CHAPTER 11

Copyright, Trademarks, and Model Releases

Meeting the legal requirements of the microstocks is sometimes difficult and frustrating. In this chapter, I want briefly to consider the practicalities of compliance with what is, for shorthand, often referred to as “copyright issues,” with model releases, and also with some more general but related legal issues.

First up, though, a warning: this chapter contains general guidance only and is based on English law; it is not a substitute for proper and specific legal advice, nor is it a definitive or complete statement of the law. The law applicable to you will vary depending upon where you live or where the photograph was taken. There are also a wide range of complex rules that may apply to certain sectors, such as fair dealing and fair use defenses in the United Kingdom and United States, respectively, that fall outside the scope of this book. Always check the position and your particular circumstances with a lawyer in your own jurisdiction and also consider the specific requirements of the microstock sites to which you contribute.

COPYRIGHT

Copyright is an unregistered right in the expression of an idea, such as a photograph or painting, that comes in to effect as soon as a work is created. With photography, the moment you press the shutter release and take a photograph, copyright in that photograph subsists without the need to register anything.

While photographers usually own the copyright in any photograph they take, there are exceptions:

• If the photograph is taken in the course of employment, then the employer usually owns the copyright.
• A contract under which the photo was taken may assign copyright to someone else. Even if it does not, and you own the copyright, in English law, the commissioner of the photograph has a moral right not to have copies issued to the public. Check your contracts!

To be protected by copyright, the work should be “original,” but in English law, this is an easy test to pass. It is the expression of a creative idea that is protected, not the idea for the photograph itself. Some work, labor, or skill should be employed. US law is similar to English law but not identical, looking more toward a creativity test.

REGISTRATION

Although you don't have to register your work to own the copyright for it, it is often possible to register, and registration confers benefits in the the United States and elsewhere. In the United Kingdom, there are voluntary registration services designed simply to provide evidence of your ownership of copyright. At the very least, registration makes it easier to establish your rights should there be a later infringement. Recent proposed changes in US law that would make it easy for orphaned works—those for which the owner of the copyright in the work cannot be traced—to be used without infringing on copyright could make registration almost mandatory. The proposal is a disaster waiting to happen for photographers in its present form. The problem is that most photographs do not identify the creator, and if they do, the attribution is easily stripped out.

Fortunately, images you submit to microstock libraries will only be sold by them with a proper copyright warning, and you will (unless you decide otherwise) retain copyright of your photographs. The library's contract with the buyer will contain a long list of terms and conditions and should make it crystal clear that however broad the rights being sold may appear to be, there are limits, and transfer of copyright is one of them (unless you agree otherwise, of course).

There is another problem, though, with the microstocks and copyright, and it has little to do with your copyright in the photographs.

INFRINGING OTHERS' RIGHTS

Immediately you will appreciate an obvious problem for the microstock sites—they accept submissions from just about anywhere in the world, and they therefore have to impose standard rules of general applicability, based on a “lowest common denominator” approach. This means they don't take any unnecessary chances! If any image you submit to a microstock library infringes third-party copyright, then it will be rejected—either completely or with a request that you remove the infringement and resubmit.

Copyright is aimed at protecting rights in original works. There is considerable debate over how truly original a photograph is, and this has led to a divergence in approach to copyright protection for photography in different jurisdictions. In England, section 1(1)(a) of the Copyright Designs and Patents Act 1988 (the Act) affords protection to “artistic works,” and section 4 of the Act defines “artistic works” as “a graphic work, photograph, sculpture or collage, irrespective of artistic quality.” No doubt those last four words are essential if some of my photographs are to receive protection!

Section 4(1) (2) of the act defines “photograph” in a way that does cover film and digital capture. There are a range of other conditions that might apply, but they need not concern us here.

But if your photograph is protected, so are the rights of people such as architects, painters, etchers, lithographers, and others. Thus, painting or drawing is protected by the definition of graphic work in section 4(2) of the Act, and section 4(1)(b) expressly protects works of architecture. If you take a picture of a building that was built to a copyright design or of a painting someone else produced, who owns the copyright (Figure 11.1)—the architect, the painter, or you, the photographer? This is often at the center of many microstock-rejection issues.

