Who’s Got the Rights? It Might Not Be You

JENNY WAS BUSY manipulating one of the latest photos her agency had purchased from a photographer. Working diligently at the computer, she sat back and was proud no one would recognize the original. Jenny had created her own work of art. On another photo she barely made any changes, even though her company had not gotten a model release, as Jenny was certain the model was unrecognizable.

Her co-worker Mike would now take the two photos and put them on the Internet. Of course, neither of these industrious folks had thought to check whether they had the right to change the lone photo or display either of them through electronic media.

They were about to break three laws that could earn them, and/or their company, time answering to a judge, plaintiff and jury in a federal court, plus fines of up to $100,000 per infraction.

Who owns the rights to a photograph or any type of art? How can it be used? How much can it be manipulated? Once manipulated, is it still owned by the original author/artist? What rights do models and stylists have?

In speaking with many people in the industry, it’s obvious few of us are clear on exactly what rights we do and don’t have when it comes to use and reproduction of art. This topic is so important that we have broken it into a two-part miniseries.

Nothing is as simple as it once was. Familiar with the Broadway play “Rent”? A consultant who advised on repertoire sued, as she felt she had the rights to the way she was portrayed in the play. She lost.

Think you’re covered if you don’t get a release because you don’t show the face of a model? A woman whose nude derriere showed in a photo sued, and won, as she was able to prove it was recognizable.

The artist who created the Vietnam war memorial (not the wall, the one with the figures) sued when his art was used on T-shirts, as this was not the sculpture’s original intent. He won.

As Bill Hart, copyright expert at the national law firm Paul, Hastings, Janofsky & Walker, says: “Unless the rights are clear, the courts will assume that the right has not been granted. The courts will usually favor the copyright owner. At the same time, the courts will try to give fair meaning to what the parties meant at the time of their agreement. For instance, if the VCR did not exist at the time the contract was made, but the contract gives all rights, they might allow VCR rights.”

A recent case held that a publisher, as the copyright holder of a collection in which certain copyrighted articles appeared, was permitted to post those articles on the Internet even though the authors never granted “electronic” rights to the publisher.

The bottom line here is as it has always been: When you buy art, be absolutely clear about the rights you have to use it.

Bill has a great analogy: If you lend your car to someone to go to the grocery store and then that person drives it to California, the rights you extended have been exceeded. This is not unlike exceeding the rights you’re entitled to when you buy a photo, art or model’s likeness.

The question of exceeding rights can be a matter of how the item is used and what is done to it. Putting a photo on the Internet, when you have obtained only print rights, is a clear no-no. Manipulating the work in such a way that it could be construed as a new work of art is somewhat less clear.

Many cases have come up relating to music. It is not considered legally OK to make a copy of an audio recording and then change it. This is a clue that altering any type of art probably means you should secure written permission to do so beforehand. If you do get the rights to change it, then more than likely whatever was changed would belong to the manipulator.

According to Bob Sherman, a partner at Paul, Hastings, Janofsky & Walker, “The computer manipulator would have rights to the new matter so long as use of the underlying matter was not considered infringing.”

However, given the global nature of the Internet, be aware that laws in other countries may be more stringent. For instance, in France there are “moral rights” that prevent “mutilation of works of art.”

In our next issue, we’ll discuss how to manage the costs involved in making sure you have the “right” rights.