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March 3, 2010

Stopped Taking Photos Because of Photo Releases

agnes-release_me.jpgI work for a non-profit and my board members are obsessed with getting photo releases - but as they don't have a good one and they often want to photograph events with LOTS of people - they refrain from taking photos at all. I was under the impression that unless a photo was going to be sold, no release was needed. Is there a guideline that will enlighten both myself and my board about when photos and video that will be used for things like social media and newsletters require releases from their subjects?  I am afraid this question is going to lead to a "it varies from state to state" answer. Actually, the answer doesn't vary from state to state (and in any case the Dear Rich Staff would never do you like that!) By the way, you might get more out of reading this discussion or by having your nonprofit spring for this book.
You need a release if ...  A properly drafted release basically shields you from lawsuits over two things: (1) you're using someone's image to sell or endorse something; or (2) using the image in a way that harms the person --  it invades the person's privacy or defames the person or otherwise gets them so upset that they call a lawyer and go after the publisher of the photo and sometimes the photographer. 
You do not need a release if ... You do not need a release to use a person's name or image for informational purposes. An informational (or "editorial") purpose is anything that informs, educates, or expresses opinions protected as freedom of speech. So if you have a section of your website such as "About Our Members" or you include the images in your non-profit newsletter -- for example, "Members Protest Disney World Mouse Exploitation," then you wouldn't need a release. 
Finally ... although it doesn't have the full legal punch of a release, you can always prominently post your photo policy at group gatherings -- a statement such as "We'll be taking photos at our event and posting them at our website. If you don't wish to be included, please inform the photographer." 
 

Posted by Rich Stim | | Email This Post

Posted In: advertising , permission , photography , release , right of publicity

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January 12, 2010

Restaurant Celebrity Photos

Thumbnail image for iStock_000007560726XSmall.jpgDear Rich: If you snap a photo with a celebrity in your place of business can you then use that photo in a documentary to show that the business attracts celebrity patrons? We don't have a written release from the celebrities. The short answer is, "yes," assuming you have the photographer's permission. You should not use the photos in ads for the restaurant -- that is, implying the celebrity endorses the restaurant -- and you probably shouldn't use the celeb photos in ads for the documentary, either. But if you're using them within the documentary simply to show that the celebrity ate at the restaurant--and the celebrity was aware the photo was being taken (no hidden cameras)  -- there shouldn't be a problem. 
Some celebrities that the Dear Rich Staff has seen while eating in restaurants: James Mason (yes, we're old), Charles Nelson Reilly, Patti Smith, and Tom Cruise (when he was still married to Mimi Rogers -- although she wasn't eating with him which is too bad since we're big Mimi Rogers fans).   

For more information on copyright law, see my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

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Posted In: celebrity , photography , right of publicity

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December 7, 2009

This Is a Test: The Right to Publish Old Photos

iStock_000008730721XSmall.jpg12/09/09 - Note this answer has been corrected following initial publication.
 
Dear Rich: I recently took a public relations accreditation test that included the question below. The answer was D. If the photos were in company files why can't it be argued they were paid for? If the photos were 20 to 100 years old does the copyright still hold? 

To celebrate its 100th anniversary, your company wants to publish a coffee-table book of photos depicting the company's history. You dig through the files and old annual reports and find many photos, some of which have never been published. Some of the unpublished photos are dated and stamped on the back with the name of a photography studio that has been out of business for 20 years. When you consult with your publisher about the most effective way to reproduce these particular prints, the publisher says they cannot reprint them without the original photographer's permission. You are unable to find the original contract between the company and the photographer. Can you reprint the photos without the original photographer's permission? 
A. Yes, if you pay the publisher a fee to reproduce the photos. 
B. Yes, the company paid for the photography and therefore owns the prints. 
C. Yes, you can reproduce the photos if you give proper credit to the photographer. 
D. No, the photographer or heirs own the copyright and must grant permission to reproduce the unpublished photographs. 

