Rights, Lefts, Releases and Licenses
A finger depresses a button, a set of diaphragm blades shoot forward, a mirror swings up, the first shutter curtain opens, an electrical pulse
triggers a neon strobe, a piece of photosensitive material is expose to light, the second curtain closes, and a new can of worms regarding rights
and ownership is opened … elapse time 1/120 of a second. No matter which side of the lens you are on the issues surrounding rights in
photographic imaging, are of concern to you. There are a lot of misconceptions out there.
Let’s examine a few that are of concern to models.
Copyright
Who owns it? What is it good for?
In the fraction of a second that the film or sensor (see example above) was exposed to the flash of light from the strobe, an image was created,
fixed. The image existed before the strobe fired but until it was recorded it could not be owned. The instant it became a fixed image it became
property, by default the ownership of that fixed image falls to the photographer. To repeat: at the instant of creation, barring an agreement to the
contrary, the photographer owns any image he creates, completely and 100%. It does not matter what or who the subject of the image was, nor
does it matter who paid what to whom. The photographer owns the copyright.
So what does that mean? Well, it means that the photographer has the right to decide who gets to reproduce the image. It also entitles the
photographer to sue for damages if someone copies the image without first obtaining the right to do so. By holding the copyright the photographer
has “control” of the work that (s)he has produced.
At this moment all the models are thinking;
“What the hell? I’m the one in the picture, I’m the one who posed, I’m the one that had to get up at 5 am everyday to get to the gym before the day-
job. All the photographer did was press a damn button, how does the photographer wind up with all the rights?”
Stop…Relax…No one owns all the rights…
Yet.
The Right to Publicity and the Model Release
As the subject of an image you have rights. Although you do not own the image you own your “likeness.” This means that the image may not be
used for commercial purposes unless you give someone the right to do so. The usual method used to provide someone these rights is a Model
Release form, by signing a model release you agree to whatever terms it specifies, this does not mean that the photographer can’t do anything
with the images if you don’t sign a release. Even without a release the photographer can still use or sell the pictures for a number of purposes,
such as the production of an art print for gallery display, a display piece to be used in the photographers studio, or as an illustration in a
magazine. Basically the photographer can make as many copies as (s)he cares to and show them to anyone who will look. As the subject of a
photograph you have only limited rights when it comes to controlling the use of that image so use them wisely.
Licenses and using pictures of you
Let’s say that you have a shoot coming up and you really like the photographer’s work, you would love to have one of his pictures of you in your
portfolio. You could offer to buy out his interest in one or two of his images, or you could offer to hire him, on a work for hire basis. But you don’t
need to control who gets to copy the images all you need is the right copy the images for the purpose of self-promotion. What you need is a
“license.” A license is effectively a permission form that grants you the right to use the photographer’s images for a given purpose, a set period of
time or a set number of copies. It tends to be a lot cheaper (sometimes free) than buying out the photographer’s interest in the images, and it gets
you the rights you really need without having to pay for what you don’t need.
In summary
So the photographer pressed the button, things went click, whirr and zing, a light flashed and an image was created. Assuming that you are a
smart model and you are working with a smart photographer, there is already an agreement in place that clearly states who will have what rights
and who will receive what compensation. But, all too often we fail to lay all this out beforehand. If someone was foolish or lazy and no agreement
exists at the moment the image was created; the photographer owns the right to control reproduction of the image and the model owns the right to
control the commercial use of the his or her likeness. For the photographer to acquire the rights to the commercial use of an image the model
needs to sign a release. For the model to acquire the right to copy the image the photographer must sign a license agreement or transfer the
copyright.
Please keep in mind that this is only the most basic overview and that the laws can vary from place to place. A lawyer is your best source for
specific information about your rights and the laws in your area.
Links to additional info:
http://www.law.cornell.edu/wex/index.php/Privacy
http://www.law.cornell.edu/wex/index.php/Publicity
http://www.copyright.gov/