Can the photos be used for promotion?

<p>There was a post earlier that got me to think....<br>

Here is the example situation...<br>

"Studio" offers services including photography. <br />The Studio gets the job to photograph a product line for a set price.<br />"Studio" shoots the designed product in its studio, and returns products and provides the images to the client. Some get run as ads in a magazine (after Studio creates the ads and submits them). <br />Invoice is made and paid for the amount.<br>

My questions.... <br />1. Is the Studio free to use the images for self-promotion in mailers, web, lookbook etc? (no people involved, just products).<br />2. Is the Studio the copyright holder?<br />3. Does studio need to specify clients usage limits ? If not, then what is the client limited or not limited to if not mentioned?<br />4. If you need permission, would the same rule apply to a photo with a building in a landscape image?<br />5. Does it matter what the subject is? (I can see artwork maybe a problem, but how about objects?)<br>

Is there a source for these answers that are clear?<br />Would this apply differently in California vs. New york?</p>

<p> </p>

<p>Everywhere you are will have different regulations. I would never use an image that a client paid me to take without their permission. On the flip side, although this is a forum to discuss the business of photography, it's definitely not the place to seek legal advice. And legal costs are always much lower when you seek them ahead of time rather than afterwards....-Aimee</p>

<p>As Aimee noted, for detailed legal answers you'll want to consult a lawyer, but the short easy-to-understand answer to most of your questions is that they'll be answered by the contract that was hopefully signed between the studio and the client, which should've included language about usage and copyright.</p>

<p>This is not a legal situation, They are questions for 2 geo regions with somewhat specific sinario's that should have some textbook answers. Thank you for your input and suggestion to get a lawyer. Asking permission is always the way to go. Getting it in writing can also be a challenge at times.<br>

Anyone have any experience in this area or can point to some documet/book that describes this for CA and or NY ?</p>

<p> </p>

<blockquote>

<p>I would never use an image that a client paid me to take without their permission.</p>

</blockquote>

<p>This seems to be more of an issue with portrait/wedding studios.</p>

<p>1. The norm for product studios is to retain/state specific promotional purposed in the contract. While this can be assumed unless the usage specifically prohibits the photographer from using an image for promotion, it is better to put everything out on the table.</p>

<p>2. Unless you worked for hire or you sold the rights (usage is not the same thing as selling the rights) you own the copyright.</p>

<p>3. This is a basic part of usage. You should always spell out the EXACT usage on all contracts. They can be unlimited, limited, for specific purposes, exclusive, non-exclusive, etc. Nobody should write out or sign a contract without this.</p>

<p>4,5. The building would usually need the permission of the building owner if the image is published (ad, web, etc.) but not normally for portfolios. But this is usually discussed before the job and then the permission is included in the contract.</p>

<p>Copyright usage doesn't vary from state to state-it is federal law. Otherwise interstate business would be so difficult it wouldn't be done.</p>

<p>Sources for answers</p>

<p>1. www.copyright.gov. Keep the Circulars that pertain to VA (Visual Arts) in your photography office.<br>

2. ASMP Professional Business Practices in Photography 7th Ed. Go to www.asmp.org. You can order the book here. Best business resource</p>

<p>Both of these are must-haves for a professional studio.</p>

<p> </p>

<p>If the example I gave above is without a contract... are there guidelines that would apply as some kind of default? The work for Hire has to be in writing, otherwise it is not considered work for hire (thats what the copyright.gov site explains).<br>

The "building" is a bad example as it is visible in public, and can be questionable.<br />lets say the product is not publicly visible. After publishing in a magazine, does it make it OK to use as promo?<br>

I been meaning to join asmp for a couple years now....will do today:-)<br>

So this is a Copyright question? (from reading the copyright.gov site, I was under the impression that the person who photographes the subject is the copyright holder).<br>

It also mentions Published vs non-published. Then there is a 1989 explanation. if it is published/printed before 1989, it is considered published, but works after this date, are considered a little different? Not clear on that one.<br>

