Features
Mr. Stock Smarty Pants answers questions about copyright and publicity rights
Dear Mr. Stock Smarty Pants: I have read several of your responses to readers questions. They are both illuminating and informative. Tried searching a number of keywords on your site “musician”, “rock and roll”, “concert” etc.. Could not find any reference to those topics. I have a couple of quick questions. My company has acquired hundreds if not thousands of very good photos of bands and rock stars performing live. These photos were taken over several years. The photographer has since died. Both he and his wife were killed in a car accident in which their two children survived. We are trying to find a way to monetize the collection by selling copies or approaching an agency so proceeds can go to the kids who are living with family members.
As altruistic as that may sound we understand there could be legal issues with this. What we would like to know is, what are the rules? Does the photographer have the copyright on the photos? Can they be sold as prints using the artists or bands name without getting approval or their consent? Would a stock photo agency take these photographs?
Appreciate any response. Thanks Bob M
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Dear Bob M: First of all, I have to praise your astute observation that my columns are “illuminating and informative.” Obviously, you have very good taste and an IQ that significantly surpasses that of the average About The Image reader.
The issues you raise are significant for a number of reasons as they address some common misconceptions among the unwashed masses about what is and what is not permissible regarding the use of pictures.
Let’s start with the easiest concern to grapple with, and I’ll do it by asking you a question: When you hold a photographic print in your hand, do you own it? Assuming you didn’t steal it (and you seem like a nice, honest fellow, Bob), the answer is YES…you own that particular print that is resting in your hand. But, unless you created the image itself, that’s ALL you own…the print, not the copyright to the image, nor the right to make duplicates of it. Think about it: if you bought an original print of Ansel Adams famous “Moonrise” image, you’d own that particular copy of that picture, but you wouldn’t own a copyright to that image (since you are not the photographer who took it), and therefore you would not have any right to reproduce or distribute it. Remember: under American copyright law, a photographer owns the copyright to his image as soon as he presses the shutter, regardless of whether he formally registers that copyright in Washington, D.C., or not. You could, of course, turn around and sell your Adams print on the fine art market, perhaps even at an auction, but that’s a very different matter than the venture you are contemplating, simplified by the fact that Ansel’s picture doesn’t include those pesky subjects known as “people.”
So, rule number 1: just because you own a print doesn’t give you any copyright, reproduction or distribution rights to that image unless you have specifically obtained those rights from the copyright holder in writing.
Hey, wait as minute, you might say: what about “old” pictures…the ones where the chances are pretty good that the photographer is dead, senile and living in an old folks’ home, or retired and living in Paraguay and therefore unlikely to ever see his images reproduced. Sorry…you’re still out of luck. Under the terms of the Sonny Bono Copyright Term Extension Act of 1998 (and, by the way, I’m not kidding…you DID know that Sonny Bono served in the US House of Representatives, right? That may be where old husbands of Cher go to die, so expect to see a “Vote for Gregg Allman” campaign coming soon), a photographer’s copyright is valid throughout his/her lifetime PLUS seventy years after death. If the photographer is still alive and sees his work reproduced without his permission, it’s called a copyright infringement, otherwise known, in more technical legal terms, as “deep doo-doo” for the infringer. And, if the photographer has left us for The Big Darkroom in the Sky, his copyright becomes part of his estate and is often controlled by relatives or, as is often the case with celebrities, some form of management company that tightly controls the use of the subject’s “image” and which makes its money by licensing pictures/reproduction rights of the dearly departed.
Rule number 2, therefore, is: photographers, like all mere mortals, pass away, but their copyrights live on, so don’t mess with their pictures (at least for 70 years after they kick the bucket anyway; after that, anything goes).
In your particular case, Bobby boy, it sounds like you might be able to get the photographer’s estate (most likely his heirs, the two surviving children) to give you permission to pursue your idea of licensing their father’s pictures. This would require them (or, if they are minors, their adult guardian) to make a written agreement with you for this express purpose and thus assigning you limited copyright in the images.
So far, so good.
The potential problem lies in the subject matter. You said the collection comprises images of “bands” and “rock stars.” This is a potential minefield. Remember what I said earlier about management companies controlling the “image” of their clients, whether alive or dead? You best believe it! If you were just licensing the images for editorial uses (which are intended to convey information, news, or educate) you probably wouldn’t have a problem. But, if you engage in any sort of commercial endeavor that incorporates the photos (and which could include selling prints, posters, greeting cards, etc.), you just might get one of those nice little “cease and desist” letters that managers like to send out when they get wind of somebody making money off their client without forwarding a significant piece of the action. That’s really just what it comes down to: if you’re profiting from the “image” of a “celebrity,” the person depicted, or his/her management, generally feels that a) you should get their permission to do so, and b) you better cough up a percentage of the resulting revenue. This all comes back to the area of law known as the “right of publicity” and the relevant statues vary from state to state.
And thus we arrive at Rule 3: famous people are often famous for being famously greedy, so if you sell pictures of them, make sure you can afford a good attorney to defend you when they start lobbing threats of a lawsuit your way.
Depending on the subject matter of your picture collection, as well as when/where the photos were taken, a picture library that specializes in this sort if imagery might be your best bet. That’s where professional art buyers would look for such material, and the sort of agency I mentioned already knows the ins and outs of dealing with the relevant legal issues. They’d certainly be able to tell you if it’s an idea worth pursuing or not. You might contact someone like Redfern’s Music Picture Library (http://www.redferns.com/) or Retna (http://www.retna.com/), both of which are well-established agencies with solid reputations in the picture business.
Admittedly I’ve given you a very cursory review of the issues you’ve raised. Copyright, as well as rights of both privacy and publicity, are complex subjects and not to be messed with by amateurs or the uneducated (and I mean that in a legal sense, of course, since you seem to have at least graduated from high school, Bob). To really get a handle on this stuff, I strongly recommend that you pick up a copy of “The Professional Photographer’s Legal Handbook” by Nancy E. Wolff. Nancy is one of the top intellectual property lawyers in the US and specializes in the picture industry…she’s really the “go-to” attorney on this stuff and her book, which was just published last year, is the best tome on the subject you’ll find (you can order it here: http://www.stockanswers.com/printresources/relativelynew.html).
So there you go, Bob…rock on!
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Mr. Stock Smarty Pants, a powerful yet frequently incarcerated figure in the global stock picture industry, answers your questions about the business of stock photography every other Monday (or whenever the mood strikes him) on About The Image. Although MSSP is constantly on the move around the world due to his innate sense of adventure, as well as a strong desire to avoid deportation, your question regarding anything about the stock photo business will be forwarded to him and, so long as Mr. Stock Smarty Pants is within reach of an Internet café, he will consider responding to you in an upcoming edition of About The Image. E-mail your questions to: . Oh, and MSSP categorically denies any affiliation whatsoever with the company called Stock Answers™ LLC.
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