Can I Use the Photographs? (Part 2)
Posted: March 10, 2015 Filed under: Business Law, Intellectual Property | Tags: copyright infringement, copyright protection, photographers, photography Comments Off on Can I Use the Photographs? (Part 2)You’ve hired the photographer and have a written agreement that makes you the owner of all photographs taken. But if you think nothing could go wrong now, you may not have thought of everything. Attention must be paid to what is in the photographs themselves.
The scope of copyright extends to many two and three dimensional designs. So, if you manufacture useful products made from a fabric that has been lawfully made by, or with the permission of, the design’s creator, then you are entitled to publish photographs of those products. The key words here are “lawfully made” and “with permission”. Claims of copyright infringement in fabric designs are a growing problem. But this is not the only danger.
Outdoor urban settings, featuring graffiti, murals, or sculptures, also can produce claims. Ask Just Cavalli or the US Postal Service. Just Cavalli is confronting a suit in California by graffiti artists, who claim their work was copied on Just Cavalli’s apparel designs. And the United States Postal Service has to pay millions to the sculptor of the Korean War Memorial for using a photograph of the sculpture on a stamp. Both the graffiti and the sculpture were protected by copyright. Therefore, any use of them without permission in a photograph, including as a cool setting for your fashion, would be infringing.
Props and “set decoration” have also generated litigation. Rug and quilt patterns, crib mobiles, stuffed animals and dolls can enjoy copyright protection and their designers have brought suits when they have been used without permission in films and advertisements. So take care that the adorable baby modeling your clothes is not holding a protected toy or other prop that you didn’t create. Even items such as lamps can be protected by copyright, if they include sculptural forms which could exist independently.
Finally, while you want your photographer to be the next Richard Avedon, it is not a good idea to copy the composition of a famous photograph. That too can be copyright infringement.
Credit: Helene M. Freeman
See previous post…”Can I Use the Photographs? (Part 1)“
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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.
Can I Use the Photographs? (Part 1)
Posted: February 3, 2015 Filed under: Intellectual Property | Tags: copyright, copyright infringement, copyright protection, photographers, photography, Wal-Mart Comments Off on Can I Use the Photographs? (Part 1)
You hired the photographer to take pictures of your products, store, showroom or event. You would think that if you paid for the photographs and told the photographer what to shoot, you’d be entitled to use the images however you wanted. But you might be wrong.
Photographs are protected by copyright. Commissioning the creation of photographs and paying the photographer to take them does not give you ownership of the copyright in the photos. Under the copyright law in effect since 1978, the photographer owns the copyright in the photos. In the absence of a written agreement to the contrary, the party hiring the photographer acquires only the prints purchased and a non-exclusive right to use them for a particular purpose.
Photographers are often hired to take photographs, based on a cost estimate, without legal formality. The only writing that may change hands is the photographer’s invoice, which is duly paid, without examination of anything except the price. Pre-printed terms and conditions on the reverse side of the invoice commonly indicate the photographer retains any rights that are not expressly granted and may limit use of the photographs. If you acquire only the right to use the photographs in a catalogue, to cite just one example, you may not be able to use them in advertisements, or on your website, or on packaging, without further permission from the photographer.
And that’s not all. Not only can you not use the photos without the photographer’s consent, but also photos taken at your expense can be licensed by the photographer for use by others. Most professional photographers pursue additional income by licensing their photographic images for use in newspapers, magazines and books. Only a written assignment of copyright or exclusive rights can prevent the photographer from allowing others to use the photographs.
The consequences of not using a written contract to secure ownership of commissioned photographs can be especially severe when the relationship ends. Wal-Mart Stores and the Walton family learned this lesson when the local photographers’ studio that had photographed Wal-Mart and Walton events for over forty years closed. Their photo archives were put up for auction by the photographers’ heirs, along with the copyrights in the images. The Walton family and Wal-Mart Stores found themselves in litigation in an effort to obtain the photo archives for their museum, litigation that is still on-going.
Credit: Helene M. Freeman
See related posts:
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For a recent article by New York Times reporters Sydney Ember and Rachel Abrams on brands and their use, sometimes without permission, of consumers’ own photographs posted on social media showcasing branded items, click here.
