Woman walks into a brand photoshoot. Photographer shoots her (with the camera, of course). Woman later sees her images used in an ad promoting photographer’s services.
Is there an issue?
The copyright vs right of publicity issue is one iconic rapper Jay-Z seeks to address in his lawsuit against photographer Jonathan Mannion. According to Complex Magazine, Jay-Z alleges Mannion is exploiting his likeness without his permission by selling and licensing images he took of the rapper. He wants the court to order Mannion to stop using his images without permission, and monetary damages based on the revenue Mannion earned from using his likeness.
Mannion’s attorney represented released a statement that his client believes the First Amendment protects his ability to sell fine art prints of his copyrighted works.
The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
While Mannion sees this as a First Amendment issue, it more likely boils down to copyright vs. the right of publicity.
Copyrights protect original work that is in a fixed tangible form. This includes photographs. The copyright owner is the person who brings it to life, not the person who commissioned it. This is true unless the person bringing the work to life is an employee creating the work in the scope of their employment or if the commissioned work falls into one of these nine categories:
- as a contribution to a collective work,
- as a part of a motion picture or other audiovisual work,
- as a translation,
- as a supplementary work,
- as a compilation,
- as an instructional text,
- as a test,
- as answer material for a test, or
- as an atlas.
For most entrepreneurs, your commissioned work does not fall into these categories; therefore, the copyright belongs to the contractor. The copyright can be assigned through a written agreement. The beauty of owning the copyright is that it allows the owner to six exclusive rights as it relates to the work.
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
These rights mean the copyright owner has the sole right to sell, license, perform, or display the work, with a few exceptions.
So naturally, one would assume if they owned the rights to an image, they wouldn’t need permission to sell that image or license it to others.
What if that image includes a person?
In most states, we as a people have a right to prevent people from using our likeness for commercial purposes. It’s known as the right of publicity. You don’t have to register it anywhere. It’s a right that you inertially have. It’s not reserved for just your physical appearance. It covers your name, voice, and any characteristics that identify you. Right of publicity is not federal like trademarks and copyrights. This means that the laws vary from state to state.
Past examples of right of publicity include:
- Facebook sued by some of its users who found out their names and profile pictures were being used for advertising Facebook’s services without their permission.
- Bette Milder successfully sued the Ford Motor Company for imitating her voice in a commercial. It was the first time anyone had won a right of publicity case for anything other than the name of likeness. The court found that when a distinctive voice of a professional singer is widely known and deliberately imitated to sell a product, that person should be compensated.
- EA Sports makers of NCAA sports games were sued by NCAA player Ed O’ Bannon, former UCLA basketball player, for using his and other players’ likeness without their permission in 2014. In this case, EA Sports paid everyone but the players. The NCAA licensed their name, the schools license the use of their name, jerseys, logos, and stadiums, but the players got nada. The players won their lawsuit, and EA Sports cut the check.
While the right of publicity allows people to prevent others from exploiting their likeness for commercial purposes, courts have found that photographers can take pictures and sell them to news publications to be used for editorial purposes. In these instances, the courts balance a person’s right of publicity against the public’s interest.
Jay-Z’s suing Jonathan Mannion for using his likeness is one example of how copyrights and right of publicity can overlap, but what about the reverse? In 2019, model Gigi Hadid posted a picture of herself on her Instagram account. The photographer later sued her for copyright infringement, claiming she posted the picture without his consent.
As a business owner, this is why contracts are so important. A simple clause in your service agreement could address the issue of whether the picture that was taken can be used in an ad to promote the artist services, if you are allowed to use the images for commercial purposes, or if your images could one day end up in a coffee table book.
Bottom line, stop assuming you have the right to make the moves you make in business. Speak with an attorney to learn what the law is and to address your potential liabilities.
P.S. Our Genius Insiders do exactly this. They can schedule consultations and document reviews to avoid legal drama like the one photographer Jonathan Mannion finds himself in. Learn more.