Everyday you probably see pictures of all kinds of copyright logos and designs in your morning newspaper and magazines, on the TV and the Internet, and so on. Most legal systems, and certainly English and US law, recognize that life would be impossible for photographers if any representation of a copyright work constituted an infringement of that copyright. The incidental inclusion of copyright material is therefore not normally an infringement of copyright. If you take a picture of someone and behind that person, hanging on the wall, there is a copyrighted painting or picture of secondary importance, then there would not be an infringement of the copyright of the artist or other owner of the copyright in the painting.

If you were to go outside and take a picture of an artistic work or building subject to a copyright design, the incidental-only restriction is enhanced by the far greater protection afforded to photographers by section 62 of the act, which provides the following:

Representation of certain artistic works on public display

(1)This section applies to—

(a)buildings, and

(b)sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public

FIGURE 11.1 Who owns the copyright to this photograph? © Douglas Freer

2 The copyright in such a work is not infringed by—

(a) making a graphic work representing it,

(b) making a photograph or film of it, or

(c) broadcasting or including in a cable programme service a visual image of it.

(3) Nor is the copyright infringed by the issue to the public of copies, or the broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of this section, not an infringement of the copyright.

Often, images of famous modern buildings in, say, London are rejected for copyright infringement where no such infringement exists. It is too easy, in my view, for the owners or representatives of famous landmarks to frighten library owners off using such images, even though their complaints are usually groundless. The position would be very different if you took a photograph of copyrighted plans of the building. The plans would usually be protected by copyright but not the building, sculpture, or monument being photographed if permanently situated in a public place or in premises open to the public.

PRIVACY

A few words about privacy are worth mentioning. There may in some circumstances be a reasonable expectation of privacy attaching to individuals and particularly to children. In a recent English law case involving the child of the renowned author JK Rowling, it was held that this did not extend to covert pictures taken of Ms. Rowling's children while being pushed in a stroller down a street. The decision (which may yet be appealed) appears to conflict with an earlier decision of a different court. Countries other than England have taken a stricter view. This is unlikely to be an issue for most microstock photographers—but be aware of it nonetheless.

TRADEMARKS

A trademark is a sign that is capable of distinguishing the source of goods or services of one business from those of another. In England, including a trademark symbol or trademarked design within a photograph does not infringe on the rights of the trademark owner unless very specific criteria are met. The purpose behind trademarks is to identify the origin of goods or services, and most photographs of trademarked objects are unlikely to cause any confusion.

Imagine you take a photograph of a city center. In that photograph, there are likely various copyright and trademark designs and logos—on restaurants, stores, and businesses. If it is a general scene of the city center, there is no reason in English law to remove those logos and designs. But, with the exception of a library like Shutterstock, where such images might pass muster for editorial use, no microstocks will touch them.

The reason for the microstock sensitivity, beyond legal requirements, involves the way in which royalty-free images can be used for a very wide range of purposes, including advertising and design, that might imply approval or endorsement by the owners of the particular trademarks or copyright designs. No library wants to “buy litigation,” so by applying the lowest common denominator test, the microstocks take the safest option and exclude anything that might involve some risk. In my view, there is no reason in English law why Figure 11.1 should not be sold by a microstock library, because I own the copyright to that image by statute. I can and will sell images like it on a rights-managed basis through nonmicro-stock libraries without a problem. But for the microstocks, it falls in to a gray area, and they would probably reject it for “copyright infringement.”

I have a lot of appreciation for the great care taken by the microstocks. It is too easy to engage in knee-jerk criticism of their oversensitivity to copyright and trademark issues. But you have to see the issue from their end of the telescope. And once you are in the routine of avoiding the problem or dealing with it in postproduction, then all becomes sweetness and light.

