# Copyright - Are There Limits?



## smoke665 (Oct 12, 2016)

Question came up recently regarding the use of a photo of an individual in an ad. The photographer's release specifically granted him copyright to the image. The  photographer sold the image to an advertising agency, who in turn used the image in an ad for their client. The person in the image sued the photographer for compensation claiming the use of the photo caused him harm. In the ruling the judge dismissed the case against the photographer, but indicated the plaintiff should seek a suit against the advertising agency. The judge's ruling indicated that a copyright does not give "exclusive and unlimited right" to use a photo in any manner without the approval of the subject in the photo. The judge cited the use of a photo in circumstances that would cause harm to the subject of the photo as an example.

Anyone come across this before and what limits if any are there on the use of a copyrighted image?


----------



## 480sparky (Oct 12, 2016)

He didn't get any copyright from his release.  He got his copyright automatically when he took the image.

Without knowing the actual text of the release, nor the agreement between the photographer and the ad agency, nor actually how the image was used, we're really just guessing.


----------



## ClickAddict (Oct 12, 2016)

In Canada there is a law that protects an individual for certain uses of photos (Yes even when releases are signed).  Uses which would imply negatively on the subject.

For instance and AD that says "Anybody you know might have Aids", or "Maybe your neighbor is abusive" etc... with focus on one individual on the photo.  

A person might be totally against eating meat, but this law would not stop the from being in a marketing promotion for a Hamburger joint.  It's more for issues which are considered negatively in general.

There is a clause which can be put in the release, which states the model approves of those type of ads as well.  (Saw the specific line, can't recall it now)  It's typically recommended not to put it in a standard release (May scare away models from signing) and to use it only if the purpose of the photo would be for potential "negative type" ads.


----------



## smoke665 (Oct 12, 2016)

ClickAddict said:


> For instance and AD that says "Anybody you know might have Aids", or "Maybe your neighbor is abusive" etc... with focus on one individual on the photo.



Not the same, but similar that the model claimed caused him to lose his full time job, because of the controversial nature of the ad.


----------



## smoke665 (Oct 12, 2016)

480sparky said:


> He didn't get any copyright from his release. He got his copyright automatically when he took the image.



True, but in this case the photographer's release stated that he owned the copyright on the photo.


----------



## tirediron (Oct 12, 2016)

smoke665 said:


> 480sparky said:
> 
> 
> > He didn't get any copyright from his release. He got his copyright automatically when he took the image.
> ...


Which is true, but those are two different things.  The release is the document signed by the subject(s) of the image granting permission to the photographer (and usually his/her assigns) permission to use that image for specified purposes.  Copyright is the legal right of the photographer to that work.  Copyright is what ensures that the photographer is protected; no one can use his/her work without permission, and the release ensures that the subject is protected and his/her/their image can only be used as agreed upon at the time of signing.


----------



## ClickAddict (Oct 12, 2016)

What Sparky is saying is that a release stating the photographer owns copyright is redundant.  He owns it by default UNLESS he signs it away.  (There are some exceptions is some countries, depending on if the photos are commissioned but in the USA/Canada the photographer typically owns them, unless contracts state otherwise) Owning copyright does not allow the photographer the use to the photos in a commercial sense  (Selling to be used for advertisement for instance) .  That's what a release is for.


----------



## Gary A. (Oct 12, 2016)

I think, in the USA, it would boil down entirely to the language of the release.  The release could be wide or narrow affecting the usage of the photo.  A vague release would be a cause for a law suit.  In support of the judge's remarks, a copyright does not give you carte blanc to do with the image as you may ... but the right release would ... or would not ... all depending on the language of the release.


----------



## unpopular (Oct 12, 2016)

If the property was transferred outright to the ad agency, then all the liability would go with that transfer. Furthermore, the damages incurred were created by the ad agency, not the photographer.

That said, I do not think the photographer is out of the water just yet. While the model can sue the ad agency, the ad agency may be able to sue the photographer, claiming that he sold them a product which in good faith they believed was suitable for their use. This especially so if the photographer knew that the image was intended for commercial advertising purposes, which gives the model far more rights than, say, journalism. 

Though, these are two very different issues, however.


