Copyright Guide For Photographers

This document is Copyright ASMP (American Society of Media

Photographers, Inc.) 1991. It is distributed electronically by the

online members of ASMP, as a service and a guide to creators, buyers and

users of intellectual property.

 

Reproduction and distribution of this document for non-commercial use is

encouraged. Reproduction must remain intact, as a complete whole, and

including this notice.

 

The original distribution (July, 1992) was via CompuServe Information

Service (CIS). To access ASMP members within CompuServe, GO PHOTOFORUM.

 

Further information may be obtained from:

Julia Velikson, ASMP Sysop

Internet: 76020.3231@compuserve.com

CIS: 76020,3231

 

 

 

COPYRIGHT GUIDE FOR PHOTOGRAPHERS

by Richard Weisgrau & Michael Remer, Esq.

 

 

Copyrights can be valuable intangible assets. The Copyright Act of 1976

made clear that photographers are the copyright owners of their images,

except when those images were made as an employee, or when the

photographer has conveyed the copyright to another party in a written

and signed agreement.

 

In an effort to enhance understanding of copyright, ASMP has developed

this mini-guide on the subject. This pamphlet is not a legal guide to

the subject. Instead it is intended to give you a fundamental

understanding of the subject of copyright and how it applies in your

profession.

 

 

 

COPYRIGHT BASICS

 

Copyright is a right, granted to you by law, to control the copying,

reproduction, distribution, derivative use, and public display of your

photographs, and to sue for unauthorized use (infringement) of your work.

 

This right begins at the moment you fix your photographic expression in

a tangible form, that is, when you create the latent image on film.

Copyright ownership, bestowed automatically when you make an image, does

not depend upon registration with the copyright office or placement of a

copyright notice on the image.

 

Although most images are copyrightable, some are not. To be

copyrightable, images must be original. Originality is essential to

copyright. If you exactly copy a photograph, the copy can not be

copyrighted, since it has no originality. (In fact if the first

photograph is copyrighted, you would need the original photographer's

permission to copy it.)

 

Making a substantially similar copy of someone else's copyrighted image

without authorization constitutes copyright infringement. It is usually

necessary to show that the alleged infringer had access to the original

work-but the images may be so closely identical that no explanation

other than copying is possible.

 

Ideas, themes and concepts are not copyrightable, Only the original

expression of those ideas, themes and concepts in some tangible form,

like a photograph, can be copyrighted. You might have an idea for a

great photograph, but you get no copyright until you make the actual

photograph. An art director might have a great concept, but that

concept cannot be copyrighted.

 

Having an idea or concept does not entitle one to a share of the

copyright of the photograph. The copyright belongs to the one who makes

the tangible expression of the concept or idea.

 

 

 

COPYRIGHT REGISTRATION

 

Copyrights can be registered with the Copyright Office in Washington,

D.C. Although registration is not required to own the copyright, there

is one instance in which you must have a registration and another when

there is a definite advantage to registration.

 

When legal action is necessary to remedy a copyright infringement, the

image must be registered before the legal action can be started. This

registration can be made after the infringement occurs. However, unless

you register before the infringement (or within three months after the

first publication even if after infringement, you will not be able to

sue for statutory damages, which are up to $100,000 per infringement

plus your legal fees. When statutory damages are unavailable to the

copyright owner a claim can still be made for actual damages, that is,

the amount of money lost as a result of the infringement plus the amount

of profits realized by the infringer. But actual damages can be

difficult and expensive to prove, and legal fees can be an additional

burden.

 

A photographer should always seek legal advice from a qualified attorney

before threatening a copyright infringement action.

 

 

 

COPYRIGHT NOTICE

 

ASMP recommends that all photographs carry a copyright notice, even

though it is no longer required by law. The lack of notice could

provide an infringer with a defense of "innocent infringement". This

defense could seriously limit the recovery of damages in an infringement

claim.

 

Copyright notice is a way of saying: This is my work - if you want to

use it, come to me. This stance reinforces the asset value to your work

and alerts everyone that you are prepared to protect that value.

 

Copyright notice consists of the letter c in a circle © followed by

the date of first publication and the photographer's name. For example,

©1991 (Creator's Name). The word "Copyright" or "Copr." can be

substituted for the ©. Either form is recognized, but use of the ©

symbol can give additional international protection. The words "All

Rights Reserved" can also give further international protection.

 

A word of caution is called for on the subject of notice. Some persons

when typing or wordprocessing and some computer programs use a c in

parenthesis [©] as a substitute for a © . To the best of our

knowledge this form of notice has never been rejected by a court, but

there is no guarantee that a court would uphold a © as proper notice.

The law calls for a © or the word "Copyright" or "Copr."

 

 

 

LICENSING THE RIGHT TO USE YOUR PHOTOGRAPHS

 

As the copyright owner, you have to license someone to use your image

before they can legally do so. A license is simply a permission to use

the photograph with certain limitations.

