Copyright / by Alain Zarinelli

First off, let me say that I am not an attorney, and don’t pretend to be one either :). Also, this post focuses on the United States; copyright rules and regulations in other countries may differ from what I am outlining in this post.

I have learned most of what I will tell you here from Ed Greenberg and Jack Reznicki (https://thecopyrightzone.com). If you are a Kelby One member, you can find some of Ed’s and Jack’s courses/seminars at Kelby One (https://kelbyone.com.) That said, any inaccuracy or ‘abus de langage’ is mine.

Fact: Unless you are a staff photographer, i.e. an employee of a company (you get a W2 from them), tasked with taking photographs for that company, any time you hit the shutter button on a camera, you own the copyright to the photograph you just created. Besides staff photographers, some commercial jobs may be contracted out as “work for hire,” in which case the entity contracting the work out will own the copyright (IMO, you should never, ever, agree to a “work for hire” contract — always retain the copyright to your work and license its use…)

So, if you own the copyright to your photographs “naturally,” why should you spend money and time registering that copyright with the United States Copyright Office (“USCO”)? The answer is actually simple — enforceability. If you do not register your work, and somebody infringes your copyright (e.g. steals your photograph and uses it without your permission), your position for taking legal action against the infringer is (almost) hopeless.

Besides officially registering, what else should you do to protect your work? While you do not have to tag your photographs with your copyright, adding an (un-intrusive) copyright notice to each photograph serves as a notice to the person looking at your art.

I typically embed my notice into the photograph’s metadata (e.g. “COPYRIGHT 2018 Alain Zarinelli; All Rights Reserved,” and provide a link to my terms & conditions/licensing agreement on the Web site). For photographs published on social media, or the Web in general, I often add a small “© 2018 Alain Zarinelli/Luxludus Media” in one of the corners of the photograph, unless I use a digimarc embedded watermark. Besides notice, these simple steps also enable me to show intent, if somebody were to infringe my copyright. More on that later…

Licensing

Since we now have established that (unless you are a staff or “work for hire” photographer), you automatically own the copyright to the photographs you have made, but that you want to “officially” register that copyright with the US Copyright Office in order to enforce that right. Let’s now take a look at another piece of the puzzle: licensing.

Now, if you are an amateur photographer, or you just take family pictures, you are probably less likely to license your photographs to 3rd parties. However, even in this case, you should “officially” register your copyright — you never know who might take one of your family pictures and use it on their web site, or in advertising… If you registered your work, even though you are not “selling your pictures,” you can still enjoy the legal protections from the registration!

But what if you do “sell” your photographs? This is where it gets a bit more complicated…

Firstly, you actually don’t ever want to “sell” your photos: what you want to do instead is give the right to use your work, according to documented and mutually agreed-upon rules (with or without remuneration); i.e. you are licensing use of your work, you are not actually transferring ownership (“selling”) your work (or copyright).

Clearly, the terms of your licensing agreements may vary from my terms — there are no hard and fast rules as to how you license, or even what you license. Some of you might be ok with giving a senior, or bride, all the photos you take on a CD, in high-resolution GIF or even “raw” format to do with them what they want. Some may want to restrict their clients’ use of photographs they took to only prints, with the stipulation that said prints can only be displayed indoors…

Whatever the terms are, just make sure you write them down and have your client explicitly acknowledge they understand those terms and agree to abide by them.

Model Release

Let’s start looking at what a “model release” is, and why you may want (or need) one. Wikipedia defines it as (my emphasis):

“A model release, known in similar contexts as a liability waiver, is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material is thereafter subject to the allowances and restrictions stated in the release, and also possibly in exchange for compensation paid to the photographed.”

In other words, the release is a document that clearly outlines how the photographs are going to be used, where, for how long, etc. Let’s look at some sample language one may find in a model release:

“In consideration of my engagement as a model, and for other good and valuable consideration herein acknowledged as received, I hereby grant the following rights and permissions to Joe Photographer (”Photographer“), his/her heirs, legal representatives, and assigns, those for whom Photographer is acting, and those acting with his/her authority and permission. They have the irrevocable, perpetual and unrestricted right and permission to take, use, re-use, publish, and republish photographic portraits or pictures of me or in which I may be included, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations, in conjunction with my own or a fictitious name, or reproductions thereof in color or otherwise, made through any medium at his/her studios or elsewhere, and in any and all media now or hereafter known, specifically including but not limited to print media and distribution over the internet for illustration, promotion, art, editorial, advertising, trade, or any other purpose whatsoever.”