----------



## smoke665 (Oct 12, 2016)

So if I'm reading everyone correct  "copyright" establishes ownership, but doen't establish what the owner can do with the copywrited material without specific verbage on same. Would this apply to other photos such as landscapes, buildings etc?


----------



## tirediron (Oct 12, 2016)

smoke665 said:


> So if I'm reading everyone correct  "copyright" establishes ownership, but doen't establish what the owner can do with the copywrited material without specific verbage on same. Would this apply to other photos such as landscapes, buildings etc?


Exactly right.


----------



## smoke665 (Oct 12, 2016)

unpopular said:


> If the property was transferred outright to the ad agency, then all the liability would go with that transfer.



So if there was a failure to get a proper release for the use would that become the responsibility of the new owner of the copyright?


----------



## unpopular (Oct 12, 2016)

smoke665 said:


> So if I'm reading everyone correct  "copyright" establishes ownership, but doen't establish what the owner can do with the copywrited material without specific verbage on same. Would this apply to other photos such as landscapes, buildings etc?



Discalimer - I am not an attorney. The following is intended for conjecture purposes only and is not intended to inform, educate, or be used as advice in regard to any actual circumstance. Do not get legal information from an internet photography forum!

AFAIK The issue with models and commercial usage is endorsement. We do not "own" our likeness, but we do have certain rights concerning our reputation. Let's say that a young an aspiring female model for a provocative photo set. The model did not provide a release to the photographer as to how her likeness may be used, it was all a very casual sort of thing, as is the case with many semi-professionals that we see on sites like this.

A year or two later an ad agency contacts the photographer about images, and the photographer brings by a portfolio of examples. They spot an image of the model and decide it would fit perfectly in an ad campaign for a website that finds casual sexual relationships for older, married men with very young women.

Now, the model's image is being used on billboards and websites nation-wide to sell something that she personally finds appalling - her image has become synonymous with this service. How is this any different than an endorsement?

Buildings and certain landscape designs are a bit different and may fall under copyright of their own. Architecture, in particular, is very complex; though landscape design probably less so and would be similar to other works of art. Unless the building is substantially associated with a company, then perhaps endorsement might play a role.


----------



## unpopular (Oct 12, 2016)

smoke665 said:


> unpopular said:
> 
> 
> > If the property was transferred outright to the ad agency, then all the liability would go with that transfer.
> ...



I would think so. But keep in mind taking a photo of the model is not the issue, it was how the image was used that was. Specifically, an ad agency does not *need* to get the model's release. The problem is that at any time the model could say "I did not agree to have my likeness used this way".

Chances are you won't ever get sued for using a model's image to promote funding for a hospice center for terminally ill puppies, no matter if a release was signed. And if damages are needed here (and I'd imagine there would be) it would be pretty hard to prove. I mean, how would endorsing such a facility harm your career or result in ridicule or harassment? 

The photographer may have had a duty to disclaim that a release was not available as this would substantially impact the value of the image, but that I don't really know (buyer beware?).


----------



## vintagesnaps (Oct 12, 2016)

I automatically own the copyright to any photographs that I take. I can register the copyright which may be useful in case of violation, but even if I don't register it, I still own the photo that I created and I own the copyright. (I'm in the US.)

If I take a picture of a bush, I can do what I want with my photograph (sell prints, license usage, etc.). If I take a picture of a person, and that person is recognizable in the photo (which could include tattoos, etc. if the face isn't in view), then I need to get a release signed to use my image of the subject's likeness. We don't know in this case what the release gave permission for the photographer to do with the image of this person. 

Usage may be retail (on Tshirts, mugs, etc.) or commercial (for advertising purposes). The reason a release is needed is that using the person's likeness is for monetary gain by the photographer and by the ad agency. We don't know in this case if the agency made sure the photographer's release covered the type usage or purpose of the ad. We don't know the terms of any contract between the photographer and the agency to know what usage was licensed.

If usage would have been for editorial purposes (in magazines, newspapers) there usually would not be a need for a release, but one may be requested by the news agency or media outlet. This is because it's news, with a purpose of informing the public.

If I was not just photographing a bush, but was photographing a house with a bush in front of it, and the house is recognizable, then I'd need to get a property release if I intended to use the photo for retail or commercial use. If I wanted to do a fine art print a release usually is not needed because the purpose is for personal use of the buyer (to hang the print on the wall).