Any clarifications would help.<br>

Thank you John...</p>

<p>Answers:</p>

<p>1. Can't answer. What is the "product?" (Don't really need to know) While things don't have "rights," the owners of those things do. The product may be subject to copyright. It may be a trademark or servicemark item, etc. It may have a distinctive desing that leads to "trade dress" concerns. If the product is clearly identifiable to an individual or entity with rights, then the use could well be subject to the concerns the same as would the individual. However, as Aimee points out, even if it were "legal," I'd suggest that using the client's images without permission would be a poor practice.</p>

<p>2. Probably. In the US, copyright ownership is held by the "author" of the work. However, under conditions described in the copyright laws and/or with contract language covering it, the pictures might be considered "work for hire." It would be difficult for a studio to stumble into a "work for hire" unknowingly. That is not necessarily the way copyright laws work in other countries. Nor is it a good idea to expect that the client understands copyright law.</p>

<p>3. In the US, the copyright owner has certain exclusive rights. Outside of "fair use" (look that up), someone other than the copyright owner has essentially no rights to use the material. There is a giver/seller of pragmatic business advice who suggests that one should not tell the client anything along those lines, then you have access to to the legal system for the penalties available when your ownership rights are infringed. Personally, I think one would be better off being very clear in the contract what rights have been licensed to the client. Not everyone is even close to familiar with rights and licensing issues. Pouncing on a client for what might be innocent misunderstandings would seem to run counter to building follow-on business opportunities and good word of mouth recommendations.</p>

<p>4. The copyright laws do not prevent taking and selling pictures of architectural subjects when in public places or visible from public places. One would need to be concerned about trademark type issues in the use of the images.</p>

 

<p >5. Yes, it matters. Copyright protection is available for original works of authorship such as literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. The copyright laws go into more detail as to what these items consist of, and also what isn't subject to copyright protection.</p>

<p > </p>

<p >You'll want to go to the Library of Congress copyright website and immerse yourself in the material presented there. Beyond copyright there may be patent and trademark issues (links provided at the LoC site, btw.). All of these legal issues are covered by federal law. There may be some state trademark law concerns. The articles which may be covered by an individual's "right to publicity" would be covered by state laws. These vary somewhat from state to state. A product which incorporated an individual's identifiable likeness might be at issue there. Or it might be acceptable "free expression" use under the 1st amendment. That law is somewhat in flux and there are times wheredifferent rights conflict or overlap.</p>

<p > </p>

<p >There are a number of sources of photographically oriented legal advice available in the way of books, websites, etc. Most will tell you that the discussions or information is general and may not apply to the specifics of any given actual situation. You should get competent local legal advice. Also keep in mind that if you or your business are not in the US, it's not unusual for references or advice to be based on US law and that can not be taken to apply in other countries.</p>

<p>Thanks Craig, so far the replies are helpful. Since your post, I have limited specifcs in the example...<br>

1st Most important Q is Still vague/unknown.....John says it is likely Ok, Craig cannot answer...<br>

Lets limit the product to a machine part(ie, gear or other molded part), a ring or necklace(finished product), watch(complete product), medical device (complete product). There is no contract.<br>

The photographs are usually going to an ad or brochure or a website for advertising, ..If the photo the Studio that took the images wants to use it for promotion ...<br>

_1st question...is it legal to do so or not in the US.<br>

_2nd is rather clear that the Studio is the copyright holder<br>

_3rd is not that important in the situation. Lets assume the client has unrestricted USAGE.<br>

4th is just a bad example.<br>

5th is now narrowed down to a machine part, a watch, a ring, a medical device<br /><br />___You'd think there would be a database to input search criterieas that would sift through stacks of cases previously settled for such situations.<br>

Some of these can also be looked at as sculptures. They may be one of a kind, or production pieces.<br>

Aren't the creators of the items responsible in copyrighting/trademarking or patenting the design, and that law applies when the copyright/patent/trademark is infringed upon?<br>

Taking a picture of the designed item for the client/creator for use in advertising or sales material is not part of the creation process where a work for hire can be assumed (unless written). <br>

meanwhile I will look up the LofCongress for specific as possible info, and look up fair use.</p>

<p>Well putting that in writing that ones works are allowed for self promotion would help. Not so much in stating the letter of the law, but more so in keeping good business relationships. Asking for permission to use any such work up front is simply a moral responsibility. Should a person disagree about the use of his or her likeness or property, and you proceed anyway with the letter of law on your side, what have you to gain?</p>

