Photographing
Copyrighted Works





         "The case of...Sue-Happy Sue" exemplifies the pitfalls a photobuyer can avoid by being up to speed on intellectual property regulations, especially when a picture is used for commercial purposes. The scenario in brief: a
 
map company published a photo by a photographer featuring a statue of a famous baseball player in front of a museum. The photographer and the museum granted permission to the map company. The sculptor, "Sue," charged copyright infringement, but was proven wrong when it was discovered she had expressly given the museum unrestricted usage rights to her sculpture. The suit was dropped - but not before the map was pulled from circulation and the parties ran up substantial legal bills, leaving the photobuyer with egg on his face.

         If you were the photobuyer, what could you have done to prevent this mess? Arm yourself with knowledge, that's what. Basic facts you should know:

         1) You're in the intellectual property business. The slogan, "When it's created, it's copyrighted," is true for artworks that are in photographs. If a photo of a work of art is going to be used for commercial purposes - the user is going to need to get permission, unless the work is in the public domain. Sue's sculpture was not public domain, and the map would be considered commercial use, unlike use in a book or magazine as illustration. (Even this latter usage can in individual cases require permission for usage - this is still a disputed area.)

         2) Visual art eligible for copyright protection includes nearly every category imaginable: sculpture, paintings, sketches, multimedia installations, computer graphics, videos, works of architecture (but only those created on or after December 1, 1990), and, of course, photographs. It doesn't matter if the artist is dead, nor if the art is in a public place.

         3) Copyright in the U.S. lasts 75 years from first publication (or, for works created on or after January 1, 1978, 50 years after the death of the creator). It may be hard to determine a work of art's date of first publication, so err on the safe side by considering the likely date of creation.

         4) The pamphlet "Copyright Basics," and many other relevant publications, are available free from the Copyright Office of the Library of Congress, Washington, DC 20559-6000, tel. (202) 707-3000. You can also get these pamphlets from their website, . Or you can pay $5.50 for my booklet, "Copyright and Permissions. What Every Writer and Editor Should Know," available from the Editorial Freelancers Association, 71 W 23 St, NY 10010, tel (212) 929-5400, fax (212) 929-5439.

         5) Material not eligible for copyright may be protected under other laws, such as trademark, patent, privacy, and private property/trespassing statutes. That's why photobuyers are advised to get model and property releases and/or permission for use whenever they use an image for commercial purposes. (Non-commercial uses such as in
books, newspapers, TV news, and magazines generally do not need a release.)

Some photographers have a clause in their standard usage contracts with photobuyers, stating that no releases are implied unless expressly requested and furnished to the publisher, and that the publisher is responsible for clearing any necessary copyrights. Photobuyers, who determine each instance of usage, in this case are the responsible parties here, not the photographers.

         One thing the photographer could have done in the Sue scenario mentioned above was to ask the museum (preferably in writing with a copy to the publisher) about the copyright status of the sculpture - and about the famous baseball player, whose name and likeness may be protected under privacy law. Since the museum is dedicated to the athlete, chances are that, like Sue, the athlete granted unrestricted permission to use his name and likeness, but wouldn't you rather know this up front? When in doubt, don't be embarrassed to ask the source of the image or the photographer. You'll be a lot more embarrassed if an intellectual property issue arises later on. By raising a query in a timely manner, you'll save yourself a lot of grief.

Elsa Peterson, based in Norwalk, CT, is a freelance editor specializing in college textbook development. Email: epltd@earthlink.net


           


           

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