Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, the model had signed a contract with a fashion company, as well as a model release with a photographer. We discussed the reasons why it’s important that a photographer insists upon a model release, which should delineate the nature of the use, the purpose of the use, and the duration of the use. Doing so defines the relationship between the parties, and greatly reduces liability should the use of the image come into question later on.
The relationship between the model and the fashion company and the fashion company and the photographer, are complicating the situation at hand. Since the model was expressly chosen by the company for this fashion campaign, do her rights change? Can the company unilaterally determine how they want to use the image, or does the photographer own the copyright and sole discretion for use of the image? Does the model have any right to determine that they cease to use her image since it’s being used in a manner she didn’t agree to? What are the legal avenues for either party in this instance?
Who Owns the Copyright in the Images?
Generally speaking, a creator of an artistic work owns the copyright in a work, as defined by the Copyright Act, which states that the person who translates an idea into a “fixed, tangible form of expression and as a matter of law, copyright ownership vests initially in the author or authors of the work.” As the owner of a copyright, an author enjoys the benefit of use and has the sole power to license, benefit from, and share his artistic work. But the Copyright Act recognizes that there are some exceptions, and the Work-for-Hire exception is a problematic one for many commercial photographers.
A work-for-hire relationship exists when an author has been hired expressly by an employer to create a work – and even though the production of the work is ultimately the author’s intellectual property, the employer becomes the owner of the end product. As such, this would mean that the benefits inherent to ownership of a copyright would transfer to the author’s employer, and the author would forfeit the right to claim copyright ownership on that particular work.
But defining the employer relationship is often difficult to do. Strictly speaking, a person who receives a salary and has a specific contract with a company is considered an employee. But many photographers, models, and other creative professionals tend to work on a freelance basis for multiple companies, rather than having a fixed employment contract with any one company. In our example, the company hired the model and photographer for one particular job – this would render each professional an independent contractor and not an employee, since they were hired for a specific job under specific terms.
The second provision of the Copyright Act states that a creation by a non-employee / independent contractor is considered a work made for hire only if the work is specially commissioned, and an agreement is made between the parties that states it will be a work made for hire. Additionally, the work must fall into one of nine categories, defined as:
- Contribution to a collective work
- Part of a motion picture or other audiovisual work
- Supplementary work
- Instructional text
- Test or answer material for a test
Applying those guidelines to our own example, the photographer and the model were each hired for a specially commissioned project, i.e. a particular fashion campaign. But would the work created fall into one of the nine categories outlined above? Not likely.
Why The Photographer’s Photo Isn’t a Work-for-Hire
All of the nine categories in the work-for-hire statute have something in common – in each of these examples, there’s a clear directive that the work is being specially commissioned to add to an existing work. The authors in each of these instances would contribute their intellectual property to enhance a pre-existing work. But in our case, the photographer wasn’t hired to add to any specific compilation or collective body of advertisements – he was in fact hired to create them from scratch. As such, it would be hard to argue that his intellectual property constitutes a work for hire. And as we’ve discussed previously on Art Law Journal, there are other factors involved that would make it difficult to prove that this would be considered a work-for-hire, which turn on the photographer’s independent contractor status with the company.
So, even if our photographer signed a contract with the company that had a work-for-hire provision, it may not necessarily hold in a court of law considering the work in question does not fall within one of the specific categories. So, if the company is continuing to use the photographer’s image in a manner not originally agreed upon by him, then he likely has to option to ask the company to terminate the use of the image, and can pursue legal action should the company refuse.
A Model’s Right to Publicity
Our model may also have some recourse concerning the continued use of her image beyond the length of her contract. As we discussed in our previous post, the model signed a model release with the photographer, which should have specified the nature, purpose, and duration of the use. It also assigned the copyright in the photo to the photographer, who thereby obtained the rights to benefit from the photo. If the photographer were using the photo in a manner not previously agreed upon, then the model would likely have grounds to sue the photographer.
But what about the agreement the model signed with the company to produce the photo? Does she have a right to ask the company to stop using her image?
Considering the model’s right of publicity, she likely does. The right of publicity is codified in state law, and many states have adopted statutes that uphold a person’s right of publicity, though they do vary from state to state. The right of publicity is the right to control the commercial exploitation of a person’s name, image or persona. The unauthorized use of an image would infringe on a person’s right of publicity, but only if the image is being used for commercial purposes (i.e. trade or advertising uses). The use of the name, likeness or persona for news, information, or public interest purposes is not a violation of the right of publicity. So for example, a celebrity’s photo in a newspaper probably wouldn’t constitute an infringement on their right of privacy, but it would if that celebrity’s image was being used to sell products without her consent.
In this instance, our model did consent to the use of her image for the advertising. But does her right to publicity automatically disappear with her consent? Not exactly. Courts have ruled that the use of the image must not exceed the scope of the consent. In Miller v. Anheuser Busch, the court awarded damages to the plaintiff because the defendant had used the image beyond the scope of time the plaintiff had consented to. Aligning perfectly with our example here, it seems our model has the option to ask the company to terminate use, and seek legal action if they don’t.
Have questions or comments? Leave them in the comment area below. If you have any other legal questions, just email me our editor Steve Schlackman at [email protected].
Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.