Releases and Licenses and Lawsuits, Oh My!

by Stuart J. Whitmore
© 2004 by Johnny Pixel Productions, Inc.

Introduction

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; ..."
Article I, Section 8, Constitution of the United States of America

Such a humble beginning for "intellectual property" protections in the United States! Those who wrote the Constitution could never have envisioned MP3s, peer-to-peer trading, the apparent attempt by Disney to forever monetize Mickey Mouse by extending copyrights indefinitely, the DMCA, One-Click patents, and the many other modern issues that all arise from trying to ensure that "Authors and Inventors" are compensated for their creativity (for "limited Times," I would hasten to emphasize).

When you're dealing with videos, still photos, sound recordings, computer animations, and other similar works, you can expect, eventually, to need to consider the legal ramifications of what you are doing, or what others are doing with your creations. Hopefuly you won't be pondering that while sitting in court! But that is a distinct possibility, and it is one that you should take seriously, and avoid if at all possible.

Before I proceed further, I must make it perfectly clear:

I am not a lawyer. This document is not legal advice. For legal consultation, consult a qualified lawyer.

In a nutshell, this article shares my views and understandings of copyrights and other legal matters that you may have to consider regarding your creative works. I am not qualified to give you legal advice; however, I am qualified to share my opinions, and to clarify that these opinions are based on many years of reading as many authoritative sources as I could find and for which I could take the time to read. This has been necessary for a variety of "roles" I have played in life, including Webmaster, fiction author, software programmer, photographer, digital artist, and more. But do my opinions come close to legal advice? Not a chance!

Overview

In this article, I am going to focus on two specific concepts: Copyrights and Privacy Rights. These concepts are very different, but they are often confused when discussing a "model release" and similar documents. It is important to see how these are different. Copyrights provide control over how a creative product is used. Privacy rights provide control over how a person (or property) is exposed to the public. A couple examples might help clarify the difference:

If you took a photo one day, and you later opened a magazine and found that exact photo, but you never gave anyone permission to publish it, then the publisher violated your copyright.

If someone took a photo of you one day, and you later opened a magazine and found that exact photo, your privacy rights might have been violated. (It depends on circumstances, like where you were when the photo was taken, and how the photo is being used -- for example, if you take part in a political protest in public, and find a photo of yourself at that event in a news magazine as part of their coverage of the event, then you probably won't be able to claim your privacy rights were violated.)

Copyrights and Licenses

As soon as you write down a story, commit a photo to film or digital storage, or capture a video, your creative product is protected by copyright law. (It is not necessary to register your copyright, just as it's not necessary to avoid using your hair dryer while sitting in the bath, but it might be a very good idea.) What you do next is almost entirely up to you; however, see below regarding Releases.

Although there is now much more to copyright law than what is written in the US Constitution, the basic idea is there: You have the "exclusive Right" to your creative work. This means you can put it on the shelf to collect dust, like the novels I wrote in secondary school. Or you can donate it to the public domain, like I've done with various software products and photographs. Or you can sell various rights to others, like the First North American Serial Rights I tried (without success) to sell to various science fiction/fantasy magazines for some of my short stories. Or you can post it online with a license that gives away various rights to your work, such as the Creative Commons Attribution-NoDerivs License 2.0 that applies to this article. This is not meant to be a comprehensive list of what you can do, it's only intended to show that you have a great deal of power over your creative works, and you can share, sell, or keep to yourself all or part of those rights.

Sounds clear-cut, right? Well, it's not -- copyright law is very complex, which is awfully good news for copyright lawyers. And it's awfully bad news for non-lawyers trying to understand the law. There are a number of assumptions that can be made which are not supported by, or are in direct violation of, the laws and treaties that exist today. Let's take a look at a few of them that are relevant to videography and related works.

I'm in the photo, so I own some or all of the rights to the photo.
Unless there are additional factors involved, this is not true. The photographer or videographer (or his/her employer) owns the copyright. You do have rights regarding the photo or video, but not copyright. See the section on Releases.