 

A non-exclusive license does not have to be granted in writing-although

ASMP strongly urges all photographers to grant licenses in written form.

This avoids subsequent disagreements about the terms of the license. In

the absence of a written license, the photographer and client are in an

awkward position. If a dispute over usage arises differing

recollections of rights granted can only be resolved by negotiation or

legal action. Needless to say legal action, a last resort, is certainly

costly and to be avoided if possible. Negotiation, while suitable to

resolve disagreements, is best done before use begins, not after the

fact. Negotiate the license, then confirm the usage rights in a written

copyright license.

 

Under the copyright law, an "exclusive" grant of rights means a transfer

of all or part of copyright. Avoid these words, unless you intend to

transfer copyright ownership to the client.

 

If a client insists or you wish to offer exclusive rights consider

limiting the rights as you would limit any other grant of rights. That

is, you should properly grant the exclusive rights for a certain time

period, a certain geographic area, and a certain media, such as

advertising, books, etc. By applying limitations to the exclusive

license you are narrowing the transfer of copyright. By setting a time

period you are assuring the expiration of the transfer.

 

More information on copyright licensing, and samples of copyright

licenses can be found in the ASMP FORMS booklet, and in the ASMP

Assignment Photography monograph.

 

The rights which you license should be based upon the outcome of the

negotiations which you have conducted with your client. Generally, you

will grant rights to meet the particular uses for which the client wants

the work. The fee will usually increase as the bundle of rights granted

increases.

 

 

 

TRANSFER OF COPYRIGHT

 

You can transfer copyright ownership to another party. Copyright, like

any asset, can be bought and sold. The only requirement in the law is

that a transfer of copyright ownership be in writing and signed by the

copyright owner. Photographers should exercise care in signing client

purchase orders. ASMP has seen many examples of purchase orders which

have a copyright transfer included in the terms and conditions. Signing

such a purchase order would result in the loss of your copyright.

 

There is no law that says you have to transfer copyright to a client.

Remember, even though the client might be the originator of the concept

or idea this does not entitle them to the copyright of the photograph

which you, the photographer, originate.

 

 

 

WORK FOR HIRE

 

Work for hire is another way the client can become the copyright owner.

The difference between work for hire and a copyright transfer is rather

simple. In the case of a copyright transfer you own the copyright until

you transfer it. In a work for hire situation you never own the

copyright. It is owned by the client from the moment the work is

created, and the client is by law the author of the photograph. The

photographer is denied authorship and is treated as a tool of the

client.

 

Work for hire exist automatically in the case of an employee taking

photographs for the employer. As provided in the copyright law, no

agreements are required.

 

An independent contractor ("freelancer") can do a work for hire only in

certain circumstances. First, the work must be commissioned-that is

specifically ordered by someone, and if it is commissioned, it can be a

work for hire only if the photograph comes within one of the nine

specific categories enumerated in the copyright act as qualifying for a

work for hire:

 

Contribution to a collective work Contribution to a motion picture or

audio-visual work Translation Supplementary work Compilation

Instructional text Test Answer material for a test Atlas

 

The category most frequently involving photographers is a contribution

to a collective work such as a magazine or other periodical.

 

 

 

WORK FOR HIRE AND COPYRIGHT TRANSFER DIFFERENCES

 

Although many see work for hire and copyright transfer as the same

thing, they are not.

 

Under the law, if you transfer the copyright you can get it back after

thirty five years. This "recapture" provision of the law was designed

to allow photographers the eventual control over their body of work.

Also, when negotiating a copyright transfer you have the ownership and

can bargain for the price of the copyright.

 

In a work for hire situation you never have the copyright. You have no

recapture right at any time. You are simply selling your services for a

fee. That fee should reflect the present and the future value of the

copyright. If you signed a work for hire and later want the copyright

to the work, the only way you can get it is to negotiate with the

copyright owner to transfer it to you.

 

Finally, a work for hire will apply to all photographs taken on the

assignment, not just to those used by the client. A transfer of

copyright can be customized and apply to all the photographs or some

portion thereof, such as only those used by the client.

 

 

 

FAIR USE

 

The copyright law allows someone to copy your work without penalty in

certain cases. This is called "fair use". In order to qualify for "fair

use" the photograph would usually have to be copied for educational,

classroom, news reporting or other educational or public interest

purposes. Fair use is always subject to interpretation. There is no

simple rule to apply to determine when an unauthorized use is "fair

use".

 

Each case has specific facts that must be examined before such a

determination can be made. This is one reason why it is important to

consult with a knowledgeable copyright attorney before jumping to

conclusions about infringement.

 

 

 

COPYRIGHT AND COLLECTIONS

 

In recent years the trend has been to invoice the client with terms

stating that the grant of rights to use the photograph is not in force

until the invoice is paid in full. It should be understood that under

this provision nonpayment may be both a breach of the client's

contractual obligation and infringement of the copyright. This can

create a legal question about the best way to enforce your rights - a

question best answered by competent legal counsel.