----------



## KmH (Oct 12, 2016)

smoke665 said:


> Would this apply to other photos such as landscapes, buildings etc?


No. Landscapes and buildings don't have rights like people do.


----------



## KmH (Oct 12, 2016)

smoke665 said:


> unpopular said:
> 
> 
> > If the property was transferred outright to the ad agency, then all the liability would go with that transfer.
> ...


Maybe.
It depends on the usage.
I can sell prints of photos that have people in them as Art without explicit permission from the people in the photos, because that is an Editorial use, not a commercial use.

Regarding when the photographer retains copyright ownership but sells a publication reproduction rights, _it is the publications responsibility_ to ensure permission for using a persons likeness has been given by the person in the photo.
Which is why the judge absolved the photographer but not the publication.

A photographer does not have any control of how an image is used by a party that bought rights to the image from the photographer.

Model and property release law is state law so there are 50 somewhat different versions, while copyright is federal law and applies equally in all states.

Model/property release law is not as cut and dried as say - traffic laws, and it takes a book to explain the considerable ins and outs that apply. Fortunately, a guy named Dan Heller wrote a book:
A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things


----------



## KmH (Oct 12, 2016)

Ever wonder how dead people, like Elvis, Ansel Adams, Michael Jackson, Dorothea Lange, and Johnny Cash can continue making money?
Because of copyrights passed onto their heirs.
US copyright is good for the life of the author, + 70 years after the author dies.


----------



## orljustin (Oct 12, 2016)

Wow, I've never seen so much misunderstanding about copyright and model releases.

Simply ( in most cases ):

Photographer always holds copyright.  The right to say who can use the image in question.

The model release, signed by the model, allows use of their likeness for commercial/promotional use.

An art print is not commercial use even though money can change hands in its purchase.


----------



## robbins.photo (Oct 12, 2016)

orljustin said:


> Photographer always holds copyright.  The right to say who can use the image in question.



Not quite true.  A photographer does not always hold the copyright.  It is possible for a photographer to transfer a copyright to another person or business.  Also holding the copyright does not entitle the photographer to do whatever they want with a photo.  There are various other terms and conditions applied when a photograph contains a person who is recognizable based on how the photo is to be used, as mentioned in several previous postings.  Certain privately owned properties might also require a property release in certain instances depending on the photographs usage, again as mentioned in previous postings.



> The model release, signed by the model, allows use of their likeness for commercial/promotional use.



Sadly that is not as cut and dried as one might hope, it is very much subject to legal interpretation I'm afraid.  It depends very much on the language of the release as well.  Many standard release forms have a clause giving the photographer the right to use the photo for whatever use they wish in whatever media format they desire but there is often a exception stating that the photographer does not have such permission to use the photograph for "pornographic or defamatory" purposes.  

Since we don't know what sort of release was signed, we really have no idea if the person bringing the suit has a valid case.  However it should be noted that even if the release was a blanket release giving the photographer the right to use the photo in any manner whatsoever, it's still entirely up to the interpretation of the judge.


----------



## smoke665 (Oct 12, 2016)

robbins.photo said:


> Sadly that is not as cut and dried as one might hope, it is very much subject to legal interpretation I'm afraid. It depends very much on the language of the release as well.



In this case it was an image of someone taken several years ago that was used on a billboard promoting equal rights for same sex marriage. Because of employer restrictions on employees being involved in politically sensitive issues, the model was fired from his full time job. Can't remember the full text of the photographer's release, but it was apparently "loose" enough that the judge felt it didn't grant the photographer unlimited rights to do whatever he wanted with the image. However, the judge also said that the photographer was not liable for damage, as he hadn't put the image on the billboard, and that the plaintiff should seek action against the ad agency. 

I have to agree with you on the "cut and dried" assumption. I'm actually surprised there are any images used in ads, other than those specifically taken by the ad agency, for a specific client. Regardless of if the model has a signed a release I fear the court would rule 10 years down the road that the model couldn't anticipate the affect that release might have in the future, as circumstances of both the model and society change.


