photography, which did not exist at the time of the drafting of the U.S. Constitution, was not originally a subject of copyright, although photography did become a subject of copyright when photography began to become popular in the late 19th Century.

You have to actually create the photograph to obtain the copyright.  You cannot obtain a copyright in an idea or concept about a photograph, only in the tangible expression of that idea, or the photograph itself.  Your friend who told you that the photograph you took would be “cool shot” beforehand has no claim to your copyright in the photograph, neither does the art director or the set designer on a commercial photo shoot absent a written “work made for hire” agreement.

Allowing others to use your photograph.

If you would like to allow another person or entity to use your photograph, they must obtain a license from you in order to legally use the photograph.  A license is simply a permission to use the photograph, with or without payment, not a transfer of copyright ownership.  A license can be exclusive or non-exclusive.

If you would like to sell a photograph outright, it is better for you to take the photograph for yourself and transfer the copyright, rather than take the photograph as a “work made for hire”, as you will initially own the copyright and thus be able to negotiate price after the photo is taken, and under current law you can get your copyright back after 35 years under a fairly new “recapture” provision added to copyright law.

Fair Use.

Copyright law allows a third party to copy, use and otherwise display your work without your permission in certain cases.  This is the doctrine of “fair use”.  This copying or use must be for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.  What constitutes fair use and where the line constituting infringement lies is always subject to interpretation.  Under copyright law, the factors to consider in determining fair use include the purpose and character of the use; the nature of your copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and  the effect of the use upon the potential market for or value of the copyrighted work.

Fair use is not copying an image off the Internet and using it on your website as a background, whether or not you give credit to the creator or source.  Fair use is not copying images and printing them or emailing them to your friends in a slideshow.  Fair use is not copying an image and putting it on a holiday card that you send to your friends.  These are all examples of copyright infringement.  We have all seen the FBI warnings at the beginning of DVDs that warn of civil and criminal penalties for copyright infringement.  Take these warnings seriously!

The bottom line is if you did not take the photograph it is not yours and you cannot use it without obtaining permission to do so, unless the use is truly a “fair use” of the photograph as explained above.

Rights of Publicity, Model and Property Releases.

You’ve probably heard of photographers having their models sign “model releases”.  Why, if the photographer owns the copyright, would he or she need a “release” from the model to use the photo?  In addition to the rights an individual may have in protecting their reputation and their right of privacy, a number of states have law on what is commonly referred to as a Right of Publicity, and about 11 states, including Nevada, require some type of written consent from a person to use their image or likeness in a commercial manner.  Rights of Publicity are an outgrowth of privacy rights when an image is used in a commercial forum.  The concept is that a person’s image or likeness has some value and that a third party should not profit from that value without permission from and/or compensation paid to that person whose image or likeness is captured in a photograph.

In Nevada, for the purposes of photography there is a right of publicity in the image or likeness of every person. The right endures for a term consisting of the life of the person and 50 years after his or her death, regardless of whether the person commercially exploits the right during his lifetime.  Any commercial use by another of the image or likeness of a person requires the written consent of that person or his or her estate.  Some exceptions to this rule include celebrity impersonations and uses by the State to promote travel and tourism.  Nevada law provides for legal and equitable remedies should someone use your image or likeness in a commercial manner without your permission (See Nevada Revised Statutes Sections 597.770 – 597.810.)

Property Releases.

The issues that arise with real and personal property are a little bit different.  Although one can claim copyright in an architectural work, most issues that arise regarding getting permission to photograph one’s property involve association, conversion or trademark claims.  The only area of case law you will find that gives some clarity to these issues have to do with trademark. Cases of association and conversion have not settled the issues that often arise.  To be safe, get a release.  And remember, property can be real property such as a house, or personal property such as a car, a pet or a work of art.

Association is a theory in which a person’s identity may be associated with the property.  Issues that may arise related to association are likely to be those of privacy and defamation.  Imagine if your house is photographed and shown in an article about escaped felons.  How would you feel about that?  How would you feel when you neighbor sees the article?  Get a release.

Conversion is a theory in which property is used for personal gain without the owner’s permission.  If someone rents out your property when you are out of town that person has converted your property to their use.  The question is if a person takes a photograph of your property and rents out that photograph, is that conversion?  This is unclear.  Get a release.

Sometimes there are logos, signs or buildings that appear in your photograph that may be protected under trademark law (even in the background).  The property can include or even be a trademark.  Some examples of properties that have spawned lawsuits or that industry professionals warn against using in a commercial manner without obtaining a property release are the Hollywood Sign, the Rock & Roll hall of Fame, the Rolls Royce hood ornament, and the New York Stock Exchange.  Also be careful when your photograph includes static or active billboards or marquees, there is likely copyrighted material on the billboard or marquee.  Get a release.

To sum this all up, if you take a photograph of someone or something and plan to use the photograph in a commercial manner, you had better get permission beforehand.  Take the photo yourself, own the copyright, negotiate its sale later, and by all means get model and property releases.

Vincent J. Kostiw is an attorney in private practice in Las Vegas, Nevada.  He is the President of Kostiw Law Group, PC and practices primarily in the areas of business and securities law, intellectual property law, and entertainment law.  He is also a professional, and often published photographer, the President of Image Lab, Inc., and the Co-founder of Alsace Talent, Inc. More information on photography and the law can be found at asmp.org.

© 2007 Vincent J. Kostiw, All Rights Reserved.

*Note: This publication is simply the opinion of the author and should not be construed as legal advice.*

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