 

 

 

BUYOUTS AND ALL RIGHTS

 

"Buyout" and "all rights" are confusing terms and are thought by some to

mean a transfer of copyright However, these terms have inconsistent

trade definitions, depending upon personal understanding, and

consequently are not reliable in licensing terminology.

 

We urge you not to use such terms In licensing clients the rights to

your photographs. It is better to clearly state whether or not the

copyright is being transferred.

 

An all rights agreement without a transfer of copyright is a permission

to a client to use your image as desired, while the copyright remains

with you. This gives the client the widest range of rights for the time

allowed in the license without a transfer of copyright ownership.

 

 

 

DEFINITIONS FROM THE COPYRIGHT ACT OF 1976

 

"Audio visual works" are works that consist of a series of related

images which are intrinsically intended to be shown by the use of

machines or devices such as projectors, viewers, or electronic

equipment, together with accompanying sounds, if any, regardless of the

nature of the material objects, such as films or tapes, in which the

works are embodied.

 

A "collective work" is a work, such as a periodical issue, anthology, or

encyclopedia, in which a number of contributions, constituting separate

and independent works in themselves, are assembled into a collective

whole. A contribution to a collective work can itself be copyrightable.

 

A "compilation" is a work formed by the collection and assembling of

preexisting materials or of data that are selected, coordinated, or

arranged in such a way that the resulting work as a whole constitutes an

original work of authorship. The term "compilation " includes

collective works.

 

A "derivative work" is a work based upon one or more preexisting works,

such as a translation, musical arrangement, dramatization,

fictionalization, motion picture version, sound recording, art

reproduction, abridgment, condensation, or any other form in which the

underlying work may be recast, transformed or adapted. A work

consisting of editorial revisions, annotations, elaborations, or other

modifications which, as a whole, represent an original work of

authorship, is a "derivative work."

 

A "joint work" is a work prepared by two or more authors with the

intention that their contributions be merged into inseparable or

interdependent parts of a unitary whole. Each joint copyright owner can

grant non-exclusive licenses to third parties subject to a duty to

account to the other joint owners for their share and profits.

 

"Motion pictures" are audiovisual works consisting of a series of

related images which, when shown in succession, impart an impression of

motion, together with ac-companying sounds, if any.

 

A "transfer of copyright ownership" is an assignment, mortgage,

exclusive license, or any other conveyance, alienation or hypothecation

of a copyright or of any of the exclusive rights comprised in a

copyright, whether or not it is limited in time or place of effect, but

not including a non-exclusive license.

 

 

 

FOR INFORMATION ON REGISTERING YOUR COPYRIGHT

 

Registration is handled through the Register of Copyrights, Library of

Congress, Washington, DC 20559. Telephone: (202)479-0700. A 24-hour

"hotline" for obtaining registration forms is (202)707-9100.

 

Photographers are normally registered in class VA (Visual Arts), except

for bulk registration and some contributions to periodicals. The

procedure for filing is quite simple. The form is self-explanatory; it

is filled out and sent to Washington with two copies of the photograph

(except for an unpublished registration, when only one is required)

along with a $20 filing fee. For registration purposes, every

photograph should have a title, which can be a simple descriptive

caption.

 

Form VA is the basic form for registering all works in the visual arts.

In addition to photographs as such, it should also be used for

registering the following items when they are primarily or exclusively

photographic in nature: books, advertising materials, and most single

contributions to periodicals. When these items consist primarily of

text, they should be registered in class TX.

 

If first publication occurs in a separately copyrighted work, such as a

magazine, you can still register the copyright in class VA as a

contribution to a collective work, thus securing the advantages of

statutory damages and legal fees in an infringement case as mentioned

above. This procedure is safer than relying upon the registration of

the collective work itself.

 

 

 

PROPER FORMAT FOR DISPLAY OF COPYRIGHT NOTICE

 

There are three ways to display a copyright notice:

 

 

© 1991, (Creator's Name)

Copyright 1991, (Creator's Name)

Copr. 1991, (Creator's Name)

 

Although all three are acceptable it is generally thought that © 1991,

(Creator's Name) is the most widely recognized in the international

community.

 

 

NOTICE

 

The Copyright Act is an everchanging document. Every effort has been

made to make this paper as up to date as possible. This document is not

intended to be legal reference material.

Two points relative to US and "foreign" copyrights vis a vis their enforcement against infringement in the US:

 

1) In some countries, e.g. Britain, they have gotten rid of the "work for hire" provisions. Now ALL work - even in the course of employment unless covered by a specific employment agreement - is the © property of the photographer.

 

2) Copyrights on works originating outside the US (aka foreign works) are enforceable in US courts against infringement without the necessity of a US copyright registration - AS LONG AS - the registration requirements that exist in the country of origin are complied with. This is to extend some uniformity to enforcement in line with the provisions of the Berne Convention which does not mandate a registration process on a national level of any signatory country. Britain, where I work, does not have a formal system of registration as the US does - but British originating works, as "foreign works, are fully enforceable against infringement in the US courts without US registration.

