Photographs in the News

[DEMDeepEllumMusic]

Ok yesterday they had two stories about people in the public having their images being used in ad campaings. One was for a for profit firm and the other was for a non-profit but neither person in the ads gave consent for their images to be used. No mention was made in either story that the PHOTOGRAPHERS were probably not paid for the use of their images either.

So who would have a better chance in court the Photographers or the Subjects if they go after the offenders?

Legally I think the Photographers though one of them would be hard to determine since the subject was added into a collage type piece with others-which probably were photography violations also- while the other would be pretty easy to figure out who took the photo.

The argument on the subjects is that they are public figures and at least one of the photos was taken in a public place but then we get into commercial use technicalities.

[Tom]

Depends who the subject is.

If an ad campaign uses a pic from a photographer without their permission, it should be a slam dunk win copyright infringement.

[DEMDeepEllumMusic]

I'm talking about the President and First Lady, he being put on a huge billboard at Times Square for a coat maker (he happened to be wearing their product when he visited the Great Wall of China) and she was on an ad for a non-profit with 3 other women that was posted in D.C. at two bus stops and at least one car wrap.

BTW the ad in Times Square is supposed to be up for 2 weeks because they say that is how long it will take them to remove it, right like they couldn't drape it in a couple hours!

But on two national news telecasts not one mention was made of the violations of the photo COPYRIGHTS, or of the rights of the photographers.

Hope the shooter of the Presidents pic at least gets some $$$ out of them!

[jeffkohn]

The photographer's copyright and the subject's right of publicity are two completely separate issues. One has nothing to do with the other. Regardless of whether the photographer was paid, you also need a release/consent from the subject before you can use someone's likeness for promotional purposes (and being a non-profit like PETA doesn't get you off the hook - it's still commercial advertising).

Frankly what these companies did was stupid, they should have known better. And in the case of such high-profile people they had to know this wasn't going to go unnoticed.

[jeffkohn]

Originally Posted by Thomas Campbell

Depends who the subject is.

If an ad campaign uses a pic from a photographer without their permission, it should be a slam dunk win copyright infringement.

True, but unless the image was registered beforehand you can't claim much in damages - only lost revenue which in most cases will be less than the lawyer fees.

In the case of the Barack image, I wouldn't be surprised if it's an editorial stock image. They have have licensed it from a stock agency, but the license would have only been for editorial use unless the image was released (which I'm sure it wasn't).

[DEMDeepEllumMusic]

Well the revenue ? is a big one since shooting for a double billboard in Times Square would be a pretty high fee shoot.

Like you mentioned it may be an Editorial stock image but it shure wasn't used in that way, I wonder what their house legal rep is thinking? If they even ran it by them!
Weatherproof in Controversy Over Obama Billboard - NYTimes.com
fills in some info, they bought the image from AP so hopefully the photographer got some $$ for this.

[Dobick]

Originally Posted by jeffkohn

True, but unless the image was registered beforehand you can't claim much in damages - only lost revenue which in most cases will be less than the lawyer fees.

In the case of the Barack image, I wouldn't be surprised if it's an editorial stock image. They have have licensed it from a stock agency, but the license would have only been for editorial use unless the image was released (which I'm sure it wasn't).

You have up to 90 days to register the image, so in theory if the infringement takes place 30 days after the image was taken, you still have 60 more days to register the image for full protection.

[jeffkohn]

Originally Posted by Dobick

You have up to 90 days to register the image, so in theory if the infringement takes place 30 days after the image was taken, you still have 60 more days to register the image for full protection.

The infringement must occur after registration or you can't recover statutory damages and legal fees.

See Advantages of Copyright Registration for instance.

[Dobick]

from page 7 fourth bullet point http://www.copyright.gov/circs/circ1.pdf

• If registration is made within three months after publication
of the work or prior to an infringement of the work,
statutory damages and attorney’s fees will be available to
the copyright owner in court actions. Otherwise, only an
award of actual damages and profits is available to the
copyright owner.

so even if infringement occurs on the second day of publication, you still have 3 months from date of publication to register the image to be afforded full protection under the law

[janikphoto]

I don't know that the photographers weren't paid. Where did you see that stated? And, even if the images weren't copyrighted, the photog can still receive damages worth the fair use value - they just can't receive the $150,000 or whatever per violation for copyright violation. A billboard in times square HAS to be some serious change, even without a copyright!!!