Copyright - Are There Limits?

[KmH]

Would this apply to other photos such as landscapes, buildings etc?

No. Landscapes and buildings don't have rights like people do.

 

[KmH]

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?

Maybe.
It depends on the usage.
I can sell prints of photos that have people in them as Art without explicit permission from the people in the photos, because that is an Editorial use, not a commercial use.

Regarding when the photographer retains copyright ownership but sells a publication reproduction rights, it is the publications responsibility to ensure permission for using a persons likeness has been given by the person in the photo.
Which is why the judge absolved the photographer but not the publication.

A photographer does not have any control of how an image is used by a party that bought rights to the image from the photographer.

Model and property release law is state law so there are 50 somewhat different versions, while copyright is federal law and applies equally in all states.

Model/property release law is not as cut and dried as say - traffic laws, and it takes a book to explain the considerable ins and outs that apply. Fortunately, a guy named Dan Heller wrote a book:
A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things

 

[KmH]

Ever wonder how dead people, like Elvis, Ansel Adams, Michael Jackson, Dorothea Lange, and Johnny Cash can continue making money?
Because of copyrights passed onto their heirs.
US copyright is good for the life of the author, + 70 years after the author dies.

 

[orljustin]

Wow, I've never seen so much misunderstanding about copyright and model releases.

Simply ( in most cases ):

Photographer always holds copyright. The right to say who can use the image in question.

The model release, signed by the model, allows use of their likeness for commercial/promotional use.

An art print is not commercial use even though money can change hands in its purchase.

 

[robbins.photo]

Photographer always holds copyright. The right to say who can use the image in question.

Not quite true. A photographer does not always hold the copyright. It is possible for a photographer to transfer a copyright to another person or business. Also holding the copyright does not entitle the photographer to do whatever they want with a photo. There are various other terms and conditions applied when a photograph contains a person who is recognizable based on how the photo is to be used, as mentioned in several previous postings. Certain privately owned properties might also require a property release in certain instances depending on the photographs usage, again as mentioned in previous postings.

The model release, signed by the model, allows use of their likeness for commercial/promotional use.

Sadly that is not as cut and dried as one might hope, it is very much subject to legal interpretation I'm afraid. It depends very much on the language of the release as well. Many standard release forms have a clause giving the photographer the right to use the photo for whatever use they wish in whatever media format they desire but there is often a exception stating that the photographer does not have such permission to use the photograph for "pornographic or defamatory" purposes.

Since we don't know what sort of release was signed, we really have no idea if the person bringing the suit has a valid case. However it should be noted that even if the release was a blanket release giving the photographer the right to use the photo in any manner whatsoever, it's still entirely up to the interpretation of the judge.

 

[smoke665]

Sadly that is not as cut and dried as one might hope, it is very much subject to legal interpretation I'm afraid. It depends very much on the language of the release as well.

In this case it was an image of someone taken several years ago that was used on a billboard promoting equal rights for same sex marriage. Because of employer restrictions on employees being involved in politically sensitive issues, the model was fired from his full time job. Can't remember the full text of the photographer's release, but it was apparently "loose" enough that the judge felt it didn't grant the photographer unlimited rights to do whatever he wanted with the image. However, the judge also said that the photographer was not liable for damage, as he hadn't put the image on the billboard, and that the plaintiff should seek action against the ad agency.

I have to agree with you on the "cut and dried" assumption. I'm actually surprised there are any images used in ads, other than those specifically taken by the ad agency, for a specific client. Regardless of if the model has a signed a release I fear the court would rule 10 years down the road that the model couldn't anticipate the affect that release might have in the future, as circumstances of both the model and society change.

 

[Piccell]

You said a question came up about this case, what was the question?
was it:

Anyone come across this before and what limits if any are there on the use of a copyrighted image?