Do the same rules apply in Canada? I ask as my wife has dual nationality (British/Canadian)and it is somewhere we are considering.

<b>DAI</b> That's not quite right <p>

{from the UK's <a href="http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm">Copyright, Designs and Patents Act 1988</a> <br>

<i>Chapter I<br>

Section 2.<br>

�(1) The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description.<br>

-(2) In relation to certain descriptions of copyright work the following rights conferred by Chapter IV (moral rights) subsist in favour of the author, director or commissioner of the work, whether or not he is the owner of the copyright�<br>

- - (a) section 77 (right to be identified as author or director),<br>

- - (b) section 80 (right to object to derogatory treatment of work), and<br>

- - © section 85 (right to privacy of certain photographs and films).<p>

Section 4.

�(1) In this Part "artistic work" means�<br>

(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality <p>

Section 9.<br>

�(1) In this Part "author", in relation to a work, means the person who creates it.<p>

<b>Key bit</b> Section 11.<br>

�(1) The author of a work is the first owner of any copyright in it, subject to the following provisions.<br>

-(2) Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.<p>

 

chapter II<br>

Section 16.<br>

�(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom�<br>

(a) to copy the work (see section 17);<br>

(b) to issue copies of the work to the public (see section 18);<br>

© to perform, show or play the work in public (see section 19);<br>

(d) to broadcast the work or include it in a cable programme service (see section 20);<br>

(e) to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21);<P>

 

Section 77 The author of an artistic work has the right to be identified whenever� <br>

(a) the work is published commercially or exhibited in public, or a visual image of it is broadcast or included in a cable programme service;<br>

(b) a film including a visual image of the work is shown in public or copies of such a film are issued to the public; or <br>

© in the case of a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship, copies of a graphic work representing it, or of a photograph of it, are issued to the public.<p>

 

Section 79.<br>

�(1) The right conferred by section 77 (right to be identified as author or director) is subject to the following exceptions.

 

-(3) The right does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally vested�

(a) in the author's employer by virtue of section 11(2) (works produced in course of employment)<p>

 

Section 85.<br>

�(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have-<br>

(a) copies of the work issued to the public,<br>

(b) the work exhibited or shown in public, or<br>

© the work broadcast or included in a cable programme service;<p>

 

Section 97.

�(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

 

</I>

<p>

What this means to a photographer in the UK is you have the right to do what you like with any picture without any kind of release, provided it wasn't made "In the course of employment" (when you don't own the copyright) or "commissioned for private and domestic purposes", in which case you do own the copyright, but you can't sell the picture to the public at large or exhibit it (i.e. a wedding photographer can't put couples' shots in his window if they object, but they still have to get their prints from him). Note also that unless they have reason to believe that someone else holds the copyright there is no reason for someone to refuse to copy a picture. Finally note that you have to acknowledge the architect of a building when you publish a photo of it. (Assuming they didn't die 50 years ago or more).

 

 

Hi James, so being very thick here for which I apologise and this is a genuine question as I'm quite new to working with models, what is the point of a Model Release Form in the UK?

RE: James O'Neill , feb 10, 2004; 04:32 p.m....DAI That's not quite right

 

ORIG STATEMENT: Dai Hunter , feb 07, 2004; 01:51 p.m....Two points relative to US and "foreign" copyrights vis a vis their enforcement against infringement in the US: 1) In some countries, e.g. Britain, they have gotten rid of the "work for hire" provisions. Now ALL work - even in the course of employment unless covered by a specific employment agreement - is the © property of the photographer.

 

I agree. "Course of employment" provisions remain in actual employment situations. I mis-spoke in that I meant to refer to "work for hire" in the sense of a contractor (non-employee) or commissioned work. In both cases the copyright is vested in the maker not the "employer in fact" (sometimes called the "employer in due course" - if, for example, the hire of a photographer's services is via an agent representing the photographer) or the "commissioner" of the work. You are correct, and I agree, if an actual employment relationship exists (usually requiring certain tests to be met to establish that an employment relationship does actually exist - who supplies the equipment? / does the employer control the making of the work? / is it done in the normal course of business? / ect.) AND there are additional considerations if the nature of the employment contract / employee's duties covers, or does not cover, the making of a work. Thus, a clerk who happens to take photos on the business property of his employer, even at their request, may still own the copyright because photography is not necessarily a normal duty of the employment -thus not strictly "in the course of employment". On the other hand, someone hired and waged by a publisher, advertising agency, (or other employer) specifically to do photography may not own the ©. Lawyers love this stuff.

 

http://www.intellectual-property.gov.uk/std/faq/copyright/who_owns.htm

Who owns copyright?

In the case of a literary, dramatic, musical or artistic work, the general rule is that the author, i.e. the person who created the work, is the first owner of the economic rights under copyright. This rule also applies to commissioned works. However, where such a work is made in the course of employment, the employer is the first owner of these rights, unless an agreement to the contrary has been made with the author.

