"Common Misconceptions"

Transcript of an interview between Scott Shermann and Carolyn Wright
Author of the Photographers Legal Guide. (Information as of Oct 2007)

NOTE: This article if for guidance only, we will not be held responsible for any liability arising from acting upon this information. The information herein is only related to US Law, but is interesting from a UK standpoint, and in the ‘world’ of global media such as websites.

This article is designed to highlight some of the confusion that currently surrounds Photography and the Law, not as legal advice!

Question 1:
True or false: You do not need permission to photograph a work of art in a public area?

False! Sculptors / Artists have copyright in their work and can restrict derivative works, in just the same way as a photographer may choose not to allow someone to use their photographs in e.g. a movie, collage, magazine etc.

Specifically you could be in trouble if you make money from it!
Fair use of copyrighted work applies, e.g. if the image is for editorial use for example, or if the sculpture is small in the image, such as part of a cityscape.

Question 2:
True or False: A news organization may use your photo in a news story without your permission because it is fair use?

False, they cannot. Only a court of law as the final say, but in general things like Power Point presentations or Newspapers do not automatically become fair use because they are often 'for profit'

Question 3:
True of False: You need a model release to use a photo of a person on a book cover.

False: you would be advised to, but it has not been proven in court. If the cover tells a story or if the image is there for decoration then it is editorial use. If the cover implies an endorsement then that would be considered advertising and require a model release.

Question 4:
If you make money from a print it is a commercial use?

False: Fine art uses of photos are often deemed to be editorial uses. There must be no implication of endorsement or advertisement, this would not apply if you took a photo of a celebrity and made posters, in that case a court would be unlikely to believe that it was not a commercial venture.

Question 5:
You need a property release to use a photograph of a house for a commercial use?

False: The US law recognises rights of privacy for people not property. A house does not have its' privacy invaded if it is photographed. If you can take a picture from the street then there is no law to stop you using that image in advertising. but be aware about suggesting something about the people who may live in the house, that might be seen as an endorsement

Question 6:
You have no protection on your photographs until you register them as copyrighted?

False: in most countries you are protected the moment you press the shutter button. In the US, registering your photos gives you an additional degree of protection above what you 'get for free'

Question 7:
True or False, Statues on federal property (US) are in the public domain.

True: Any work of a government employee is in the public domain (In general if the government paid for it), but there are some rare exceptions called the government works exception, this includes the Vietnam women’s war memorial. Other countries may have different laws.

Question 8:
True or False, Photographs of works in the public domain are also in the public domain.

False, If you photograph something you add your own creative talent to create the photo, and that talent is protected by your copyright.

Question 9:
If a stock agency requires a model release then it must be legally required?

False: But most agencies just cover their own backs, so they obtain model releases where they are not necessarily needed. It is none-the-less a good idea to obtain a model release unless you are certain it is not necessary.

Question 10:
True or false: If you take a photograph while working for an employer then the copyright of the photograph always belongs to your employer.

False: It depends on if it is in your job description, generally if it is not part of your job to take pictures then if you happen to be working while you take a picture then you will probably still hold the copyright.

“Just because you sell or buy a photograph does not make it a commercial use, if you use that image on an advertisement then that is commercial use.”

 

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