<p>Such goes with any business dealings in media when performing works for hire, etc., including video and voice. Before I proceed in any such activity I hand out single page releases like candy. I'm not so much interested in a signature, (if I get one, then it's ok). I'm more interested in identifying who I am going to have issues with. Because the root cause of 90% of the issues professionals have with their clients boils down to one simple and logical fix: Communication.</p>

<p>I had one issue in filming a operation and one of the staff raised an issue with being on tape. Since we discovered this prior to rolling, we were able to find someone willing to replace her. We could simply had taken the head doctors word and I'm sure that staff member would have obliged in fear of her job. However, anamosity is something you want to avoid as it'll burn you down the road.</p>

<p>My point is, communicate your desire to use the image for self promotional purposes first. Make sure that you point that out in the contract as few people ever read the things in full. If they disagree, then proceed with the job, get paid, but don't use the image. Honor their wishes, they will honor yours. Simple.</p>

 

<p>I agree with everything you said Peter. That is the logical and responsible practice, and I urge others to use such practice also.<br>

Doesn't sound like you have had any issues that can contribute to the example (revised). <br />That is admirable. Thanks for your experience.</p>

<p>Aaron, no Contract involved. work was asked to be performed, and work was delivered and paid.</p>

<p>A couple of things to consider: general legal principles may not apply to the specifics of any given situation. </p>

<p>Your questions 1 and 5 really have the same issues and concerns. Cryptic or vague descriptions make it pointless to try to figure it out. Piece parts probably aren't copyrighted but I wouldn't bet my money on it without giving it a lot more attention. Is a watch or ring "art?" Don't know. Is it a mass produced "Timex" or a one-of-a-kind jewel encrusted masterpiece? Not sure at all by what you mean by a medical device. If there is a business or legal conflict involved, then you need competent legal advice. Besides the language of the laws, interpretation may be covered by the intent of the lawmakers, there may be case law dealing with particular items or practices.</p>

<p>The studio or photographer's rights to use something are independent of the rights licensed to the client.</p>

<p>Absent a contract any of this would default to the way the various laws apply. The more money or emotion or ego or personality involved, the more you may need a lawyer.</p>

<p>I don't mean to make it cryptic or vague....<br />I simply made some nice fold out brochurs of a few selct works from past clients. They include the products I mention. A couple of the images on the brochure are unique ringpieces, a couple are limited or very limited production pieces. The medical device is generic and I'm not worried about it. <br /><br /> It is difficult to get permission, let alone in writing from the few makers. I already spent the money and made the prints(with envelopes) and am hesitant to mail thm out to potential clients. <br>

Thanks Craig..Your third paragraph puts things in better perspctive... At least what questions to ask.<br /><br />I just finished reading a bunch of different articles "fair use" search resulted in the cr.gov site. Sec 107 to 118. Had to go thru a bunch of articles not related. Still not mention of anything in terms of photographing products, and then the use of image. I have been reading for hours. I wonder if there is such a book titld "What photographs a photographer can use in self promotion/portfolio". :-)<br>

I don't even know if a Lawyer would have some answers to this! </p>

<p>The studio or photographer's rights to use something are independent of the rights licensed to the client...<br>

That is exactly why I originally posted in the legal-NON copyright section. Thinking they are different or seperate. but with the replies referring to copyright, It sounded like I would find the answer in the same area (copyright.gov)? My search in copyright.gov has not covered the question. I think I learned a lot of other things :-)</p>

<p>After reading another post regarding real estate there was a response with the link to "Property releases" from ASMP website. John had mentioned this. I searched the site a couple times, but didn't have the proper search words. Now have some answers. Still none that involving a photographer who was asked to photograph the products then wanting to use them for promotion. The Copyright tutorial also touched on it with the "Photographing buildings" or artwork on buildings.<br>

Although I have yet to read anything more direct. It sounds like it is legal(sounds bad, I know), as the restrictions on what you cannot do are rather clear.<br>

The site even has a property release form. <br>

I am still hesitant to send the mailers out :-) I have asked permission on most. It is 4 images that I have not.</p>