 

http://www.intellectual-property.gov.uk/std/faq/copyright/commiss_work.htm

Who owns copyright in a commissioned work?

When someone commissions another person or organisation to create a copyright work the first owner of copyright is the person or organisation that created the work and not the commissioner, unless it is otherwise agreed in writing

Tony P , feb 10, 2004; 05:04 p.m.

Hi James, so being very thick here for which I apologise and this is a genuine question as I'm quite new to working with models, what is the point of a Model Release Form in the UK?

 

RE: James O'Neill , feb 10, 2004; 04:32 p.m. See: Sec85 of the post "private and domestic" works...

Section 85.

�(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have-

(a) copies of the work issued to the public,

(b) the work exhibited or shown in public, or

© the work broadcast or included in a cable programme service;

 

Tony, never leave home without one (a release). It serves not only the purpose of establishing an understanding of copyright ownership, but, more importantly the uses that are vested in the photographer. In effect there will be little argument about the provisions of Sec85 if you get a release that effectivel;y acts as a waver to the blocking provisions.

 

In fact where blocking under Sec85 is anticipated and agreed my preference is to use a "confidentiality agreement" setting out the allowed and dis-allowed uses of all the parties.

 

You are not being thick in any way. That is a very salient question on the subject of © ownership.

Hi Dai, Thank you for your reply.

 

Happily I have release forms for 90% of my work and the other shoots were practice might make portfolio.

 

I have more recently been thinking of an exhibition though as freelancing around here has died (most newspapers no longer buy work as too many people give them the pictures free just to be published) and I'm thinking of having to find work and do photography as art only.

 

Have to admit I feel thick where the rules and laws relating to models and copyright are concerned. OH for the good old days of shoot - print - publish and the subject was happy to be photographed (showing my age again) :)

Tony, under UK law there is no need for a release.

 

Section 85 is there to stop photographers using peoples wedding pictures in their advertising (which pre-88 they were able to do and the bride and groom couldn't stop them). If you ask someone to model for you, and you pay them then they can't be said to have commissioned you to take the picture for domestic purposes.

 

But as Dai says. ALWAYS get an agreement. You might the own the copyright and have the legal right to exhibit or sell the pictures, but if you want to do anything with them you want to avoid the model feeling tricked ... right ? Some publishers will want them not for the legality, but to avoid any grief later. And it's really important for models who don't want to see the pictures published to get an agreement that says they won't be.

It needs to be stressed that model release and copyright are two very different issues. They often get confused by people who don't have to deal with them, or are doing so for the first time. It's important to recognize that just because a photo is copyrighted, it's not necessarily legal to publish it.

 

The document above is very useful. If people want to learn more about the legal issues that affect photographers and photographs, there are organizations (in the US, don't know about other countries) that typically have names like "<state name> Lawyers for the Arts." These organizations often have seminars and free or inexpensive legal services.

Tony P,

 

Re your question as to whether the same rules apply in Canada, Canadian copyright law is similar to US copyright law with a few important exceptions:

 

1) Photographers working on assignment are always treated as if they are working for hire. That is, the commissioning party owns the rights to the work unless there is a written agreement to the contrary. There is currently a bill to amend the Copyright Act, which will remove this provision, wending its way through Parliament. If that bill passes, photographers will be treated just like anyone else, that is, they'll own the rights unless they sign them over.

 

This sounds horrible but in practice makes little difference, because your client can always present you with a work-for-hire contract regardless of what the law says. You get what you negotiate.

 

2) The registration process works quite differently and is unfriendly to photographers. Unlike in the US, in Canada you must register each work (e.g. individual photograph) separately, and pay a separate registration fee. This makes registration cost prohibitive, unless you happen to have shot the next Afghan Girl.

 

3) The statutory damages you can claim in the case of an infringement (if your work is registered) are much smaller than in the US.

 

For more info, go to the Canadian Copyright Board: http://www.cb-cda.gc.ca/new-e.html

FWIW here is the form of release I am using (in the UK, but possibly usefull elsewhere:

 

HEADER: Names/dates/film ID, location, ect at the top � followed by the body text -

 

For consideration received, I hereby sell, assign and grant to the photographer, his heirs and assigns, all rights with respect to copyright of the photographs detailed above, or contained on photographic media as detailed above in any form including digital works. I understand that the photographer reserves the sole right to reproduce, display, use, publish, or re-publish the specified photographic images in which I may be included in whole or in part, in colour or monochrome, in any media, at his studio or elsewhere, including the use of any printed matter in conjunction with such photographs, except as may be provided by separate agreement, if any should be made. The photographer reserves, in every instance, the moral right to be identified as the maker of the work.

 

If I consent, by reason of this general release, or by means of any separate agreement (if any should be made), to the reproduction, display, publication or any other use of the specified photographic images, I wave any right to inspect or approve of the photograph, image, caption or any other matter occasioned by such reproduction, display, publication or other use. However, any such separate agreement, (if any should be made), shall not limit the photographer, his heirs or assigns, from reproducing or using any photograph image for his/their own use. A separate agreement has / has not [select the words that apply and initial] been made respecting the specified photographs. Notes and comments below may constitute a condition of this general release but are not a separate agreement within the meaning of this paragraph.

