PHOTOGRAPHY AND THE LAW: PART I

by Joshua J. Kaufman

Galleries and publishers have used photographers for promotional and advertising purposes for many years, and their use in this area is growing. Additionally, the fine arts photography market is a growing segment of the industry with more galleries opening which are dedicated solely to fine arts prints or established galleries and publishers adding limited edition photography to their inventory. There are a number of important legal issues which should be understood when dealing with photographers as contractors and/or as artists in one's gallery.

Copyright in photography. The copyright in a photograph rests with the photographer. Once the photographer takes the picture, a copyright vests in the him/her for the rest of his/her life plus 50 years. If the photographer is an employee (this is in the traditional employment sense) of a company, then the copyright vests in the company as a work-for-hire for a period of 75 years.

The commissioning party (which, for our purposes, would be the artist, gallery or publisher unless specified in writing) has no copyright ownership rights in the photograph. It does not matter how much advice or input they gave the photographer in helping set up the shoot; that type of contribution does not provide any ownership rights in the copyright nor does the fact that they are paying the photographer for time and/or materials. All the commissioning party gets is a limited use license.

If the commissioned photograph is of an artwork, the photographer's copyright in the photograph does not in any way lessen the artist's copyrights in the underlying work. The artist still owns all copyrights to the painting or print, but not to the photograph. The photographer could not make the photograph of the artwork without the artist's permission, as that would violate the artist's copyright. However, the artist may not reproduce, duplicate or distribute the photograph without the photographer's permission or in a manner different from that agreed to by the parties.

For instance, if a photographer is hired to photograph a work for an invitation to an opening and the artist or publisher then decides to use the photograph as the basis for a poster, they must go back to the photographer and get permission for that additional use. If the photographer is unreasonable or seeks too great a fee for the additional use, the artist of course is free to hire a different photographer to reshoot the picture for the additional uses.

The prudent course to take is to have a written agreement outlining the various uses for the photograph that the parties have agreed to. Without it, there are bound to be misunderstandings and unnecessary litigation. Particularly if the photograph is going to be used for multiple purposes and will be the basis for creating a four-color separation. The nature and extent of the license granted by the photographer is extremely important to a publisher.

One can "buy" the copyright from the photographer. In copyright language the purchase of a copyright is done through an "assignment of copyright". Therefore, if the artist/publisher wants the unfettered use of the photograph, she should obtain an assignment from the photographer of any and all rights in the work.

Another area of caution arises if individuals are contained in the photograph. In the event that there are people who are identifiable in the picture, releases must be obtained from those individuals. It is generally the responsibility of the photographer to get the releases. However, as the person who will be using and disseminating the image, the publisher will also be held liable if a proper release was not obtained by the photographer. Therefore, it is imperative that you obtain a copy of all releases secured by the photographer; if an assignment is acquired, as part of the transaction obtain the original releases from the photographer. This is true in both fine arts photography as well as in photographs used for purposes of advertising.

There is an interesting debate in the legal community about whether or not, if one creates a fine art photograph geared toward limited edition and exhibition purposes, releases are needed, or, more importantly, if a celebrity's image is used, whether that fine arts use negates the requirement of a license from the celebrity and, if one is not obtained, whether or not the fine art use violates the celebrity's right of publicity.

There are several interesting cases in this area.

One dealt with the famous model Christie Brinkley who posed for pictures, approved the pictures, knew that they were going to be distributed, but did not provide a written release. After the posters of her image came out, she successfully sued the photographer and publisher because, under New York law, releases must be in writing.

A more recent case deals with one of the more famous photographs: the classic 1950 picture by Robert Doisneau entitled "The Kiss" in which a couple is seen kissing on a Paris street scene. Two years ago, a couple sued claiming that they were the couple captured in the picture and that no release had been obtained from them. However, it appears that models were in fact used for the picture. In an attempt to have the first case dismissed, the names of the models were revealed and now they have come forward and sued.

Recently, I have been involved with a number of cases dealing with releases being demanded for property rather than people. A number of people have made claims against clients of mine who incorporated images of buildings, antique trains, and other identifiable products in their photos and artwork. The owners of these properties sought compensation from my clients.

I do not believe that the current state of the law provides for remuneration for photographs or art renditions of property. However, these types of cases could be decided under state law and there might be a state which has a different twist in their laws which could provide for a property release. But overall, as a general rule of thumb, the incorporation of buildings or property should not require a release.

That being said, there is one exception and that is if the property clearly identifies a person and is considered an extension of the person's persona. Where this has come up is in the area of racecars, where artists and photographers have included racecars in images and then commercially exploited the images containing the racecars but have not gotten permission from the racecar's driver. If the racecar is so distinct and only a specific driver drives the car and when people seeing the car they think of the driver, permission should be obtained from the race car driver.

If your limited edition art photographs are going to contain trademarked images and logos, a fair use will probably apply, however caution should be exercised in those areas.