The law regarding model rights and photography is pretty clear cut, yet it remains a subject of confusion for many. It’s understandable that both the photographer and model they capture in print want to safeguard their reputation.
The following discusses the legalities on both sides and puts in context the most important ‘need-to-know’ factors that apply to each party.
· Model rights explained
· Photography copyright
Model rights regarding the use of photos in which they feature are very few. It’s normal practice for a ‘model release’ to be granted to the photographer. This is written permission from a model that the photographer has their permission to sell photographs in which they feature.
This negates the need for the photographer to have to ask each time he/she wishes to sell an image. Most companies (agencies, stock image libraries, etc.) insist on a model release as mandatory to consider the purchase of any photographer’s work.
Quite simply, a photographer owns the copyright of his or her work. Models do not have any ownership or copyright over the image. Such copyright provides the right to do the following:
· Copy, display, or create derivative works
· Transfer any of these rights to others
This copyright exists from the moment that the work is produced. In simple terms, from the moment the shutter button is pressed, the person who takes the photo owns the work.
· Intellectual property
· Editorial use
· Commercial usage
Intellectual property is often an issue when it comes to model photography. For example, the simple act of wearing an item of clothing that displays a trademark or logo can potentially cause a problem. As long as it can be shown that the image containing such a mark isn’t for commercial use, or that it creates ‘consumer confusion’, then its use is allowed.
However, if such an image is to be sold or used in a commercial context then permission from the logo or trademark owner would need to be sought prior to its use.
Editorial use is determined as the sharing of information, as opposed to that of selling or promoting a product or service. For example, a blog or informative article in a magazine would be considered editorial use. In such cases, a photographer would not have to have a model release (so permission in writing) from the person in the image.
However, if the image is to be used to promote a product or service for profit, then this is considered to be commercial use. This means the photographer will need to have a model release in order to sell the rights to use the image.
The field of model rights and photography copyright is clear, yet as the above explains there are some areas where the lines may blur and the definitions can be interpreted in a manner that doesn’t conform to US law. Both photographers and models need to protect their product, art, brand, and likeness, so it’s a crucial element of business success to have a comprehensive overview of where you stand in the terms of the law.
While the law is quite clearly defined regarding model rights and photography copyright, when problems arise the best course of action is always to seek professional advice. ChaseLawyers® are legal industry experts that are trusted by many high-profile clients around the world. With strategically placed offices in NYC and Miami, they can effectively serve the whole nation and further afield.
If you require counsel on model rights, photography copyright, or any other aspect of entertainment and sports law, visit https://entertainmentlawyermiami.com to get in contact for an exploratory, confidential, and no-obligation conversation.
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