----------



## Piccell (Oct 12, 2016)

You said a question came up about this case, what was the question?
was it:


> Anyone come across this before and what limits if any are there on the use of a copyrighted image?


If it is used for educational purposes or for the purpose of open public discussion, the copyright is overridden in favor of free use.
If it is used for commercial purposes it is the responsibility of the person or company using the image to secure the rights from any party that may have a claim (including anyone in the image) to use the image the way they plan, not the photographer, unless he or she is the one actually publishing the image.
You'll notice the judge said they should try the case again with the company named as the defendant, not that they would win the case that way, but at least the correct party would be named. Then they need to prove the damages and prove the cause.


----------



## robbins.photo (Oct 12, 2016)

Piccell said:


> You said a question came up about this case, what was the question?
> was it:
> 
> 
> ...


I'm rather surprised that the plaintiffs lawyer didn't name both in the original action.

Sent from my N9518 using Tapatalk


----------



## orljustin (Oct 12, 2016)

robbins.photo said:


> orljustin said:
> 
> 
> > Photographer always holds copyright.  The right to say who can use the image in question.
> ...



Bzzz.  The photographer holds copyright. Whether he assigns or sells or whatever the copyright to someone else is after the fact.

Also, I didn't say he could do whatever he wants.  I said he controls the right to who may use the content.  Of course there are other factors, but the copyright holder is the first step.



> > The model release, signed by the model, allows use of their likeness for commercial/promotional use.
> 
> 
> 
> ...



Ffs, yes, the wording matters when it comes to particulars, but the point is the release allows commercial usage.

You're going to confuse the OP even more.


----------



## robbins.photo (Oct 13, 2016)

orljustin said:


> Bzzz.  The photographer holds copyright. Whether he assigns or sells or whatever the copyright to someone else is after the fact.



Bzz yourself.  The photographer may or may not retain authorship depending on the nature of the agreement.  



> Also, I didn't say he could do whatever he wants.  I said he controls the right to who may use the content.  Of course there are other factors, but the copyright holder is the first step.



But again your original assumption is completely incorrect.  The photographer may or may not control who can use the content in this situation.  He might have maintained authorship but my have relinquished his rights to control what the ad agency did with the photograph while maintaining authorship, or he may have given up all rights completely.  We really don't know without looking at the agreement between him and the agency.

So again, Bzzz yourself.



> Ffs, yes, the wording matters when it comes to particulars, but the point is the release allows commercial usage.
> 
> You're going to confuse the OP even more.



The release may allow commercial usage, we don't know.  We never really saw it.  Assuming it does the release is independent of both copyright and authorship, again as mentioned in previous posts.  Most such releases contain language stating that the person signing the release is not giving permission for usage in a defamatory manner, again we have no idea because we don't have a copy of the release to look at.

Sorry, but the only person who seems to be confused about how this works is yourself.


----------



## orljustin (Oct 13, 2016)

"in this situation"

I am not speaking of "this situation".  I'm talking in general.  Your overly wordy responses are analogous to someone saying "Someone bought a car, so it's theirs" and you saying "Well, not necessarily, if they decided to lease it out to someone else, or even sell it to someone else, or if they crashed it and the insurance bought it out from them."

The point, again, is that (in general), when an author creates a work, they hold copyright.  This copyright allows them to decree who may use the content.  A model release from the people in the content is needed for commercial/promotional use.

To calm robbins.photo down, yes, the author could be working for hire.  Yes, an agreement with a client could transfer the copyright to them.  Yes, any number of things could happen.  And yes, copyright allows him to control who "copies" the work.  Yes, agreements could have been made usurping that.  Yes, the actual usage would be a two step process - 1. allowing the person to use it, 2. the person ensuring they are using it properly.  Yes, a release is needed for promotional/commercial use.  Yes, releases typically have clauses about prohibiting certain uses.  They also tend to have a lot of other clauses.  So, to finish, yes, a million things could affect the situation, but IN GENERAL, it is how I described it.


----------



## robbins.photo (Oct 13, 2016)

orljustin said:


> "in this situation"
> 
> I am not speaking of "this situation".  I'm talking in general.  Your overly wordy responses are analogous to someone saying "Someone bought a car, so it's theirs" and you saying "Well, not necessarily, if they decided to lease it out to someone else, or even sell it to someone else, or if they crashed it and the insurance bought it out from them."
> 
> ...