 

I hereby release and hold harmless the photographer, his heirs and assigns, against any claim or liability as a result of any distortion, blurring, alteration or colour changes, optical or electronic illusion, or similar matter, that may arise in the taking, processing or reproduction of any of the specified photographs, or any part or parts of such photographs, including the addition of words or other embellishments.

 

I warrant that I am at least____years of age and competent to enter into contracts !n my own right and name. (If person photographed is under the age of 16 years this form must be signed by a parent or legal guardian acknowledging the above agreement, and, likewise, any supplementary or separate agreements (if any should be made), respecting taking or uses of any photographs detailed.

[body text of the release ends here]

 

[other information and notes on the construction for UK use]

 

*Plus signature of the model here and the date signed, and, followed by any notes and comments that might modify, or add to, the general terms of the release. Simple notes and comments, where a more formal and complex use agreement is not required, might contain a phrase such as �no commercial use by either party is agreed� � or � �model is authorized to reproduce images on their comp/zed card�. These are initialed by both parties. If left blank the body text IS the whole of the agreement unmodified.

 

*NOTE 1: The REVERSE of this release contains personally identifiable and sensitive information (full name, DoB, address and contact details) that may need to be protected under the (UK�s) Data Protection Act � these are NEVER released to a publisher but can be used as a matter of course in the photography business or to establish, in a legal dispute, the data as represented to me by the person I photographed.

 

NOTE 2: The assertion of �moral rights� in the last sentence of Para 1 allows me to place, without objection, my logo or a copyright notice, or both, on the FACE of any copy of the image. And, I do just that where I suspect that other unauthorised copies might be made by the model or a third party [lots of problems with model and talent agencies doing that � if they try and crop it out I�ll have their a*se for infringement]

 

*NOTE 3: The reason for the specific item in Para 2 [��A separate agreement has / has not��] is to establish in future if a separate document should be associated with the release or not. If there is no separate document (e.g. a confidentiality agreement; use agreement; or something similar) then the release itself is the whole of the agreement and that fact is apparent.

 

FINALLY, you will notice that the release form and body text starts out with the MAXIMUM rights to the photographer, INCLUDING COMMERCIAL USE, but can be ramped downward as required by modifying it appropriately. This is fair to both parties and it is my starting position for negotiations - everyone knows where they stand unless they negotiate a different position.

 

Interestingly, I did one, and it only happened once in a lot of years, three hour TFP [no charge to her] shoot for a [self described] "model" who both refused to sign the release OR negotiate it. She even refused my suggestion that she take it to her lawyer for advice. She wanted her pictures, in fact she DEMANDED her pictures, but I was getting nothing, zero, zip out of it. Not even a fundamental acknowledgement of my copyright ownership. In that one (thankfully) isolated case I destroyed the unprocessed film and told her to F**K OFF! So sad, too bad, bye bye!

Andrew Somerset , feb 13, 2004; 08:11 p.m. --- 3) The statutory damages you can claim in the case of an infringement (if your work is registered) are much smaller than in the US.

 

The moral to that story is to wait until you are infringed in the US; THEN register the infringed work in Canada but sue in the US under the "foreign works" rule.

 

Where there is a will... there is a lawyer. LOL

Hi Andrew - many thanks for the info and the link, as you say it really does sound "unfriendly to photographers" and registration sounds un-workable with what must be about 300-350 pictures generated a shoot. I get a lot of misses but that still leave me with about a 100 or so usable pictures. Wonder if thats partly why I here so many live in Canada but drop down into the US to work.

Hi Dai - Thank you also for posting your release, I'll save it off and slowly read it a few times so that it sinks in. I unfortunately have also had one bad experience doing a friendly shoot which is why I now only shoot with paperwork in place. As far as I have heard there are still comments being made about my "unprofessional behaviour" by the person concerned, even though I have some proof I did everything honestly, above board and as agreed. Not a mistake I intend to make again.

<b>Jeff,</b> one of the places where English law is different, is that copyright expressly gives the right to the copyright owner to publish or exhibit the work in public. <p>

<b>Dai</b> That may actually be invalid as a contract - It looks like standard text I've seen before. The model can't <i>sell, assign and grant to the photographer ... all rights with respect to copyright </i> because she never had any rights with respect to copyright to begin with. My memory of contract law is hazy, but I think if you contract to do something you don't have the power to do, then it isn't a valid contract. <p>

Note that the second paragraph says <i>"IF I consent to ... publication, then I wave the right to inspect etc"</i>. (a) You Waive a right. Waving is something else, and (b) There is no legal right to inspect. © It doesn't say that the model consents to publication - it does say photographer reserves the right to publish which is not the same thing.<p>

 

I use a plain English agreement which says (1) the copyright act defines these things which only the copyright owner may do,(2) the model accepts that I am the sole copyright owner, and (3) the model agrees I may do those things without any restriction. <br>

Tony, Canadian photographers can't drop down to the US to work, because photography is not a trade included in our free trade agreement with the US. In fact, the situation is not so photographer-unfriendly as it sounds; in the US, publishers present work-for-hire contracts, so it comes down to what you can negotiate anyway.