The answer to your question within a question is that D is the best (or "most correct") answer. We understand your desire to argue the point - that's one of the reasons that the Dear Rich Staff quit teaching - but unless there is documentation showing that the photographer transferred rights to the company, the photographer retains copyright. The act of paying for a service such as photography does by itself not grant copyright.
A better and much more long-winded answer would have been:
E. Probably Not. If the photos were subject to a work for hire arrangement executed before January 1, 1978, it's possible that the republication would be permitted since such agreements are interpreted more "loosely" than under the current Copyright Act. However, as a general rule, photos are protected for the life of the author plus seventy years (although if the U.S. ever passes Orphan Works legislation, this whole question will be moot). 
Ennyway we're happy to learn that people in public relations are accredited and hope you passed your test and are earning 20% more than your colleagues. (Also we hope you will indemnify us in case the accreditation tester sues us for copyright infringement.)

Posted by Rich Stim | | Email This Post

Posted In: copyright , permission , photography , transfers

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October 29, 2009

Church Steeples and Copyright

iStock_000000131834XSmall.jpgDear Rich: I took a photograph of a twin steeple church several years ago. The church has since been destroyed by fire and the location is now a retail strip mall. I would like to sell the photo of the church as art to local residents in the form of framed prints, greeting cards, etc. Do I need a property release for a property that doesn't exist anymore? No (and you didn't need a property release in the first place). As the Dear Rich Staff has indicated in previous entries, copyright law permits the copying and reproduction of publicly viewable buildings. Trademark law rarely gets in the way except if the building (or some feature of it) is used as a trademark -- not the case with a church steeple. By the way, there's always hope that your strip mall will return to church steeples.

Curious about property releases? Find out more with Stephen Fishman's The Copyright Handbook: What Every Writer Needs to Know.

Posted by Rich Stim | | Email This Post

Posted In: architecture , copyright , photography

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October 12, 2009

Till Copyright Do Us Part

iStock_000000934163XSmall.jpgDear Rich: For my daughter's wedding this past August we hired a photographer that relinquishes all copyrights to the photos. The package deal that we chose gave us a DVD album of the some 300+ photos that he took of the bride and groom with an additional 40+ photos of friends and family as we left the church. As parents of the bride we chose the photographer and package deal for the wedding and paid for it. I feel that we now own the pictures and do not have an obligation, moral or otherwise, to make a copy of the DVDs to hand over to the groom's parents. Nor should I feel bad that we did not hire the photographer to do extended family sittings - we paid only for an extended bride and groom photo shoot. The photographer has posted all the pictures he gave us on his web site and his prices for printing up the photos is very reasonable. My question is an etiquette question. Is it wrong to ask the groom's parents to pay for a copy of the DVDs that the photographer delivered to us? I would like to ask the groom's parents to pay about 20% of the total cost of the photographer. The Dear Rich Staff is thrilled to have been asked an etiquette question. On the other hand, we're a bit distressed to note that somebody's marriage is starting out with the in-laws bickering over photo reproduction rights. 
We're hung up about who owns the copyright in the wedding photos. You say the photographer "relinquished" the copyright. Did he assign the rights to you? If so, why is he posting the photos and selling prints? We have a feeling he didn't assign copyright and that's why he can still post and sell the pictures. If we're right and the photographer still owns the copyright, then you have the perfect (and most pathetic) excuse for not duplicating the DVD -- you could be sued for copyright infringement. 
For the sake of the happy couple. We're not sure how you arrived at the 20% figure but we wish this matter had been discussed before hostage negotiations were commenced over the  wedding DVD. Regardless of who owns the copyright, we hope you follow Dr. Phil's advice (See #4) and we also suggest that you consult with the bride and groom before making any decisions (as they are the ones who will suffer the most from any resulting squabbles).

