PHOTOGRAPHY AND THE LAW: PART II

by Joshua J. Kaufman

A few years ago, the Copyright Act was modified to include a section on moral rights which provides that certain works of art are entitled to special protection, specifically, that the artist be credited and that the works may not be intentionally destroyed, mutilated or modified without the artist's permission. Photographs that would come under these "moral rights" are limited to those which are "still photographic images produced for exhibition purposes only existing in a single copy that is signed by the photographer or in limited editions of 200 copies or fewer that are signed and consecutively numbered by the photographer". (It also applies to limited edition prints in editions of under 200.)

Therefore, if a photograph is created as a limited edition print, one may not alter, crop, modify, recolor, change the color sequence, or anything else, without the artist's permission.

If the photographer you are working with has assistants or uses a commercial darkroom to create prints, certain steps must be taken to ensure that no rights are claimed by the photographer's assistants and/or darkroom. One does not want to be placed in a position where the darkroom is claiming ownership of certain rights in the finished product as a derivative work or as a work of joint authorship. In the same fashion, one wants to make sure that any assistants who are working with the photographer do not make any claims to ownership rights in the works. Both of these matters can and should be handled with an assignment of any and all rights from the darkroom and/or assistants back to the photographer. The assignment should be in writing and should be part of every photographer's photobag, along with model releases.

A recent case of interest to those distributing photographs was the Rano v. SIPA Press case which came out of the U.S. Court of Appeals in California during the summer of 1993. The case is a disturbing case for photographers as well as for any visual artist. Many art lawyers feel that the court was wrong; however, it is currently the law in California, Oregon and the state of Washington.

The facts of the case are that in 1978 Rano, a commercial photographer, orally granted SIPA a non-exclusive license to distribute and sell his works. The license also authorized SIPA to sublicense others in the sale of the works. Royalties were to be paid. However, during the course of the oral agreement, no specific duration was set forth by the parties.

In 1987, Rano informed SIPA that he wanted to terminate their relationship and SIPA was no longer authorized to "sell anymore of his photographs." In contravention of Rano's instructions, SIPA continued to sell his photographs and Rano sued for copyright infringement. California has a law which is similar to the laws in most states that states that, if a contract is of unspecified duration, it is known as a terminable-at-will contract and can be terminated by either party at will. Certain states read good faith notice requirements or time provisions into it; however, the thrust of the law in most states is that a contract which has no definite term can be terminated at will by the parties.

The Ninth Circuit however stated that California law will not apply but that rather the federal copyright law applies. Generally, it is agreed that the copyright law applies in all 50 states and supersedes conflicting state laws which apply to the matters covered by the copyright law. When the new copyright law was put into effect, a provision to help artists was included which said that no matter how long a license is granted for, after 35 years, an artist or heirs may terminate the agreement up until the 40th year. Therefore, the copyright law provided a window of five years for artists to reclaim their copyrights. This obviously would involve only works of great significance that maintain their value after 35 years.

The court in the Ninth Circuit in California however took what was to be a pro-artist/protective shield and used it as a sword, ramming it through the hearts of artists everywhere. They held that unless there is a specific writing limiting the time period of a distribution agreement, then no artist can cancel a distribution agreement with his distributor until 35 years have run. This perverts the intent of the copyright law and creates a windfall for distributors.

Whether or not other courts across the country will accept the logic of Rano is unknown at this point in time.

Publishers and sellers of limited edition prints should also know that most of the state print disclosure laws will apply to photographs which are held out as limited editions. A review of each state's laws would be required to see if their definition includes photographs; however, most of the states in fact do. Therefore Certificates of Authenticity or any other disclosure publishers provide for fine arts prints as required by various state laws should also be included with the sale of limited edition photographs.