 

Re registration, there are ways around it. Some Canadian photographers are registering their work with the US copyright office, which thanks to the Berne Convention means the images are treated as registered in Canada as well.

 

As far as being infringed in the US goes, anything published in Canada is treated as registered by US courts, so you are okay for any published work.

Hi Andrew, Sorry I got that one wrong :( As you say it doesn't sound quite so photographer-unfriendly after all, the fact we can work in the UK without documentation causes even more headaches. The general advice here seems to be get the shoot agreed and documented so that everyone is covered and happy.

James O'Neill , feb 14, 2004; 02:32 p.m...That may actually be invalid as a contract - It looks like standard text I've seen before. The model can't sell, assign and grant to the photographer ... all rights with respect to copyright because she never had any rights with respect to copyright to begin with. My memory of contract law is hazy, but I think if you contract to do something you don't have the power to do, then it isn't a valid contract.

 

Dai�The person photographed (model) has certain un-enumerated rights (not covered in copyright law but potentially addressed in other law such as the UK�s Human Rights Act [privacy and "publicity" rights generally] and in a number of case law decisions on economic rights [aka �image rights�] to photographs as recently came to the fore in the Michael Douglas / Catherine Zeta Jones v People Magazine case, but, also in others e.g. Naomi Campbell v the Mirror*) that are dealt with here. Privacy, commercial [economic] and "image rights" aka "publicity rights", are inferred in law and THAT is what they are assigning by way of Para 1. There are recent court cases that are pointing in that direction more and more though the courts have been reluctant to establish an absolute right to privacy in the UK. Those rights of the individual, as the law develops, DO conflict with the copyright laws. The wording here, in the release, is to avoid those conflicts. You ARE right in thinking you have seen that wording before - and that is the reason for it � and that is the reason you keep seeing it.

 

*PRIVACY - see here but note, especially, the next to last paragraph: http://media.guardian.co.uk/print/0,3858,4383054-105414,00.html

 

IMAGE RIGHTS � see here:

http://media.guardian.co.uk/marketingandpr/story/0,7494,707768,00.html

 

J.O�Neill: �Note that the second paragraph says "IF I consent to ... publication, then I wave the right to inspect etc". (a) You Waive a right. Waving is something else, and (b) There is no legal right to inspect. © It doesn't say that the model consents to publication - it does say photographer reserves the right to publish which is not the same thing.

 

Dai�The second paragraph restates the position on privacy, commercial and "image rights" with respect to commercial exploitation rights of the photographer that appear in Para 1. The key phrase is ��by reason of this general release��. They have the option, or not, to sign off on it.

 

The concept of "image rights" is a fairly new and evolving area of law in the UK. I will give you three examples being sources of serious run-ins at the moment. Sports stars who are assigning the "rights" to their "image" to their clubs covering photographic and artistic renderings of their likeness. This is being pursued in both commercial uses but also in editorial uses (links above as noted). Thereafter, any "publicity" or use of their "image" MAY prompt an action for part of the revenue or for simple revenge. This [sports] is one area that is more well developed than others. The major clubs like Man United are even going after games makers for portraying computer likenesses of their players without a �license�.

 

Further�Music and movie personalities have been bringing suit over the same issues as sports clubs.

 

Further�and somewhat closer to the bone�Modelling agencies routinely use a form of client contract that REQUIRES that a photographer, even if he is a third party and doesn't actually sign that client contract, limit his economic rights with respect to ALL photographs taken of their "talent". The "client" is expected to secure that agreement and enforce it against the photographer. What this amounts to is, that, if you take photos for any reason [e.g. for a commercial ad campaign] of an agency model you must agree NOT use ANY of them in any way consistent with copyright law UNLESS 1) they approve of the use [and they CAN refuse] AND 2) you pay them ADDITIONAL fees beyond the first agreed use granted to the "client" [territory; time; and media].

 

Those contracts typically state that, in exchange for the model's and agency's iitial fees, the �client� [but not the photogrpaher] has the right to use ONE photograph, for ONE year, in ONE medium. Thereafter, additional fees must be paid to the "agency". That provision, in their client contracts, nicely stomps on EVERY tenant of copyright law with respect to the photographer's economic rights, because, indeed, if he is hired in to do the work it is most likely "work for hire" or a "commission" where copyright law is clear on the ownership of the copyright [belongs to the photographer] but he is expected to wave ["restrict" is the word they choose to use] those rights that may exist to economically exploit the images without paying (the agency) for the privilege.