There's more information about copyrights in my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

Posted by Rich Stim | | Email This Post

Posted In: assignment , copyright , photography

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September 16, 2009

Rights to Use Taliban Video Screenshot

afghan.jpgDear Rich: I make photo t-shirts and other photo gifts and take orders online at my website.  I have designed a t-shirt with a photo of a soldier being held captive by the Taliban with the text "Free Bowe Bergdahl" over the photo. I pulled three different photos from the net, one from the Taliban video, a photo of Bowe Bergdahl before entering the military, and the third of him in uniform. I plan to donate most of the proceeds to the American Red Cross from the sale of these shirts, but am I at risk of being sued if I use the photos? It's difficult for us to assess your claims because the grim reality of the underlying situation seems to make questions of copyright law seem trivial. As well-meaning as you may be with your t-shirt, it's difficult to understand how it would not be perceived as exploiting the situation, rather than helping it. In any case, if you're concerned about the copyright analysis, here it is.
Yes, you could be sued if the copyright owners of the two pre-capture photos find out about your use and challenge you in court (probably an unlikely scenario). You're free to do what you want with the Taliban-created image (since for obvious reasons, nobody will claim copyright to that imagery). The fact that you're donating some of the money to the American Red Cross doesn't affect the legal claims (only the amount of damages). And if you are sued, we think you would have a hard time arguing fair use since you are not using the photos in a transformative manner -- you're simply reproducing them in order to sell t-shirts. 

Posted by Rich Stim | | Email This Post

Posted In: copyright , licenses , photography , t-shirts

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September 15, 2009

Release for Photo of Rock Club Interior

backstage.jpgDear Rich: Someone has offered to license one of my images of the interior of a famous rock club for an album cover. But I don't have a property release for the image. Is an album cover a commercial use that would require a release or am I safe? What if I included licensing terms that says that all liability for lack of releases must be born by the buyer -- will I be safe? Your album-cover use probably won't require a property release unless: (1) the name or other trademarks of the club are visible (for example, the words "The Fillmore," appear above the door) (2) the photo invades the privacy of people portrayed in the picture (e.g, one patron is canoodling another, or it's obvious you need someone's okay), (3) there are copyrighted images within your club interior that are clearly visible or (4) the club has a posted policy (or it's printed on your ticket) regarding the use of cameras within the building. (As for the latter, it's not clear to us whether a venue could halt the use of images taken in violation of a "no cameras" environment. More information on the policy would be needed.)
Liability Shifting. The Dear Rich Staff -- which has seen its share of rock club interiors -- is always in favor of liability shifting devices and it would be great if you can include a provision that the record label or publisher bears the burden for defending any lawsuits that arise from your photo. The trouble is that a savvy buyer will quickly strike such a provision (wouldn't you?) and insist that the photographer guarantee the rights to use the image.

To learn more about licensing, check out my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

Posted by Rich Stim | | Email This Post

Posted In: copyright , licenses , photography , right of privacy

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August 24, 2009

Mary Tyler Moore and the Kinko's Konondrum

large_mtm-hatarty.jpgDear Rich: I want to take a digital photo of the famous opening shot for the Mary Tyler Moore Show where she tosses her hat up in the air and have that image spread onto a canvas. It would only be reproduced once and hung up at home for display. My problem is that I need to have one of the online companies reproduce this for me as I don't have the equipment to reproduce it onto canvas myself. They are asking if I have legal copyright permission to do this. Do I need it?! The short answer is that you probably don't need permission. Your use is likely excused under fair use principles (we won't go into the boring details). The trouble is that you can't explain that to the reproduction company because they want something in their files that says you have permission so that they can get you to pay for their lawsuit in case Mary (or ABC Family Television) finds out about your painting, decides it's improper and sues the reproduction company -- a situation that is about as unlikely as Mary turning the whole world on with her smile. 
The Kinko's Kondondrum
The Dear Rich Staff refers to your situation as the Kinko's Konondrum -- so named because we once faced this exact situation at a Kinko's (before they were FedExKinko's ... er, FedExOffice) and we tried to explain to the clerk behind the counter that we were the author of a book on copyright and that yes, our use was permissible even though we did not have permission. The clerk wasn't interested in our claims and we couldn't blame him.  (This was a few years after Kinko's had lost a fair use case over coursepack copying). In the end, we lied to get the job done. We do not advise you to lie and wish you the best in dealing with your moral dilemma. BTW, we hope you like our artistic take on Mary's hat throw --  we call it 'Love is All Around.'

