Copyright - Are There Limits?

smoke665

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Question came up recently regarding the use of a photo of an individual in an ad. The photographer's release specifically granted him copyright to the image. The photographer sold the image to an advertising agency, who in turn used the image in an ad for their client. The person in the image sued the photographer for compensation claiming the use of the photo caused him harm. In the ruling the judge dismissed the case against the photographer, but indicated the plaintiff should seek a suit against the advertising agency. The judge's ruling indicated that a copyright does not give "exclusive and unlimited right" to use a photo in any manner without the approval of the subject in the photo. The judge cited the use of a photo in circumstances that would cause harm to the subject of the photo as an example.

Anyone come across this before and what limits if any are there on the use of a copyrighted image?
 
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He didn't get any copyright from his release. He got his copyright automatically when he took the image.

Without knowing the actual text of the release, nor the agreement between the photographer and the ad agency, nor actually how the image was used, we're really just guessing.
 
In Canada there is a law that protects an individual for certain uses of photos (Yes even when releases are signed). Uses which would imply negatively on the subject.

For instance and AD that says "Anybody you know might have Aids", or "Maybe your neighbor is abusive" etc... with focus on one individual on the photo.

A person might be totally against eating meat, but this law would not stop the from being in a marketing promotion for a Hamburger joint. It's more for issues which are considered negatively in general.

There is a clause which can be put in the release, which states the model approves of those type of ads as well. (Saw the specific line, can't recall it now) It's typically recommended not to put it in a standard release (May scare away models from signing) and to use it only if the purpose of the photo would be for potential "negative type" ads.
 
For instance and AD that says "Anybody you know might have Aids", or "Maybe your neighbor is abusive" etc... with focus on one individual on the photo.

Not the same, but similar that the model claimed caused him to lose his full time job, because of the controversial nature of the ad.
 
He didn't get any copyright from his release. He got his copyright automatically when he took the image.

True, but in this case the photographer's release stated that he owned the copyright on the photo.
 
He didn't get any copyright from his release. He got his copyright automatically when he took the image.

True, but in this case the photographer's release stated that he owned the copyright on the photo.
Which is true, but those are two different things. The release is the document signed by the subject(s) of the image granting permission to the photographer (and usually his/her assigns) permission to use that image for specified purposes. Copyright is the legal right of the photographer to that work. Copyright is what ensures that the photographer is protected; no one can use his/her work without permission, and the release ensures that the subject is protected and his/her/their image can only be used as agreed upon at the time of signing.
 
What Sparky is saying is that a release stating the photographer owns copyright is redundant. He owns it by default UNLESS he signs it away. (There are some exceptions is some countries, depending on if the photos are commissioned but in the USA/Canada the photographer typically owns them, unless contracts state otherwise) Owning copyright does not allow the photographer the use to the photos in a commercial sense (Selling to be used for advertisement for instance) . That's what a release is for.
 
I think, in the USA, it would boil down entirely to the language of the release. The release could be wide or narrow affecting the usage of the photo. A vague release would be a cause for a law suit. In support of the judge's remarks, a copyright does not give you carte blanc to do with the image as you may ... but the right release would ... or would not ... all depending on the language of the release.
 
If the property was transferred outright to the ad agency, then all the liability would go with that transfer. Furthermore, the damages incurred were created by the ad agency, not the photographer.

That said, I do not think the photographer is out of the water just yet. While the model can sue the ad agency, the ad agency may be able to sue the photographer, claiming that he sold them a product which in good faith they believed was suitable for their use. This especially so if the photographer knew that the image was intended for commercial advertising purposes, which gives the model far more rights than, say, journalism.

Though, these are two very different issues, however.
 
So if I'm reading everyone correct "copyright" establishes ownership, but doen't establish what the owner can do with the copywrited material without specific verbage on same. Would this apply to other photos such as landscapes, buildings etc?
 
So if I'm reading everyone correct "copyright" establishes ownership, but doen't establish what the owner can do with the copywrited material without specific verbage on same. Would this apply to other photos such as landscapes, buildings etc?
Exactly right.
 
If the property was transferred outright to the ad agency, then all the liability would go with that transfer.

So if there was a failure to get a proper release for the use would that become the responsibility of the new owner of the copyright?
 
So if I'm reading everyone correct "copyright" establishes ownership, but doen't establish what the owner can do with the copywrited material without specific verbage on same. Would this apply to other photos such as landscapes, buildings etc?

Discalimer - I am not an attorney. The following is intended for conjecture purposes only and is not intended to inform, educate, or be used as advice in regard to any actual circumstance. Do not get legal information from an internet photography forum!

AFAIK The issue with models and commercial usage is endorsement. We do not "own" our likeness, but we do have certain rights concerning our reputation. Let's say that a young an aspiring female model for a provocative photo set. The model did not provide a release to the photographer as to how her likeness may be used, it was all a very casual sort of thing, as is the case with many semi-professionals that we see on sites like this.

A year or two later an ad agency contacts the photographer about images, and the photographer brings by a portfolio of examples. They spot an image of the model and decide it would fit perfectly in an ad campaign for a website that finds casual sexual relationships for older, married men with very young women.

Now, the model's image is being used on billboards and websites nation-wide to sell something that she personally finds appalling - her image has become synonymous with this service. How is this any different than an endorsement?

Buildings and certain landscape designs are a bit different and may fall under copyright of their own. Architecture, in particular, is very complex; though landscape design probably less so and would be similar to other works of art. Unless the building is substantially associated with a company, then perhaps endorsement might play a role.
 
If the property was transferred outright to the ad agency, then all the liability would go with that transfer.

So if there was a failure to get a proper release for the use would that become the responsibility of the new owner of the copyright?

I would think so. But keep in mind taking a photo of the model is not the issue, it was how the image was used that was. Specifically, an ad agency does not *need* to get the model's release. The problem is that at any time the model could say "I did not agree to have my likeness used this way".

Chances are you won't ever get sued for using a model's image to promote funding for a hospice center for terminally ill puppies, no matter if a release was signed. And if damages are needed here (and I'd imagine there would be) it would be pretty hard to prove. I mean, how would endorsing such a facility harm your career or result in ridicule or harassment?

The photographer may have had a duty to disclaim that a release was not available as this would substantially impact the value of the image, but that I don't really know (buyer beware?).
 
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I automatically own the copyright to any photographs that I take. I can register the copyright which may be useful in case of violation, but even if I don't register it, I still own the photo that I created and I own the copyright. (I'm in the US.)

If I take a picture of a bush, I can do what I want with my photograph (sell prints, license usage, etc.). If I take a picture of a person, and that person is recognizable in the photo (which could include tattoos, etc. if the face isn't in view), then I need to get a release signed to use my image of the subject's likeness. We don't know in this case what the release gave permission for the photographer to do with the image of this person.

Usage may be retail (on Tshirts, mugs, etc.) or commercial (for advertising purposes). The reason a release is needed is that using the person's likeness is for monetary gain by the photographer and by the ad agency. We don't know in this case if the agency made sure the photographer's release covered the type usage or purpose of the ad. We don't know the terms of any contract between the photographer and the agency to know what usage was licensed.

If usage would have been for editorial purposes (in magazines, newspapers) there usually would not be a need for a release, but one may be requested by the news agency or media outlet. This is because it's news, with a purpose of informing the public.

If I was not just photographing a bush, but was photographing a house with a bush in front of it, and the house is recognizable, then I'd need to get a property release if I intended to use the photo for retail or commercial use. If I wanted to do a fine art print a release usually is not needed because the purpose is for personal use of the buyer (to hang the print on the wall).
 

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