<p>If the product is subject to copyright, the "owner" has the exclusive right to make copies or make or authorize derivative works. Which might make copyright ownership of the pictures a bit unclear. That's the point - the issues are murky and if you are trying to find a clear or dependable answer on whether you can do something, you need authoratative advice - and from competent legal counsel, who will stand behind the advice with training and resources and responsibility for coming up with the correct answers.</p>

<p>Even if not subject to copyright (or trademark, etc.), you are asking about using someone else's property to promote your business. As can be seen from the various ASMP discussions, in some places they say they are unaware of any legal case or law showing need for a property release yet in another, they say one should have them. The ASMP is likely trying to be conservative in answering because they are in a position where one would expect correct advice. Also, they can give general advice that is reasonably sound for all states but won't give advice that could be taken to specific cases in different states. A forum is not a place to expect correct advice. Beyond the legal issues, there is a matter of courtesy or business sensibility in using someone's material without permission. It may be legal but still could have negative consequences.</p>

<p>But without (and probably even with) the specifics of the ads or of the products and the photos, no one can give much beyond a SWAG. You're clean if you get permission. You'll be more comfortable if you have competent legal advice.</p>

<p>Craig, sounds like you have a lot of knowledge on this, thanks for your feedbacks.<br>

I consulted my attorney yesterday, and he said that I am likely ok. Get the releases via an email if I can. mostly no issue, but it takes one character that wont look at it as free advertising, and be upset. The images/ads I create make a difficult subject to capture, look appealing, so there is much artistry that is in the image making process that helps make it more of an expression vs a documentation of the subject.<br>

I posted the question not in hopes for direct legal advice, but for personal experiences that might have had some likeness to my questions that would help me understand. Unless there was a lawyer reading and I was lucky enough to get the direct feedback from him/her. Craig, you could be a lawyer for all I know :-) as you have a confident and strong approach in the way you answer. But perhaps some lawyers have looked at this and need more info to answer? My lawyer didn't ask me more details than I have posted... I think I sometimes fail to remind myself that argument is an artform in itself and each case that has 2 sides arguing will play out different, and the art is in the way the different points are presented. <br>

I was under the impression that the law was much more clear regarding the "specifics" on my question.</p>

<p>No, just have followed copyright issues. There are a number of fairly well documented copyright cases out there and some good photography law sites and blogs. The blogs and forum discussions can sometimes be emotional or driven by wishful thinking but the cases themselves, especially when things get to the appellate levels will have the arguments presented by both sides and those will have discussions of prior cases and case law, the actual laws, interpretations of the laws, etc., and the decisions will usually have the "opinions" from the justices involved which will also cover the law.</p>

<p>Any links to where I can read some of these? Perhaps some proper search words?</p>

 

<p>One of the best sources on the web for copyright issues can be found <a href="http://fairuse.stanford.edu/">here</a> . The site also covers fair use, which is a term constantly misused by photographers who think they can post anything they want, as long as nobody else posts their stuff.</p>

<h2 >Leicester v. Warner Bros., 232 F.3d 1212 (9th Cir. 2000)</h2>

<p>http://www.law.cornell.edu/copyright/cases/232_F3d_1212.htm</p>

<p>This covers a lot of ground but stashed away in there are discussions of buildings, architecture, separate pictorial, graphic and sculptural works, etc.</p>

<p>Not sure what else I used as searches, but would suggest that you consider material prepared by lawyers or professional organizations, etc., not just blogs or material that isn't caveated as being general and not "legal" advice. When you have entered into a lawyer/client relationship, they have a different duty to you and a responsibility to you as well as being subject to malpractice or bar discipline. Blogs and forums aren't accountable in any way so the advice may be all over the place as to accuracy.</p>

 

<p>ok, lots of stuff to read. Thanks again. I hope I find something close to the specifics in my example.</p>

<p>FWIW to those reading the thread....After a few lengthy discussions with my lawyers, You can use them, its just a matter of wanting to defend yourself and spend the money proving you are in the right.</p>

<p>This may apply differently to you, so check with your situation and don't take anything online as a end all source of info....but you knew that already ;-)</p>

<p>Besides determining a willingness on your part to pay for the "defense," did you go over the points that were used to establish the reasonably safe use of the images? </p>