Photo Attorney

Feb 23, 2006

Commercial vs. Editorial Use of Photographs of People

When photographers take photos of people, they must be careful to not "invade their privacy." See my September 14 blog for more information. After the photo is taken, however, the photographer should be concerned about the person's "rights of publicity." You violate a person's right of publicity when you take or use without permission a person's photo for your own use or benefit. Editorial use of a photo is not considered a use of the person's image for your own use or benefit. Commercial use is different. Commercial use clearly benefits the photographer, so you need the person's consent to use their image. This normally is documented by a model release. But how do you tell the difference in the uses?

Editorial use of a photograph is found in a newsworthy item. In those cases, the person's right in the use of his image must be evaluated in light of constitutional interests. "Newsworthiness" is a First Amendment, freedom of the press, interest and is broadly construed. Courts traditionally have defined public interest or newsworthiness in liberal and far reaching terms. It is not limited to dissemination of news in the sense of current events, but extends far beyond that to include all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general.

Commercial use of a photograph usually occurs when the picture of the person has been used purely for "advertising purposes." While the photograph of a person may be used for something that is sold for profit, such as in a book or a print, that is not the test for a commercial use. Instead, using a picture of a person without consent gives rise to a claim for violating the person's right of publicity only when it injures the economic interests of the person due to commercial exploitation.

In sum, if someone looking at a photograph would think that the person in it is promoting or endorsing a commercial product affiliated with the photograph, then the use is commercial. But since it sometimes is difficult to know if the use will be considered commercial or editorial, it's always a safer to get the model release.

Take my advice; get professional help.

Feb 15, 2006

Government Works Exception for Copyrights

Photographers often take pictures of statues and other artwork in national parks to sell as prints or postcards. Since those pieces often are government works, they are in the public domain and no permission is necessary to make a copy or to create a derivative work of them. But a little known provision called the "Government Works Exception" can get photographers into a lot of trouble.

Generally, copyright protection is not available for "any work of the United States Government." 17 U.S.C. Section 105. Any work that is "prepared by an officer or employee of the United States Government as a part of that person's official duties" constitutes a "work of the United States Government." 17 U.S.C. Section 101. Those works fall into the public domain.

Sometimes, however, copyrighted works are created by non-government personnel for the government, such as when the government commissions a piece of art. The artist later transfers the copyright to the government. The "government works exception" then allows the federal government to hold the copyrights for those works transferred to it by assignment.

Some have argued that the government is using this exception unfairly and as a workaround the copyright law. So far, it has been used to prevent the copying or creation of derivative works from items such as a film series on early Supreme Court cases to the Sacagawea coin.

The Vietnam Women's Memorial Foundation, Inc., ("VWMF") now is trying to use the exception as a basis to sue those who have sold photographs of the Vietnam Women's Memorial. The Memorial is a bronze sculpture created by Glenna Goodacre of Sante Fe. It resides on the grounds of the Vietnam Veterans Memorial in Washington, D.C., and depicts three women and a wounded soldier. Goodacre reportedly transferred the copyright to the sculpture to the VWMF, who is now suing various entities that allegedly sold photographs of the sculpture.

The VWMF claims copyright in the statue on its website. It would have been helpful to let photographers know the alleged copyright status of the statue (using a commonly known tool called the copyright notice) where it resides, which happens to be in a national park next to government works that are in the public domain.

How the VWMF case will shake out is hard to tell. But it's always best to determine the copyright status of a creative work before photographing it.

Take my advice; get professional help.

Feb 9, 2006

Proposed Changes in Trademark Law of Concern to Photographers

In trademark law, "famous" marks are protected against dilution as well as infringement. Infringing a trademark occurs when the use of the mark causes likelihood of confusion as to the source of the product or service. Dilution happens when a trademark is used in a manner that weakens the "distinctive quality" of the mark. But proposed changes to trademark law may make it even harder for photographers to use photos with trademarks in them.

The Trademark Dilution Revision Act of 2005 ["TDRA"] has been passed by the House and is now before the Senate Judiciary Committee. It was drafted in response to the Supreme Court decision in Moseley v. V Secret Catalogue, Inc., 123 S. Ct. 1115 (2003), which required proof of actual dilution for an injunction to prevent someone else from using the trademark.

Dilution claims are made when the use of the mark causes:

- "Blurring," where the connection in the consumers' minds between the trademark owner's mark and the trademark owner's product or service is weakened; or
- "Tarnishment," when the use of the mark is unsavory or unwholesome or when the mark is used in connection with inferior products.

Dilution claims are available only for famous marks. Courts look at many factors to determine whether a mark is famous. These include:

(A) the degree of inherent or acquired distinctiveness of the mark;
(B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used;
(C) the duration and extent of advertising and publicity of the mark;
(D) the geographical extent of the trading area in which the mark is used;
(E) the channels of trade for the goods or services with which the mark is used;
(F) the degree of recognition of the mark in the trading areas and channels of trade used by the marks' owner and the person against whom the injunction is sought;
(G) the nature and extent of use of the same or similar marks by third parties; and
(H) whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register.

As in copyright law, trademark law [also known as the "Lanham Act"] includes exceptions for certain trademark uses. They currently include:

1. Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark;
2. Noncommercial use of a mark; and
3. All forms of news reporting and news commentary.

The TDRA proposes a revision to number 2 of these exceptions. It states:

2. Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

Note that the "non-commercial use" exemption has been removed. The TDRA proposes other revisions of concern to photographers: it allows an injunction with only a showing a likelihood of (rather than actual) dilution. It also allows a trademark holder to sue anyone who intended to trade on the recognition or reputation of a famous mark.

Let your senators know that you oppose this legislation. Go to to contact your Senators. A decision is expected soon, so act quickly.

See the full text of the TDRA HERE.