In general people sell or transfer copyrights all the time.  Your responses replete with a lack of research or understanding of the basic concepts involved are the real problem.

The photographer does not always own the copyright.  The copyright owner does not always control a pictures usage as they may have granted that right to another.  The release is completely separate from the above and it only applies in certain situations based on usage.



Sent from my N9518 using Tapatalk


----------



## KmH (Oct 13, 2016)

When the photographer does not automatically own the copyright:
http://www.copyright.gov/circs/circ09.pdf


----------



## robbins.photo (Oct 13, 2016)

orljustin said:


> "in this situation"
> 
> I am not speaking of "this situation".  I'm talking in general.  Your overly wordy responses are analogous to someone saying "Someone bought a car, so it's theirs" and you saying "Well, not necessarily, if they decided to lease it out to someone else, or even sell it to someone else, or if they crashed it and the insurance bought it out from them."
> 
> ...



I've been nothing but calm, for the record.  You started this conversation in a rather snotty fashion proclaiming that the rest of us had no understanding of copyright, when in point of fact it's you who have demonstrated a shocking lack of understanding of the topic at hand.

You've continued to modify your statements with each posting, and have even used the time honored "rather than admit I was wrong try to pretend I wasn't talking about the situation the OP was talking about, since I'm obviously dead wrong there" dodge.

Sad, but hardly effective.  Again, you really need to do some research before you respond.  You already have enough egg on your face to get a local I-Hop through an entire breakfast service.  Maybe now would be a good time to just drop it before it gets much worse.


----------



## ClickAddict (Oct 13, 2016)

robbins.photo said:


> ......
> ..... You already have enough egg on your face to get a local I-Hop through an entire breakfast service. .....



OMG! 

Not sure if you got this from somewhere else, but I love it.


----------



## vintagesnaps (Oct 13, 2016)

I don't know for sure about copyright limit, but this thread may have reached its limit! lol Now I have a mental image of an ape going bzzzz..... and thinking about breakfast at IHOP, so maybe this topic has been covered adequately now.


----------



## robbins.photo (Oct 13, 2016)

ClickAddict said:


> robbins.photo said:
> 
> 
> > ......
> ...



Lol..nope, that's a robbins original I'm afraid.


----------



## ClickAddict (Oct 13, 2016)

The thing is when dealing with Copyright, unless the answer starts off "Depending on which state/country you live in...." you know the rest is 95% likely to be wrong.  (Or at least not right in all cases)  And that 5% I reserve for those who answer..."I don't know... check with a lawyer".  Because Laws are different from one country to another and even within the specific law there are minute differences which trigger various exceptions, some of which are black and white and others which may require a judge to determine.


----------



## robbins.photo (Oct 13, 2016)

vintagesnaps said:


> I don't know for sure about copyright limit, but this thread may have reached its limit! lol Now I have a mental image of an ape going bzzzz..... and thinking about breakfast at IHOP, so maybe this topic has been covered adequately now.



Lol.. I suspect you might be right.

Bzzzz...

Lol


----------



## KmH (Oct 14, 2016)

Here in the US, copyright law is federal law so there is just one version of it.
Since it's online anyone can read it.
I often quote or refer others to sections of it in copyright threads.

The US is a signatory to the Berne Convention (since 1886), which defines how copyright works across country borders. 
It looks like there are now 172 signatory countries.

Here in the USA, model/property law is state law, so there are 50 somewhat different versions of model/property release law here in the US.

Lawyers typically specialize in a particular area of law - divorce, contracts, taxes, copyright, etc.
So a tax/contract/divorce lawyer is probably not very familiar with copyright law.


----------



## smoke665 (Oct 14, 2016)

Correct me if I'm wrong but aren't generalized wording releases (those that don't specify a specific use or instance) somewhat like general waivers of liability where the courts have ruled you can't give a waiver when you don't know the risks?  In the example I used, the photo, taken many years ago was used in a billboard ad promoting same sex marriage. 20 years ago that type of use would most likely have been considered defamatory, but in today's society not so much. Likewise certain use 20 years ago depicting acceptable racial situations, could now be considered defamatory.