 

It is interesting, in the case of model agencies, that they graciously allow the copyright to remain with the photographer and do not simply buy it, or force the client to buy it, from the photographer outright. But they still want to exercise control on, and demand fees from, any future use� commercial or personal. ANY USE! Further, there is no time limit stated in those client contracts, so the contract effectively gives them approval rights and a source of use fees forever. The lack of a time limit may, in itself, be an unenforceable position, because, as a matter of public policy the courts do not generally approve of such blanket restrictions beyond about 5 years. In practice, nobody that cares complains because it would be the photographic equivalent of putting a gun to your own head with respect to your career as a photographer; and, where there hundreds of photographers that just don�t seem to care there is always someone that can replace you. The position with model agencies, for the photographer, is almost laughably nonsensical, if it wasn�t so serious, in the sense that it is like buying a car (paying the model�s fees and the agency top-up fees usually at a 20% premium over the cost of the model�s services) but as part of the purchase agreement you agree not to drive it (commercially exploit the images).

 

I am even aware of a US case where a commercially unknown and unrepresented �model� posed for a photographer BUT thereafter acquired an agency to represent them. After that point in time the agency began demanding fees from the photographer for use of images made before the fact. That claim was based on the model having signed over to the agency representation of their �image rights�, which, the agency claimed, or tried to, covered any image ever taken of their �talent�. Bizarre but true! It probably wouldn�t get very far in court, and AFAIK didn�t in that case, but the photographer�s legal fees to defend his position, absent a competent release, could be a killer.

 

Para 1 of the release I use vests entirely in the photographer the commercial rights to the images. It is an agreement well beyond the copyright ownership issue alone and in isolation. Para 2 acts as a complete waver to approve that commercial use, including any un-enumerated right to inspection and approval, now or in future, by the model or an agent acting for them, of an image and its use. Without that you have the situation that presents itself with the model agency contracts, most specifically, as some sort of "inferred" right of approval or demands for additional fees based on �image rights�.

 

I do most of my work either for publication, or, commercially for other purposes, and I do shoot a lot of �new talent� images of actors, singers, dancers, wannabe models, and the like. I regularly hear the question along the lines of ��but what happens to the pictures if I become famous?..� My stock answer, usually stated in a nicer way however, is that I will do anything I like with them � and if the �talent� doesn�t like it they can find someone else to take their picture.

 

So, you see, I am in a position of having to look far ahead to the potential future problems that can crop up, and actually have with other photographers. In UK law, and in the US as well, but not in some other countries, copyright itself is viewed as �property� and can be bought, sold and contracted away, as well as given away in the case of the model agencies client contracts. I�ll sell images and I�ll contract images, and I�ll negotiate terms with �talent�, but, I absolutely refuse to give anything away. If I shoot something I lock it up as tight as I can at the onset, and that form of release tends to work in my favour.

 

Hi Guy, Sorry I didn't intend to start any "friction" when I asked the question. Here's what I have been using which seems to work:

 

MODEL RELEASE FORM

 

Photographer:

 

Address:

 

Model:

 

 

Address:

 

In consideration of having received:

 

In return for posing for photographs taken by you on:

 

At:

 

I hereby assign full copyright of these photographs to the above-mentioned photographer together with the right of reproduction either wholly or in part.

 

I agree that the Photographer or licensees or assignees can use the above-mentioned photographs either separately or together, either wholly or in part, in any way and in any medium.

 

The Photographer and licensees or assignees may have unrestricted use of these for whatever purpose, including advertising, with any reasonable retouching or alteration.

 

I agree that the above mentioned photographs and any reproductions shall be deemed to represent an imaginary person, and further agree that the Photographer or any person authorised by or acting on his or her behalf may use the above mentioned photographs or any reproductions of them for any advertising purposes or for the purpose of illustrating any wording, and agree that no such wording shall be considered to be attributed to me personally unless my name is used.

 

Provided my name is not mentioned in connection with any other statement or wording which may be attributed to me personally, I undertake not to prosecute or to institute proceedings, claims or demands against either the Photographer or his or her agents in respect of any usage of the above mentioned photographs.

 

I have read this model release form carefully and fully understand its meanings and implications.

 

Signed: Date:

 

Important!

If the Model is under 18 year of age, a parent or legal guardian must also sign:

 

 

Parent/Guardian: Date:

Not to worry Tony. No friction here. Only a quite civil discussion on a very technical subject.

How about for Spain, I am a U.S. citizen but I now live and reside

in Spain.

Tony Torres

I'm a bit confused by all this. Is there a European version available

of this document? Where would i be able to obtain it? I'm not a pro, just an amateur ( regardless of this, it hurts equally when you see

someone using your images without authorisation ).

 

Thanks

Further question.....So do I understand correctly that a photographer must submit the registration form, two copies, and $20 for EACH photo he desires to copyright? Isn't there a way that one registers himself and then all the work produced by him is automaticly copyrighted?

Brian,

 

At present, in the U.S., you can pay one fee to register a collection of work, i.e. multiple images.