If it is used for educational purposes or for the purpose of open public discussion, the copyright is overridden in favor of free use.
If it is used for commercial purposes it is the responsibility of the person or company using the image to secure the rights from any party that may have a claim (including anyone in the image) to use the image the way they plan, not the photographer, unless he or she is the one actually publishing the image.
You'll notice the judge said they should try the case again with the company named as the defendant, not that they would win the case that way, but at least the correct party would be named. Then they need to prove the damages and prove the cause.

 

[robbins.photo]

You said a question came up about this case, what was the question?
was it:

Anyone come across this before and what limits if any are there on the use of a copyrighted image?

If it is used for educational purposes or foe the purpose of open public discussion, the copyright is overridden in favor of free use.
If it is used for commercial purposes it is the responsibility of the person or company using the image to secure the rights from any party that may have a claim (including anyone in the image) to use the image the way they plan, not the photographer, unless he or she is the one actually publishing the image.
You'll notice the judge said they should try the case again with the company named as the defendant, not that they would win the case that way, but at least the correct party would be named. Then they need to prove the damages and prove the cause.

I'm rather surprised that the plaintiffs lawyer didn't name both in the original action.

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[orljustin]

Photographer always holds copyright. The right to say who can use the image in question.

Not quite true. A photographer does not always hold the copyright. It is possible for a photographer to transfer a copyright to another person or business. Also holding the copyright does not entitle the photographer to do whatever they want with a photo. There are various other terms and conditions applied when a photograph contains a person who is recognizable based on how the photo is to be used, as mentioned in several previous postings. Certain privately owned properties might also require a property release in certain instances depending on the photographs usage, again as mentioned in previous postings.

Bzzz. The photographer holds copyright. Whether he assigns or sells or whatever the copyright to someone else is after the fact.

Also, I didn't say he could do whatever he wants. I said he controls the right to who may use the content. Of course there are other factors, but the copyright holder is the first step.

The model release, signed by the model, allows use of their likeness for commercial/promotional use.

Sadly that is not as cut and dried as one might hope, it is very much subject to legal interpretation I'm afraid. It depends very much on the language of the release as well. Many standard release forms have a clause giving the photographer the right to use the photo for whatever use they wish in whatever media format they desire but there is often a exception stating that the photographer does not have such permission to use the photograph for "pornographic or defamatory" purposes.

Since we don't know what sort of release was signed, we really have no idea if the person bringing the suit has a valid case. However it should be noted that even if the release was a blanket release giving the photographer the right to use the photo in any manner whatsoever, it's still entirely up to the interpretation of the judge.

Ffs, yes, the wording matters when it comes to particulars, but the point is the release allows commercial usage.

You're going to confuse the OP even more.

 

[robbins.photo]

Bzzz. The photographer holds copyright. Whether he assigns or sells or whatever the copyright to someone else is after the fact.

Bzz yourself. The photographer may or may not retain authorship depending on the nature of the agreement.

Also, I didn't say he could do whatever he wants. I said he controls the right to who may use the content. Of course there are other factors, but the copyright holder is the first step.

But again your original assumption is completely incorrect. The photographer may or may not control who can use the content in this situation. He might have maintained authorship but my have relinquished his rights to control what the ad agency did with the photograph while maintaining authorship, or he may have given up all rights completely. We really don't know without looking at the agreement between him and the agency.

So again, Bzzz yourself.

Ffs, yes, the wording matters when it comes to particulars, but the point is the release allows commercial usage.

You're going to confuse the OP even more.

The release may allow commercial usage, we don't know. We never really saw it. Assuming it does the release is independent of both copyright and authorship, again as mentioned in previous posts. Most such releases contain language stating that the person signing the release is not giving permission for usage in a defamatory manner, again we have no idea because we don't have a copy of the release to look at.

Sorry, but the only person who seems to be confused about how this works is yourself.

 

[orljustin]

"in this situation"

I am not speaking of "this situation". I'm talking in general. Your overly wordy responses are analogous to someone saying "Someone bought a car, so it's theirs" and you saying "Well, not necessarily, if they decided to lease it out to someone else, or even sell it to someone else, or if they crashed it and the insurance bought it out from them."

