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Monday, November 27, 2006

photos of copyrighted works: do you need a release?

A while ago, I recently wrote an article about the most common mis-perception that photographers have about the subject of model releases. That is, who is culpable for publishing an image of a recognizable person who hasn't given permission? Most photographers think they need the model release to protect themselves, which is the mis-perception. In fact, it's the publisher of the image, not the photographer (in most general cases, with a few unusual exceptions) Yet, I recently got an email from someone that illustrated how this same mis-perception applies to photos of copyrighted material as well. So, I thought I would revisit the issue in this context:

On Nov 17, 1:47pm, A. L. DeWitt wrote:
You can violate that copyright by photographing it and trying to sell the image because, technically, the image of the (Vietnam war) memorial is protected, and the right to sell the image and make money from it is within the copyright of the original sculpture.

well.... not so simple. Just the act of selling a photo of a copyrighted work is not a violation of copyright. A newspaper can write about the sculpture and buy a photo of it from a freelance photographer. (That is, the photographer would sell the image to the newspaper and not be in violation of copyright.) Similarly, an art critic can also license the image from the photographer (again, for money), and this is also not a violation of copyright. The art critic can even say the war memorial is awful and use all sorts of disgraceful language, and publish it on the net or in a newspaper. This is all first-amendment stuff that most anyone should be aware of, of which there are numerous similar examples. This all come under what is called, "fair use".

In short, copyright protections place no restriction on the ability to SELL a photo of a copyrighted work; the restrictions only apply on how a copyrighted work is used or published. If a company uses the image to promote a product or service, this is an example of where the copyright protections apply. This is the kind of use where permission must be granted. Note also that this has nothing to do with the exchange of money--whether a photographer sold it to the people using the image for promotion, or whether the company took the photo themselves, or whether they found the photo in the street. It's the *use* of the photo that matters, not how it was obtained.

Furthermore, the photographer himself is not culpable for how the image is used, even if he did sell it. First there's the example where the photographer couldn't have known the image would be used at all, such as if the company that used the image cut it out of the newspaper (where it was used legitimately), or if the photo was stolen from a website, or found in the street. The photographer isn't responsible. Obviously, the question arises as to how responsible he is if he did knowingly sell it to the company. This brings other lingering questions: did the company disclose exactly what they were doing with it? They could have claimed they were writing a review of the artwork, which doesn't need a release. This sort of "entrapment" is clear, but what about an unintentional lack of disclosure? What if the company simply didn't realize that their "review" of the artwork was, in fact, a veiled form of promotion for their product or service? There are all sorts of gray areas that come up where the photographer can't possibly be the one responsible for figuring all this out. Indeed, the courts look at it this way as well: the burden of responsibility can't lie on a party that isn't responsible for violating the copyright protections. It's the use of the image that can violate copyright, so it follows that the responsibility lies solely with the entity that puts the image into use.

Granted, the photographer could become liable if proper disclosures weren't made, or if the photographer acted in a way to encourage the use, or make claims that could be interpreted as coercion. For example, if the photographer coerced the company into believing (falsely) that the image didn't need a release, simply so he could make a high-profile sale with high returns, he could be dragged into the fight simply because the company is trying to defend itself against the copyright holder. Imagine in court that the company says, "we were told by the photographer that the manner in which we wanted to use the image did not need a release." Whether or not the photographer made such a claim, people are going to want to ask him a few questions.

It's for this (and related) reasons that the best thing for photographers to do for any sale is to disclaim any knowledge or responsibility for how the licensee of a photo may use the image, and that no opinion on its usability is expressed. This is best written into any financial agreement between the two, whether it's a price quote, a sales receipt, or a license agreement. Even email exchanges can be used as evidence of the knowledge and intentions exchanged between parties, often overriding what may be in contractual agreements.

So, to put it all together, we pick up from DeWitt's message again:

no publisher wants to run a production of 10,000 books and wind up having federal marshals seize them to uphold an injunction granted under copyright
Exactly--this is why it's incumbent on the PUBLISHER of images to make sure that the images they acquire from photographers (or anyone else) are either released, or not subject to copyright infringement or privacy/commerce laws. (Often, the publishers license unreleased photos, and then go get the releases themselves directly from the copyright holder so as to assure the protection.)

The only reason why photographers need model releases is not to protect themselves, it's to make the images they take "salable" to buyers who would need such protections. And, as just noted above, many high-profile companies don't care whether the photographer has a release, because they can't necessarily trust it. They get it themselves.
Most of law and litigation boils down to a big game of chicken, and most lawyers approach the game from a standpoint of limiting the risks.
...and the litigating lawyers approach the game from a standpoint of optimizing return. They do so by targeting the entities with money. Photographers usually have too little money to bother (or offset the cost of) suing them. Publishers, on the other hand, often do have such funds. So, not only are photographers protected by virtue of that they are not the ones putting the images into use, but they have that double protection by the reality that it's not worth suing them anyway.

To tie up one loose end: this entire article discusses the topic in the context of licensing images to third parties. If the photographer publishes the image himself, he becomes the publisher, and is therefore subject to the same responsibilities as any other publisher. But note that the act of having the image "available" for sale is not a form of publishing or promotion that the courts view as a violation of copyright. You can put such photos on a website and say they are available for licensing, and this is not a violation. (The limitation may be due to other factors, such as whether the photos were legitimately taken in the first place, such as on private property where there was notice that no photography is permitted.)

Oh, another loose end: "artwork" is not viewed as a form of publication that's subject to this, and while there is much precedent for artwork to be protected under the First Amendment, there are exceptions to the rule as well. So, selling prints of copyrighted work is not such a straightforward issue as is selling a photo book that has photos in them. In short, artwork will be considered on a case-by-case basis by the courts.