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Posted In: art , copyright , infringement , paintings , permission , photography

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August 10, 2009

Using Disney Photos in Travel Book

iStock_000000390892XSmall.jpgDear Rich: I am writing a travel book. I would like to include photographs of items that are subject to a Disney trademark, such as the Disneyland castle.  If I own the copyright to the photograph, would I need to get a license to include it in my book?  Are there any issues with discussing these items, but without including photographs? What about other places in the Disney parks that are on Disney property, but probably not subject to any trademarks, such as a building on Main Street or a trash can? First, we're not sure that the Disney World trash cans lack trademarks. (And in any case, even if they don't contain trademarks, trash cans can be arranged to create famous Disney marks -- as our blog photo demonstrates). As for the remainder of your questions, Disney creates some hurdles for travel publishers. 
We Appreciate Your Understanding  
A member of the Walt Disney staff wrote to the Dear Rich staff (if only our staffs could meet!) and explained that 
"All requests to use materials which are copyrighted by The Walt Disney Company (e.g. photos, logos, characters, etc.) must be directed, in writing, to the following address: Walt Disney World Legal Department Attn: Requests Post Office Box 10000 Lake Buena Vista, FL 32830-1000 Due to the volume of third-party requests that we receive and in view of the consideration process that these requests are subject to, please know that it may take up to eight weeks for a response to be provided. As such, any requests that are received indicating the need for an immediate response are automatically declined and returned to the sender. We appreciate your understanding." 
In short, if you are asking for assistance, whatever you do, don't tick off the WDW staff by asking that they expedite your request. (That only works here at Dear Rich headquarters) You can learn more about Disney photo rules at the Disney photography site and its forum, the Disney photo forum (and maybe at the DIS site, too). We've never been to WDW or Disneyland so we're not sure if the purchase of a ticket incorporates photo rules as well, but a visit to Disney property is a visit to private property so you may have signed away your rights on this one, just by purchasing a ticket. You can discuss the parks (in textual form) without worrying about trademark issues. And arguably, under first amendment principles (and possibly trademark fair use principles), you can reproduce those trademarks for editorial purposes. (We recommend you consult other travel books and see how they've handled it since Disney is not considered the friendliest IP owner.  (PS Here's an interesting new fair use case to throw into the mix.)

 

Posted by Rich Stim | | Email This Post

Posted In: architecture , copyright , fair use , photography , trademarks

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July 31, 2009

Permission Form to Publish Pix @ Website

RIPER_cvr.gifDear Rich: I am looking for a very simple permission slip that will, when signed, allow us to publish pictures taken during church events to an events page and special pages of our website. Is there such a thing? The Dear Rich staff has dug deep into its volumes of legal blather and pulled out the following basic permission form, modified from an agreement in our helpful tome, Getting Permission. This is a very simple photo permission agreement and should be used only for republishing someone's photograph at a website. If a fee is charged, you can add a statement regarding that information and if a photo credit is to be provided, list that somewhere in the agreement -- for example, "Photographer shall be credited as follows: 'Photo Copyright 2009 Jim Smith.'" If you need more than this or are concerned about legal rights, etc. review the book.Simple Photo Permission Agreement for Use at Website . 