THE PRACTICALITIES

To prevent rejection for copyright or trademark “infringement,” follow these steps:

• Remove from your images all corporate logos, marks, names, etc., using the same techniques we discussed in Chapter 5.
• Make sure your images of individual buildings do not expressly identify them unless they are public buildings, such as the Houses of Parliament.
• Remember that including so-called copyrighted buildings (as in Figure 11.1) is usually fine if the building is a small and incidental part of the overall image (see Figure 3.13). Otherwise, you will fall foul of the microstock copyright/trademark restrictions, regardless of how hard you might try to persuade them that they are wrong (and I have tried).
• Check the libraries for their own guidance and lists of prohibited material, for example, iStockphoto's comprehensive Technical Wiki at .

For more reading on copyright and trademark law, I recommend Christina Michalos's book The Law of Photography and Digital Images, published by Sweet & Maxwell in the United Kingdom; the US Copyright Office site at http://www.copyright.gov; and the UK Copyright Service site at http://www.copyrightservice.co.uk/protect/p16_photography_copyright. In addition, there are many discussions about photographers' rights on various Internet forums.

I live in hope that some of the more outlandish ideas about copyright end up being modified over time. It must be in the interests of the microstocks themselves to sell a wider range of work and not succumb to every claim of copyright or trademark infringement thrown at them. One option is for more libraries to follow Shutterstock's lead and to accept images for editorial use only. That will, however, require the libraries to undertake more research and to employ lawyers to advise them, at least for the major jurisdictions. The whole subject of copyright law is very complicated—and I repeat the warning I gave at the beginning of this chapter to carefully check the up-to-date position in your own jurisdiction and with the libraries themselves, but it is not beyond the ability of the leading libraries to offer a more sophisticated, law-based approach. A whole generation of microstock photographers is in my view presently being misled about their true rights.

I should add that photography is subject to numerous local laws and regulations. I do not propose in this work to cover these complex and shifting issues, but I do ask you to be aware of them. If you are traveling to a new destination in a country you are not familiar with, it is a good idea to check with your embassy, consulate, or other advisory service about possible restrictions on photography.

DATA PROTECTION ACT REGISTRATION

Be aware that if you collect personal data about your models—names, addresses, etc.—you will, in the United Kingdom, have to register under the Data Protection Act of 1998 (DPA) with the Information Commissioner and comply with the eight Data Protection Act principles regarding use of that data.

For more information about the DPA, please have a look at http://www.ico.gov.uk. These rules are restrictive and impose obligations that are beyond the scope of this book. My present view, therefore, is that when you get your model to sign his or her model release, you should at the same time get him or her to sign up to your Data Protection policy (as part of your terms of business, perhaps), the purpose of which will be to provide you with greater freedom to store and use personal data, and possibly transfer those data overseas if so required. This applies even if you are using unpaid friends and family. Even if you do not supply the information to any library, you as the photographer are potentially subject to the requirements of the act.

PROPERTY RELEASES

You can of course get around the problems identified here if you get an express property release. Whether it is possible or economical to do so is another matter entirely. My view is that there is enough material to photograph without needing to become embroiled in seeking out property releases.

MODEL RELEASES

Photographs of identifiable people require model releases. Basically, this means that if you show any part of a model's face or the model can otherwise be identified from your photograph, play it safe and ensure that the model signs a release. It is important that the release clearly states that the image might be used for commercial purposes—or is worded so broadly that this must be the case. Misleading the model (or failing to get permission) could land you and the library in hot water.

I have included, with the kind permission of the copyright owners, some sample model releases for Dreamstime, Shutterstock, and Fotolia in Appendix 2. My grateful thanks to them for their kind permission to include these for ease of reference. You can of course download them from each relevant library, and you may need different releases for other libraries if they object to your use of another library's release.

Do not just hand a release to your model and say “sign there.” It is important to explain to your model that the photographs could be used for any legal purpose and that neither you nor the model will have any say in how the image is used. For example, it is possible that an image of a committed Roman Catholic might be used to advertise contraceptives. It is not a good idea to mislead or dupe your model—make sure he or she reads the release and understands the ramifications of signature. With minors, the release should be signed by the responsible parent or guardian.