Photo Rights Explained in Black and White

SEMA News—December 2015


By Ashley Ailsworth

Photo Rights Explained in Black and White

  Photo Rights
Copyright protection is automatic upon creation of the work. Registration at the Copyright Office may be voluntarily undertaken at any time, but it is required to enforce against infringers.

Nearly every company’s marketing arm produces or purchases photographs and video to advertise its products or services. While obtaining photos and video has become relatively easy in today’s digitized world, making sure you have the rights to use and publish this media is crucial. This article runs through some important considerations for your company’s use of photographs and video. For simplicity’s sake, the text mentions only “photos” and “photographers,” but the information is also applicable to video and videographers.

Obtaining Copyrights in Photos

U.S. copyright law typically recognizes photographers’ copyright in the photos they capture. If the photographer is an employee of a company and the photos are taken in the course of employment, then the company owns the copyright. If an independent contractor captures the shots, a contract between the company and photographer will dictate ownership and usually grants ownership rights to the company as a “work made for hire.”

It is important to put the independent contractor agreement in writing, because a court will look to the agreement to determine whether the creator or the employer owns the copyright. The law surrounding works made for hire is nuanced, so it is best to also include in the agreement that the photographer must assign all rights to works created under the agreement and require that he undertake any additional steps necessary to transfer final ownership to the company.

When a contract is not in place in advance of the photos being taken (such as when purchasing from a freelance photographer), a license agreement or assignment of rights can be used to secure rights, including the right to use the photos. The contract should provide the company with the right to use the photos (license) or assign the copyright in the works over to the company (assignment). This agreement should also require the freelancer to undertake any additional steps necessary for the company to perfect ownership.

License agreements must specify the types of uses permitted, the length of time such uses can be made, and whether the license is exclusive to one company or nonexclusive so that others may have the right to use the same photos. Since drafting a license agreement or assignment of rights is technical, it is recommended that you seek the assistance of an attorney. Your lawyer will take into account your specific situation to determine the language needed in your contracts.

Remember, copyright protection is automatic upon creation of the work. Registration at the Copyright Office may be voluntarily undertaken at any time, but it is required to enforce against infringers. Copyright protection can be made known to the general public by placing the © symbol on the work, along with the owner’s name and the year it was first published. The © symbol, owner name and year of publication provide notice and prevent infringers from claiming that they did not know the work was copyright protected.

Dealing With Privacy Rights

Numerous state statutes and the common law protect the privacy rights of individuals, allowing them to control how their images are used. While traditional First Amendment rights shield news organizations from liability when reporting the news, commercial speech is entitled to less protection. For that reason, a newspaper is usually able to publish photos of a person’s image without permission if the photos are “newsworthy”—a term that encompasses not only traditional news items such as politics and public affairs but entertainment news as well. It is most often a question of whether the images display something in which the public has a legitimate interest and whether the images were captured at a public or private event.

Commercial entities and private organizations using photos for advertising, on the other hand, must get permission.

If a company wants to use a photo of an individual in advertising, the company must get that individual’s permission. “Misappropriation of name or likeness” claims may be brought for unauthorized use of another’s name, voice, signature, photograph or likeness. Consent is a total defense to these types of claims. Some courts will recognize verbal consent or implied consent based on the circumstances, but it’s best to get it in writing.

A signed writing giving consent can help get a case thrown out of court without an expensive trial and discourage meritless lawsuits altogether. Photo release forms are commonly used to obtain an individual’s consent to the commercial use of his or her image. Even if the use is mostly noncommercial, releases clarify that the individual has affirmatively consented to the use. Under these circumstances, no legal action claiming unauthorized use should be entertained by a court.

These claims sometimes turn on an individual being “readily identifiable.” In other words, whether someone viewing the image with the naked eye could reasonably determine that the person depicted in the image is the same person complaining of its use. As an alternative to obtaining consent from photo subjects, facial blurring and distortion technology may be used after filming at an event to prevent individuals from being “readily identifiable.”

Working With Celebrities

In addition to the ability to prevent misappropriation of name and likeness, famous individuals have a right of publicity. If a company usurps this right of publicity for commercial advantage, it can be held liable for violating the famous individual’s right of publicity. The right of publicity is treated as a property right. As such, it can be assigned and inherited. Because of this treatment, even use of a dead celebrity’s name or likeness requires the permission of, and likely payment to, the celebrity’s heir or assignee. Property rights should be conveyed in writing, making it important to ink a contract before using a celebrity, alive or dead, in any ad.

U.S. trademark law also provides famous individuals with a related cause of action in federal court if there is an unauthorized use of their names or likenesses in an endorsement. These endorsement claims are successful when there has been a false or misleading representation of fact that is likely to deceive consumers as to association, sponsorship or approval of goods
or services.

Courts have held that it is false or misleading to use a celebrity in an ad in which that celebrity has not consented to appear, because the ad is capable of causing confusion as to the celebrity’s affiliation with the company. For this reason, it is critical to obtain prior written consent from hot-rod builders, race-car drivers and other automotive personalities prior to using them in a company ad campaign.

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