Today’s Draw the Law is a special one, done as a shout-out to all my photographer friends. In particular, this post is for Dallas Nagata White and her great assistant/husband Ed White and their support from the local photographer community. Thus, I will be delving into a narrow subset of contract law with IP tossed in for good measure to create a montage post of rights of publicity, copyright, model releases, and licensing agreements to help out photographers and models sort through the law so they can go back to doing their art and furthering their careers.
The Context
Who owns what in a photograph? Today's Draw the Law sorting through copyright and rights of publicity for photographers and models.
Before getting to the law, let’s set-up the context for all these concepts. It is a typical scenario: photographer is hired to do a shoot, selects a model, takes pictures, then posts or publishes those pictures. In those simple steps, without written documentation, there can arise a lot of problems. Then we get into the fight between photographer, model, and possibly third parties that use those pictures.
Copyright: The Photographer is the Author
Copyright gives the author the right to control copies. The right is immediately given when the original expression is fixed into a tangible medium, such as capturing a scene with a photograph.
Without delving too deeply into copyright law (because a) it is apart of my talks and b) I will be returning to it at a later date) understand that the photographer is the copyright holder because they authored the picture. Specifically, a copyright is given to anyone who creates “original works of authorship.” Therefore, as soon the photographer takes pictures of guys in cartoonish outfits the photographer is the copyright holder of the photographs. Copyright, is as it sounds, the right to copy. Therefore, a photographer usually assigns or licenses that right to make copies to companies who then use those images for marketing campaigns and the like.
Rights of Publicity: What about the Models?
The rights of publicity gives a person the right to control their image, especially in the context of commercial use. Thus a model can say no to using her face promoting drinking
Here comes the fun part of the situation, while the photographer is the copyright holder of the photograph the model has right to their face, likeness, even images of their body and the sound of their voice. This is known as rights of publicity; Hawaii law states that, “every individual or personality has a property right in the use of the individual’s or personality’s name, voice, signature, and likeness.” (HRS 482P) Therefore, it is typical for models to sign a model release to allow their image to be used in a manner the photographer sees fit.
Model Release vs. Licensing Agreement: Power Struggle
While both rights of publicity and copyright can be licensed, assigned, etc . . . for simplicity sake for this post I am going to separate them into model release and licensing agreement. Typically, a photographer will want to get a model to sign off on as many things as they can in a model release. The model release works by releasing the models claims to the ability to enforce their rights of publicity claim as to their image. In the case of a famous model and/or photographer, their goal is to try to limit the use of their likeness/image and/or photos by others because they can get more money. A famous actor/model will read through a model release or may even have their own agreement to force a photographer to either pay a lot for a lot of usage out of their likeness or pay minimal for say a one-time use whereas an upcoming model will probably sign away a lot of rights to a famous photographer due to the chance of becoming noticed. At the end of the day it all boils down to negotiation or sometimes going with what is the standard practice of the industry.
Third-Parties and Our Digital World: Letting the Images Out into Cyberspace
For 3rd parties that download images of people that you wish to use with marketing you want to make sure that a) you are licensed to do so by the copyright holder and b) that the person has released their image to be used in a fashion.
This last part is what we see on a daily basis on the web, but typically it is where people also get confused. So what happens now that we have the Internet, social media, and smartphones? We share images, we edit them, change them, see something we like and snap a shot of them, then share them. So let’s say that photographer takes a picture of model, and then posts the image to a sharing site. A company sees the picture and likes it, takes it, then slaps it on its merchandise to sell them. Let’s say the sharing site has a Creative Commons licensing agreement. Therefore, photographer actually licenses the right to copy to the site, which in turn gives that right to other users. Thus the copyright holder (photographer) has licensed the right (to use the photo) to third parties (the company) through the sharing site (due to Creative Commons licensing agreement). However, do you see the hang up? The model has NOT given up their rights of publicity to the company. They have every right to control their image, especially in terms of commercial use. Thus, while the company may have licensed the copyright for the photograph it has not gotten the right to use the model’s image/likeness in conjunction with its goods.
Last Words
Copyright law is federal, whereas Rights of Publicity is a state law, and not all states have Rights of Publicity on the books. Finally, you may wish to consider giving public notice of ownership of publicity rights, which you can file with the state of Hawaii’s Department of Commerce and Consumer Affairs. Chapter 482P permits an assignee or transferee of publicity rights to make a publicity rights trade name registration. For all the foregoing reasons that is why my photography and model friends you should consider documenting your agreement regarding photos.
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*Disclaimer: This post discusses general legal issues, but does not constitute legal advice in any respect. No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction. Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.
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