“I hereby waive any right that I may have to inspect or approve the finished product or products and the advertising copy or other matter that may be used in connection with them or the use to which they may be applied.”

“I hereby release, discharge, and agree to hold harmless Photographer, his/her heirs, legal representatives, and assigns, and all persons acting under his/her permission or authority or those for whom he/she is acting, from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced in the taking of such photographs or in any subsequent processing of them, as well as any publication of them, including without limitation any claims for libel or violation of any right of publicity or privacy.”

“ I hereby warrant that I am of full age and have the right to contract in my own name. I have read the above authorization, release, and agreement, prior to its execution, and I am fully familiar with the contents of this document. This document shall be binding upon me and my heirs, legal representatives, and assigns.”

Wow. That sure is a mouthful — and it bestows onto the photographer (and his/her legal successors!) pretty much the right to do with the photographs of that model whatever he/she wants, without the model having a legal recourse. Even if he/she does not like what the photographs are being used for! Clearly the above is a release that is completely tilted in the photographer’s favor.

It is important to understand that model releases are, like license agreements, negotiable. Highly successful models, especially those with seasoned agents, will never agree to a release as all-encompassing as the above. Like photographers, they will be very clear as to how their likeness in photographs may be used, by whom, in what form/medium, for how long, etc.

But what if you don’t intend on publishing a photograph with a recognizable model? There are some exceptions that protect the photographer in specific use cases (like editorial use, e.g. use of a photograph including a recognizable model as part of a news story; or “fine art” exhibitions) even without a release. As a general rule, however, I recommend not to publish any photographs with recognizable people publicly (that includes posting to ‘PUBLIC’ on Facebook!) without a model release. Even though you may have published/posted said photograph as part of a “news” story or as an art display, you may still be liable if somebody else uses your photograph on a Web site, or in an ad that the person recognizable in the picture objects to!

License Agreement

Let’s now walk you through the key (IMO) parts of my own invoice/license agreement: I have my full license agreement (“Terms & Conditions”) printed on the back of my invoice. On the front (page 1) of that document, I detail the specifics of the job/engagement and line-item the cost. I also will stipulate the use terms there, e.g.:

USE: Exclusive license; Derivative work allowed; Print publications; Attribution required; Electronic Use: Web site advertising. PERIOD OF USE FROM 04/05/2016 TERMINATING 10/04/2016”

TERMS: Full payment is due upon receipt of this invoice. Final billing reflects actual, not estimated expenses, plus applicable taxes. All fees and charges in this invoice are for the service(s) and/or licensing described above. Fees for licensing of additional available rights will be quoted upon request. Interest at the rate of 1.5% per month shall be due on all sums not paid within 30 days of this invoice. Please make checks payable to ‘Luxludus Media’”

At the bottom of page 1, I have the following text:

“RIGHTS LICENSED ONLY UPON FULL PAYMENT OF TOTAL BILLING AND SUBJECT TO TERMS AND CONDITIONS ON REVERSE”

Page 2 (backside) of my invoice then starts:

“THE RIGHT TO REPRODUCE OR USE ANY IMAGE IS SUBJECT TO EACH AND EVERY OF THE FOLLOWING TERMS AND CONDITIONS”

Let’s stop here and look at what we have so far. The USE section above clearly defines what “use” of my copyrighted material the client is buying. It also stipulates the timeframe these use rights are being granted for (in the example above essentially six months, starting 05 April 2016.) The more specific this section, the better!

Next section briefly describes the payment conditions, and sets forth how non-payment will accrue interest. Keep in mind, you can “generously” wave the interest if needed…

The final section at the bottom of page 1 is important: It essentially puts the client on notice that the use rights are only bestowed (according to the agreed upon terms above on page 1) once full payment has been received, and that said use rights are subject to the “Terms & Conditions” on the reverse side (page 2). This ensures that the client cannot claim ‘ignorance’ of said terms in the future…

Now on to page 2 — I will only discuss the most important sections here.