I paid for the photos, so I own the copyright.
Again, unless thare are additional factors involved, this is not true. Take note, parents with school photos of their children, and anyone thinking about copying their wedding photos! Here again, the copyright is owned by the photographer or videographer (or his/her employer) unless other factors are involved.

I paid for the work, thus it is a "work for hire."
If you are going to defend your claim to the copyright of a photo or video that you did not take, based on it being a "work for hire," then I hope you have more than just an assumption to rely on! Hint: A written agreement regarding the work-for-hire arrangement (which could be part of an employment agreement) will be much more meaningful than a mere assumption which is only based on having written a check to somebody. The amount you paid could reasonably be assumed to cover other facets like the time, materials, and skill of the photographer or videographer, and not copyright ownership of the product.

Releases (Model, Property, etc.)

It is quite possible to own the copyright to a photo yet not be able to do what you want with the photo because the photo shows a person, and you do not have a model (or "subject") release signed by that person. I won't claim to know all of the circumstances in which you will or will not need a release for people and/or property appearing in your creative works, and you can find considerable debate about it online among non-lawyer types. If you don't have the resources to hire a lawyer, "safe" is better than "sorry" -- get a release! This includes for any person who is recognizable, as well as private property, and even some public property. When in doubt, get a release!

If you aren't able to get a release, and you have any concerns about whether you can use your photo or video in a certain way, then it's time to check with a competent lawyer (probably not the one that specializes in DUI or divorce cases). And no, I'm not being paid by any lawyers to keep recommending that you contact one!

A release is a legal agreement, and as such it must be legally defensible to be worth taking the time to get it. For example, if you need a release from a minor, then it is the minor's parent or legal guardian who must sign the release, because the minor cannot do so in a legally binding way. It would not hurt to verify, and document proof of, the identity of the signing party, since people don't always tell the truth. Since the age of majority may vary from one location to another, it is your responsibility to know and follow the law applicable to your location. Also, it doesn't hurt to have a witness sign the release (whether it is for a minor or not), to verify that the model/subject or his/her lawful representative was not signing under duress. (That is, that you weren't holding a gun to them, etc.).

Releases are needed for property in some cases as well. The above part about ensuring the legal defensiblity of the document still applies, just replace "property owner" for "model/subject."

Putting It All Together

These separate legal issues must both be dealt with when you are shooting video or otherwise creating a product that involves actors, models, etc. Taking the time and precaution during a shoot to get signed releases from everyone appearing, and from owners of property appearing, in the photo or video will save a lot of headaches later. Carefully protecting your copyright ownership of your creative product will also prevent or minimize troubles further on down the road. This doesn't mean you have to lock down your work with encryption and charge a fee to everyone who might want to see it, but (for example) if you want to share it online at no cost to others, you should at least specify the terms -- i.e., the license -- under which they may access and use your work.

As an example of these concepts, consider a photo shoot I once did with a model named Jamie, who was 17 years old at the time. I met with her and her mother at a local park, and we shot a set of digital stills and a set of 35mm film stills. After the shoot, I obtained a model release signed by Jamie's mother, which allowed me to use the photos from the shoot. I also provided them with a copyright license that allowed them to use the photos from the shoot. Afterward, photos from the shoot appeared in both my portfolio and Jamie's portfolio on the OneModelPlace.com site. This was legal for us both to do, because a) I had a release and b) she had a license.

Other, Non-Addressed Issues

There are many other issues to consider, but I will not address them here because I'm not well-versed enough in them, and also it might make this article too long for comfortable online reading. As an exercise for the reader, I will leave you to research (if you wish) the following topics:

1. Requirements for compensation to the model for validity of a release
2. Trademarks appearing in photos and videos
3. Model records management for "adult" photos and videos
4. Legal protection of architectural designs
5. SAG and similar organizations, and working with their members

Remember: Learn what you can on your own for non-specific situations, but when you have a specific legal matter to deal with, your safest bet is to work with a competent lawyer!

This work is licensed under a Creative Commons License.