Photo Attorney

Jul 28, 2005

The Model Release Passes Muster

Photographers often follow certain legal practices to protect themselves, but cannot be sure that they will work when challenged. One such example is using a model release to obtain a model's permission to use photographs taken of him or her in specific ways. The good news is that the standard model release was recently put to the test, and it passed with flying colors.

In 2002, Russian tennis player, Anastasia Myskina, who then was 20 years old, posed for photographs by Mark Seliger. Seliger first photographed Myskina for the Gentleman's Quarterly's 2002 "Sports" issue and then photographed her topless. Myskina had signed a model release that said she consented to the use of her name and the pictures by the magazine and by "others it may authorize, for editorial purposes."

After winning the French Open in 2004, a Russian newspaper published the topless photos. Myskina filed an $8 million lawsuit against the publisher, Conde Nast Publications Inc., Gentleman's Quarterly and Seliger alleging emotional distress and economic injury.

The New York judge who presided over the case held that Myskina's rights were not violated despite her insistence that she did not understand the signed model release and was not fluent in English at the time. Instead, the Judge stated that, "absent allegations of fraud, duress or some other wrongdoing, Myskina's claimed misunderstanding of the release's terms does not excuse her from being bound on the contract. Nor can she avoid her obligations under the release because of her purported failure to read its contents."

Even though the photographer allegedly told Myskina that the topless photos were for "himself," the Judge found that the oral agreement contradicted the plain language of the written agreement and was not admissible. The Judge then dismissed the case.

As a photographer, it is important to protect yourself as much as possible. Fortunately, the model release is one way that has been proven to be effective.

Take my advice; get professional help.

Jul 25, 2005

Safeguards for Collective Works

Photographers often submit photos to publishers for inclusion in a book or magazine. But what happens to the copyright for that photo? Does it transfer to the publisher? What is the publisher allowed to do with the copyright?

Unless the copyright to a photo is specifically transferred in total to a publisher, the publisher's use of that photo is limited by the usage agreement. The publisher, however, creates a new copyright, called a "collective work," when your photo is combined with other photos, text, illustrations, etc. Your photo then is covered by two copyrights - one for the photo itself, and the other as part of a collective work.

As the owner of the copyright to a collective work, the publisher may reproduce and distribute your contribution as part of that particular collective work, but not as a separate item. The publisher also may distribute any "revision" of that collective work and any later collective work in the same series. "Revision" also is thought to be a new "version," which still is considered to be one work.

Revision became an issue with some photographers who had contributed work for National Geographic magazine. There, National Geographic distributed via CDs previously published magazine issues almost exactly as they appeared in print, except that National Geographic added a search engine and index. The photographers argued it was a new use of their images and wanted to be paid for it. National Geographic argued that the CDs were a revision of the collective work (the magazines) so that the usage was included in the initial grant. Because the photographers were located in different parts of the United States, they filed their lawsuits in separate courts and both cases were appealed. While the reasons why aren't covered here, in sum, the 2nd and 11th Circuit Court of Appeals came to different conclusions about whether the CDs were a revision or a new product. This inconsistency in the law will have to be resolved later.

While hindsight is 20-20, we can learn from this experience that the best way to protect your copyrights is to be as specific as possible when granting usage rights. If you don't want your photos used for certain purposes, say so. But if your agreement doesn't address a usage, a court that might not agree with your position just may be the one that determines your rights.

Take my advice; get professional help.

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Jul 12, 2005

Protection for Your Derivative Works

Here's the issue: you photograph a car for the manufacturer in 2004 and register the photo with U.S. Copyright Office. In 2005, the car maker produces the same car except with a different style of wheels. The client asks you to shoot only the new wheels and add them to the original photo using Photoshop. The new photo then will be distributed. Do you need to register the new photograph to obtain full statutory copyright protection? You do if it would qualify as a derivative work.

As the owner of a copyright, you have complete and exclusive control to do a variety of things to your photograph, including the right to prepare derivative works based on the original image. But when you alter a work, it's a judgment call as to whether it constitutes a derivative work or is only a minor variation of the original work.

A derivative work is one that is based on one or more earlier works. Derivative works include editorial revisions, annotations or other modifications. A derivative work must be different enough from the original to be regarded a new work - in other words, it must contain some substantial, not merely trivial, originality. Making minor changes or additions of little substance to a preexisting work will not make it a new version for copyright purposes.

One of the tests to decide whether the new work is a derivative work is whether the new material is original and copyrightable in itself. Note that, for reasons not covered here, the standard of originality is higher for derivative works than it is for those not based on preexisting works.

If your photo meets the definition of a derivative work, it must be registered for full statutory protection. If the photo only is slightly modified and does not qualify as a derivative work, then the original registration covers the work.

In the case cited above, since the photograph of the wheels may be considered original and copyrightable itself, adding it to the original photograph probably makes it a new work. For the most protection, registering the new work is the safest bet.

Take my advice; get professional help.

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Jul 6, 2005

Protecting Your Leased or Consigned Photographs

Photographers often lease artwork to businesses or sell photos on consignment. But if the business or gallery goes bankrupt, your photos may become part of the bankruptcy estate. The creditors of the business or gallery then may seize your work without further obligation to you.

Some states have enacted laws to protect photographers in these specific instances. For example, the Uniform Commercial Code ["UCC"] has been enacted in some form in every state. Check with your local attorney to determine whether your state has adopted the specific UCC provisions that will protect your consigned goods from being seized.

Other states have passed laws purposely to protect consigned goods. Many of them require the consignment agreement to be in writing. Following are some necessary and other helpful items to include in the agreement:

  • who is responsible for damage to the photographs
  • prices to charge for the photographs
  • specific list and description of the photographs being consigned
  • the gallery's fees and responsibilities
  • the requirement that the gallery post a sign that the goods are consigned
It may also help to include a clause in the consignment contract that states: "If any lien, attachment or bankruptcy petition is placed against the Gallery, this Agreement shall terminate immediately and the Gallery will return all of the Photographer's works to the Photographer." If the gallery files bankruptcy or becomes insolvent, get a lawyer to help you protect your property.

Take my advice; get professional help.

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