Privacy Rights And Copyrights; What Photographers Need To Know
The legal issues of privacy rights and copyrights in photography are usually
not covered thoroughly enough in photo schools. Many professionals don't
take the time to learn the law. This often leads to confusion and chaos when
photographers start selling their work. Whether you are part-time or full-time,
amateur or pro, one of the most important legal issues you will encounter is
the overlapping of privacy rights and copyrights.
What Is Protected?
Because I am not an attorney, I am required to tell you that I cannot give legal advice so this discussion is from an "industry custom" perspective; that is, my day-to-day experiences with these issues as a photo rep.
Let's start with some definitions. Privacy rights include the protection for an individual to control the publication of recognizable images of themselves, their minor children, and their property. Copyright protects the use of your original expression of an idea. Ideas cannot be protected, only your tangible expression of the idea. The copyright issues of intellectual property law are literally about "the right to copy" your original creation.
Privacy rights and copyrights exist together, and at the same time. This means that though you do own the copyright to your photos, the individuals you photograph own the right to their privacy. Your challenge is to be sure that their privacy rights and your copyrights don't conflict with each other and coexist in peace.
Who Owns That Face?
After January 1, 1978, the copyright law changed to "unless otherwise specified, the creator owns the copyright." In other words, the law now is that when you create an image, you own the copyright and you need do nothing else for ownership (protection and registration are separate issues). However, your ownership copyright does not trample the privacy rights of the recognizable individual(s) in your picture. Your ability to use these images depends primarily on two things: how the image will be used and if the individuals sign privacy releases.
What Is Recognizable?
The default answer is: anything could be taken to court. Case law has gone against photographers trying to hide the identity of individuals with such techniques as blurs or silhouettes. Don't take the chance. There is also the mistaken assumption that only facial features are defined as recognizable--no, again! Commercial use of the image of any part of an individual (especially models) should get released. It could be hands, feet, earlobes, or their backside--don't take the chance, get a release. I encounter many photographers coming to my workshops who have photographed--for their own portfolio--friends and family and now ask what to do. Again, get a signed release when you create the image and avoid having to go back later and try to get one.
Use The Standard Forms
One of the most important benefits of membership in professional photo associations is access to standard model releases (and perhaps even legal assistance). Often referred to as "model" releases because they are always used on commercial photo shoots when working with models, the standard privacy releases include:
· Adult Release
· Simplified Adult Release
· Minor Release
· Property Release
Since model releases are considered legal contracts they require something called "due consideration" or "good and valuable consideration" made to the person signing the release. This "consideration" is an exchange--you got their signature, now they get something. It could be money, prints, a token gift, or even a lottery ticket! Remember, minors need a parent or legal guardian to sign for them. For more information on these forms I can recommend the books Business and Legal Forms for Photographers by Tad Crawford and The Law (in Plain English) for Photographers by Leonard D. DuBoff; both are from www.allworth.com.
Commercial Vs. Editorial Use
Many photographers do both commercial and editorial photography and federal privacy rights law is different for each. Basically, getting privacy rights released to you with a model release is necessary if you plan to use the images for any "commercial" use such as websites, photo contests, annual reports, advertising, product promotion, promotional brochures, posters, greeting cards, calendars--even your own marketing--as these are all considered non-editorial use.
When a magazine or newspaper buys the use of your photos for an article you can make this sale without a model release as this is considered editorial use. This is because with the photo in any editorial you are informing and educating, and our First Amendment of the Constitution allows you this right. The attorneys at large magazine and publishing houses are continually defending this right.
Many photographers believe celebrities have no privacy rights, but that is not the case. You should have a release for commercial use of their image. Celebrities and public figures usually aggressively defend the sale of their recognizable likeness for profit, but remember, if the sale is for editorial use (and profit), then you do not need the model release.
Here's an example of when you do and do not need a model release: Say you get a photo of Brad Pitt getting on his motorcycle and you decide to print the photo on T-shirts and sell them for $10 each. His attorneys will contact you and you'll find yourself going to court with Mr. Pitt and his legal team. A model release would have been needed here, and no, he would not sign it for such a purpose (commercial use) as most celebrities guard their likenesses carefully due to their value.
On the other hand, a magazine is doing an article (editorial use) on celebrities and their motorcycles and they need a photo of a celebrity on a motorcycle. You might make a sale with your Brad Pitt photo and probably you'll never hear from the Pitt legal group. No model release is needed for editorial use.