“1. DEFINITIONS: This Agreement is by and between Alain Zarinelli/Luxludus Media (“Licensor”) and the “Client” named on the front of this Agreement. “Image(s)” means the visual and/or other forms of film, prints, slides, chromes, and any other visual materials in any format including digital information supplied by Licensor to Client. Licensor is the sole creator of the Image(s). “Service(s)” means the photography and/or related digital or other related services described on the front of this Agreement that Client is specifically commissioning Licensor to perform pursuant to this Agreement. “Transmit” or “Transmission” means distribution by any device or process whereby an Image or copy of same, is fixed beyond the place from which it was sent. “Copyright Management Information” means the name and other identifying information of Licensor, terms and conditions for uses of the Images, and such other information that Licensor may prescribe.”

This first section just makes sure both the client and the photographer are “in sync” as to what the various terms used in the agreement mean.

“5. CLIENT APPROVAL: Client is responsible or having its authorized representative present during all “shooting” and other appropriate phases of the Service(s) to approve Licensor’s interpretation of the Service(s). If no representative is present, Licensor’s interpretation shall be deemed as “accepted”. Client shall be bound by all approvals and job changes made by Client’s representatives.”

This section ensures that there will be no dispute later on about what services and work products have been delivered, and how.

“8. LIMITATION OF LIABILITY AND INDEMNITY: Even if Client’s exclusive remedy fails of its essential purpose, Licensor’s entire liability shall in no event exceed the license fee paid to Licensor. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR GENERAL, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING FROM THIS AGREEMENT, THE SERVICE(S), THE IMAGE(S) OR ANY ACTS OR OMISSIONS OF LICENSOR. Client shall indemnify, defend and hold Licensor and Licensor’s representatives harmless from any and all claims, liabilities, damages, and expenses of any nature whatsoever, including actual attorneys’ fees, costs of investigation, court costs and any other expenses or costs arising from or relating to Client’s direct or indirect use of the Image(s) or in connection with Licensor’s reliance on any representations, instructions, information, or materials provided or approved by Client.”

This is a most important section! Make sure you limit your liability…

“9. RIGHTS LICENSED: The licensed rights are transferred only upon: (a) Client’s acceptance of all terms contained in this Agreement, (b) Licensor’s receipt of full payment, and © the use of proper copyright notice and other Copyright Management Information requested or used by Licensor in connection with the Image(s). Licensor is willing to license the Image(s) to Client only upon the condition that Client accepts all of the terms of this Agreement. Unless otherwise specifically stated on the front of this Agreement, all licenses are non-exclusive, the duration of any license is one year from the date of Licensor’s invoice and is for English language use in the United States of America only. Licensor reserves all rights in the Image(s) of every kind and nature, including, without limitation, copyright, electronic publishing and use rights, in any and all media, throughout the world, now existing and yet unknown, that are not specifically licensed or transferred by this Agreement. No license is valid unless signed by Licensor. This Agreement may not be assigned or transferred without the prior written consent of Licensor and provided that the assignee or transferee agrees in writing to be bound by all of the terms, conditions, and obligations of this Agreement. Any voluntary assignment or assignments by operation of law of any rights or obligations of Client shall be deemed a default under this Agreement allowing Licensor to exercise all remedies including, without limitation, terminating this Agreement, the right to all net worth or financial information of any assignee and the fullest extent of adequate assurances of future performance. Upon request by Licensor Client shall provide Licensor with a full and complete disclosure of any and all uses of each Image and provide Licensor with two (2) copies, without charge, of each and every use of each Image.”

Besides section 8, this is the most important section of the agreement. It outlines the specific terms for how the license is to be used, and for how long (unless modified on page 1), etc. If you have no other terms, you should always have sections 8 and 9 (or similar!)

Like with any “legal” type documents, make sure you have each party execute these documents, and keep a physical copy for your records. I recommend using physical documents, because it will be much easier to prove non-tampering than with an electronic document. I encourage you to seek the assistance of an attorney to create your own “invoice and terms” — specific local regulations or other legal details could otherwise create a lot of headaches later on.