Posted by Rich Stim | | Email This Post

Posted In: permission , photography , websites

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July 7, 2009

Q: Why Wasn't Warhol Sued? A: He Was

andy-warhol-flowers-1964-fs-ii6.jpgDear Rich: Copyright is one of my favorite subjects as I work with students who will soon be school teachers. Here is a question my students have been exploring. Considering all the problems that Shepard Fairey has because of his derivative poster based on a photo of Barack Obama made me wonder, did Andy Warhol's paintings and prints of Campbell's soup cans, Mickey Mouse, Marilyn Monroe get him into trouble with the owners of those original works? The short answer to your question is that Warhol's art has triggered some lawsuits. 
Patricia Caulfield, the photographer whose work was used as the basis of Warhol's flower prints (above) sued in November 1966 and settled for cash and artwork. Warhol's 1964 work, 16 Jackies, was the subject of a lawsuit brought against the Warhol Foundation in 1996 by the photographer of the original Jackie photos. That led the Foundation to sue Warhol's insurer. Warhol was never sued over his Marilyns, which were based on a publicity still of Monroe. We're not sure how Warhol managed the rights for his Mickey Mouse but apparently he didn't run into the same kind of litigation in which 60's cartoonist Dan O'Neill became embroiled. Perhaps because Dan was naughty (parental advisory), and Andy was nice? Campbell's Soup Company didn't litigate; they exploited the efforts of their most famous chicken-noodle fan. The company even offers an Art of Soup contest in collaboration with the Warhol Museum. PS Speaking of cool Warhol collaborations, the Dear Rich Staff recommends this.

Posted by Rich Stim | | Email This Post

Posted In: art , celebrities , characters , copyright , paintings , photography , right of publicity

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June 26, 2009

Creating Logo Based on Building

White_Castle.jpgDear Rich: I saw an article on your blog relating to permission to publish pictures of buildings. I'm currently designing a logo which is based on an iconic building in London. You probably need to know 'how much' it's based on the building, but what sort of ground am I on with regard to copyright? The short answer is that you may run into trademark problems (we're assuming your use for the logo is in the U.K,). Copyright is not likely to be an issue for you. The architecture for newer buildings is protected under U.K. copyright law (the life of the author/architect plus seventy years) but there is an exception  (see section 62) that permits graphic or photographic representations for publicly displayed architecture. The Dear Rich staff is more more concerned about your rights under trade mark law (it's two words in the U.K.) A logo is intended to transamerica_logo.gifestablish an association with a product or service. If the building you are using is already associated with a commercial enterprise -- for example, the TransAmerica pyramid in foggy downtown San Francisco  -- then consumers may be confused by your use, or alternatively, a U.K. trade mark examiner, may reject your registration. A trade mark examiner may also reject the application if the use of the building implies royal patronage or if it is prohibited for statutory reasons. Since so much time and money is invested in a new logo (and particularly if you are creating the work for a client), it may be time to bring in the lawyers.


Posted by Rich Stim | | Email This Post

Posted In: architecture , copyright , photography , trademarks

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June 24, 2009

Copyright in American Indian Photos

Thumbnail image for Curtis1.jpg
Dear Rich: I've recently been using images from Edward S. Curtis'  Portraits from American Indian Life. The book was published in 1972 and has a copyright for that date. Curtis died in 1952 and the book itself is now rare. According to the research I've done the photos themselves were under Curtis' copyright which was forfeited by his daughter and family when he died.  Does the book publisher -- who no longer exists but supposedly acquired the copyrighted material from J. P. Morgan (to whom Curtis had sold the original copyright) -- still have the copyright to the material? If so, who do I need to contact in order to obtain perission to continue to use the four images I've used. I have reproduced his images by free hand as closely  as I can. [Corrected 06/28/2009 -- Following our initial response to this question, Peter Hirtle offered three corrections. First, he reported that the Library of Congress considers all of Curtis' work to be in the public domain. Second, our dates were off by one year, as corrected below. And third, he reports that "[b]ecause the photographs were individually registered, renewal had to occur according to the date of registration. If they had never been registered, then renewal date would depend upon the date of first publication." Thanks! Check out Peter's copyright duration chart, here.] 
The short answer is that you probably don't need to obtain permission from anyone to reproduce the images. Curtis' American Indian photographs were originally published in a series of books from 1907 through 1930. All of the photos in the books published before 1923 are in the public domain. The photos published between 1923 and 1930 are probably in the public domain since it estimated only about 11 percent of copyrights issued before 1964 were renewed. (We explain how to search Copyright Office records in this post.) 
What if the copyright was renewed?
If the copyright was timely renewed in the 1923-1930 volumes, those photos won't begin dropping into the PD until 2027 (75 years from Curtis' death). You are probably familiar with the Library of Congress' digital reproductions of Curtis' work (the photo above is currently on loan to the Dear Rich Staff). One nice thing about the LOC project is that it groups the photos by year of publication.
What about your creations?
Since the work is in the public domain, you will own copyright in your contributions, though anyone else is also able to make free hand reproductions. As always, most of what we know about the public domain comes from Steven Fishman's engaging Nolo book and treatise. 