The point, again, is that (in general), when an author creates a work, they hold copyright. This copyright allows them to decree who may use the content. A model release from the people in the content is needed for commercial/promotional use.

To calm robbins.photo down, yes, the author could be working for hire. Yes, an agreement with a client could transfer the copyright to them. Yes, any number of things could happen. And yes, copyright allows him to control who "copies" the work. Yes, agreements could have been made usurping that. Yes, the actual usage would be a two step process - 1. allowing the person to use it, 2. the person ensuring they are using it properly. Yes, a release is needed for promotional/commercial use. Yes, releases typically have clauses about prohibiting certain uses. They also tend to have a lot of other clauses. So, to finish, yes, a million things could affect the situation, but IN GENERAL, it is how I described it.

 

[robbins.photo]

"in this situation"

I am not speaking of "this situation". I'm talking in general. Your overly wordy responses are analogous to someone saying "Someone bought a car, so it's theirs" and you saying "Well, not necessarily, if they decided to lease it out to someone else, or even sell it to someone else, or if they crashed it and the insurance bought it out from them."

The point, again, is that (in general), when an author creates a work, they hold copyright. This copyright allows them to decree who may use the content. A model release from the people in the content is needed for commercial/promotional use.

To calm robbins.photo down, yes, the author could be working for hire. Yes, an agreement with a client could transfer the copyright to them. Yes, any number of things could happen. And yes, copyright allows him to control who "copies" the work. Yes, agreements could have been made usurping that. Yes, the actual usage would be a two step process - 1. allowing the person to use it, 2. the person ensuring they are using it properly. Yes, a release is needed for promotional/commercial use. Yes, releases typically have clauses about prohibiting certain uses. They also tend to have a lot of other clauses. So, to finish, yes, a million things could affect the situation, but IN GENERAL, it is how I described it.

In general people sell or transfer copyrights all the time. Your responses replete with a lack of research or understanding of the basic concepts involved are the real problem.

The photographer does not always own the copyright. The copyright owner does not always control a pictures usage as they may have granted that right to another. The release is completely separate from the above and it only applies in certain situations based on usage.



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[KmH]

When the photographer does not automatically own the copyright:
http://www.copyright.gov/circs/circ09.pdf

 

[robbins.photo]

"in this situation"

I am not speaking of "this situation". I'm talking in general. Your overly wordy responses are analogous to someone saying "Someone bought a car, so it's theirs" and you saying "Well, not necessarily, if they decided to lease it out to someone else, or even sell it to someone else, or if they crashed it and the insurance bought it out from them."

The point, again, is that (in general), when an author creates a work, they hold copyright. This copyright allows them to decree who may use the content. A model release from the people in the content is needed for commercial/promotional use.

To calm robbins.photo down, yes, the author could be working for hire. Yes, an agreement with a client could transfer the copyright to them. Yes, any number of things could happen. And yes, copyright allows him to control who "copies" the work. Yes, agreements could have been made usurping that. Yes, the actual usage would be a two step process - 1. allowing the person to use it, 2. the person ensuring they are using it properly. Yes, a release is needed for promotional/commercial use. Yes, releases typically have clauses about prohibiting certain uses. They also tend to have a lot of other clauses. So, to finish, yes, a million things could affect the situation, but IN GENERAL, it is how I described it.

I've been nothing but calm, for the record. You started this conversation in a rather snotty fashion proclaiming that the rest of us had no understanding of copyright, when in point of fact it's you who have demonstrated a shocking lack of understanding of the topic at hand.

You've continued to modify your statements with each posting, and have even used the time honored "rather than admit I was wrong try to pretend I wasn't talking about the situation the OP was talking about, since I'm obviously dead wrong there" dodge.

Sad, but hardly effective. Again, you really need to do some research before you respond. You already have enough egg on your face to get a local I-Hop through an entire breakfast service. Maybe now would be a good time to just drop it before it gets much worse.

 

[ClickAddict]

......
..... You already have enough egg on your face to get a local I-Hop through an entire breakfast service. .....

OMG!

Not sure if you got this from somewhere else, but I love it.