----------



## robbins.photo (Oct 14, 2016)

smoke665 said:


> Correct me if I'm wrong but aren't generalized wording releases (those that don't specify a specific use or instance) somewhat like general waivers of liability where the courts have ruled you can't give a waiver when you don't know the risks?  In the example I used, the photo, taken many years ago was used in a billboard ad promoting same sex marriage. 20 years ago that type of use would most likely have been considered defamatory, but in today's society not so much. Likewise certain use 20 years ago depicting acceptable racial situations, could now be considered defamatory.



You're not wrong, It's pretty much entirely at the whim of the judge really.    Even things that seem pretty cut and dried aren't once you get in front of the bench.


----------



## KmH (Oct 14, 2016)

smoke665 said:


> Correct me if I'm wrong but aren't generalized wording releases (those that don't specify a specific use or instance) somewhat like general waivers of liability where the courts have ruled you can't give a waiver when you don't know the risks?  In the example I used, the photo, taken many years ago was used in a billboard ad promoting same sex marriage. 20 years ago that type of use would most likely have been considered defamatory, but in today's society not so much. Likewise certain use 20 years ago depicting acceptable racial situations, could now be considered defamatory.


I'm not sure you understand that it's the publisher of an image with _recognizable_ people in it that needs a model/property release.
The photographer only needs a release _if the photographer is the publisher_, but depending on how the photograph was made the photographer may not need a release for self-publishing and self-promotion of the photographer.
It's pretty rare to need a property release.

If the photographer sells an image with people in it to a publisher, the photographer is not liable for how the publisher uses the image.
Note however, that if the photographer does have on file a valid release that covers the publisher usage - the photo has more value.

When making people photographs out in public on location, model release law is such photographers can self-publish those photos to advertise or promote their business without the explicit permission of the people in the photos. When photos of people are made in private photographer do need permission from the people in the photos.

None the less my contract had a release clause that said the client allowed _any_ commercial use of their likeness, in exchange for a discount on the cost of my services, regardless if the photos were made in private, or not.
Clients had the option of opting out of that clause. Of course if the opted out they lost the discount and had to pay full price.


----------



## smoke665 (Oct 14, 2016)

KmH said:


> I'm not sure you understand that it's the publisher of an image with _recognizable_ people in it that needs a model/property release.



My original post had to do with the limit of rights specific to a copyright, not a release. I understand the release process, and the limitations inherent when generalized language is used, as well as the language requirements to make the release transferable.


----------



## smoke665 (Oct 14, 2016)

KmH said:


> When making people photographs out in public on location, model release law is such photographers can self-publish those photos to advertise or promote their business without the explicit permission of the people in the photos.



Not necessarily true. In most states some "right of privacy" laws still exists in public places. In these cases the use of the photograph, or whether the subject is recognizable is irrelevant.  You can't take a photo of someone in a place where they have a reasonable expectation of privacy.  For example you couldn't take a photo of someone in a "public restroom". Or, if your photo taken with a telephoto lens, showed someone in their backyard sunbathing in the nude, regardless of the fact that you were in a public place at the time you took the photo.  Other things such as disclosure of private facts is off limits. IE e a street photograph that shows a couple coming out of a fertility clinic or someone entering/leaving a psychiatrist's office or a substance abuse clinic.  Also, "right of privacy" violations aren't limited to general distribution or commercial use, even a minimal sharing could be sufficient for the claim


----------



## thereyougo! (Oct 14, 2016)

KmH said:


> smoke665 said:
> 
> 
> > Would this apply to other photos such as landscapes, buildings etc?
> ...



Not necessarily so.  Last year a law in the EU was being considered on photographs needing to get releases for buildings in public places if of commercial use.  This is something that is already the case in France and elsewhere.  Want to sell a picture of the Eiffel tower lit at night?  Officially you need clearance for it.


----------



## Piccell (Oct 15, 2016)

Copyright law has enough nuances, exceptions loopholes and other gotchas that there is an entire branch of the legal profession that does nothing but research and try copyright law cases. Unless you are a lawyer you cannot comprehend the entire scope of it, and if you are a lawyer, you would most likely just say, ask an copyright attorney for a consultation on the matter at hand.


----------