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Posted In: copyright , infringement , permission , photography

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June 18, 2009

Wedding Videography and Sync License

Dear Rich: I'm thinking of starting a wedding videography business and I'm trying to find out if and/or when I need to obtain music license(s) for making wedding DVDs. Researching on the web has proven nothing but confusing. Some places say using any song under any circumstance is illegal. Other's say something along the lines of... the couple has the right to private listening/playing/performing these songs since the wedding is a private event. I'm not wanting to add the music (I have a production music library for that). I'm just wanting to know if any songs played or sung during the ceremony need licenses like what about if someone sings or plays Shania Twain's "From This Moment" during the unity candle. I even asked a lawyer about this and he said that because only a couple copies are made it's covered under fair use. I've researched fair use and don't think this qualifies. I'm not a lawyer, but if a lawyer doesn't make sense, you understand my apprehension? In order to distribute a DVD in which music accompanies a video, you need a sync license from the owner of the song. Good luck getting one. The Harry Fox Agency tried to organize a system for people like you and you can read about their attempts, here. In addition, if a DJ at the wedding party plays pre-recorded music (not a wedding band covering the song), you'd need permission (a Master Use license) from the owner of the recording (a record company). We assume you won't have the ability to research this stuff and enter into separate licenses for every song (even if you could get the music publisher or record company to take your calls). 
Are you an infringer if you don't get a sync license? 
Probably. Will you get caught? Probably not. Unless you're videoing a wedding in which someone from the RIAA marries someone from ASCAP, chances are good that nobody will know or care about your work. The legal advice you received may also apply -- if you are hassled, you may be able to argue that it's fair use but that depends on the four fair use factors, particularly the first and last ones. If you're looking for a jerry-rigged solution to your situation, you could obtain a mechanical license for the song from Harry Fox and if hassled, argue that you made these payments in lieu of any other system for compensation. The mechanical license is not intended to cover video but your payment would demonstrate your good faith (and the Dear Rich staff bets that a music publisher is more likely to back off if you took this route). What's the video clip got to do with your question? This movie has our favorite wedding music. 

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Posted In: copyright , music , permission , photography , video

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April 15, 2009

Consent and Release for Documentary Interview Subject

videointerview.jpgDear Rich: I have a friend who's working on a documentary and he will be interviewing a lot of people. He wants a form (assuming one is necessary) that basically gives him the proper rights to use the footage from the interviews. Can you help? Absolutely. Releases and consents are not always required -- particularly if the interview is for informational purposes such as a documentary film or news article. Sorting out the difference between a commercial or informational use can be confusing and you're usually best off getting releases whenever possible. According to the Dear Rich staff, if you want to keep things very simple, you can start the interview by filming a video consent -- for example, stating, "As you know we're making a documentary film and by participating, you consent to our use of your image and words in that documentary, no matter what form it is in or how it is distributed. Is that okay with you?" If you want a more formal full-blown universal release -- for example, to show an insurer or a company that acquires distribution -- use the form (and explanation) shown below (it's also posted here).  All-Purpose Interview Release

This is an all-purpose release to be used in the event you are interviewing someone for a book, podcast, video, or any other work in which you must obtain consent. You don't always need more, so to learn more, check out my Nolo book, Getting Permission: How to Clear Copyrighted Works.

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Posted In: Richard Stim , permission , photography , video

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