IP, Technology & Data

Who owns a photograph? That’s the question that might be put before the courts in the US, after a model claimed that record label XL Recordings did not have permission to use a photo of her on the cover of Vampire Weekend’s most recent album Contra. You can see the photo here.

Ann Kirsten Kennis has brought an action for US$2m against the band, XL and the photographer who licensed the photo to XL, claiming that the photo is a polaroid taken by her mother, which must subsequently have made its way into the photographer’s hands after being in a batch of old polaroids donated to a charity shop. Ms Kennis claims that a signature purporting to be hers and consenting to the use of the photo must have been forged. XL Recordings has refused to comment pending sight of the court papers, but has said that “as is standard practice” it had licensed the photo under a licence agreement that contains “representations and warranties authorizing this use of the photo.”

No doubt this case will be settled before it gets to court, and we’ll never find out exactly what happened. However, the story does highlight the importance of ensuring that any use of photos taken by third parties is properly licensed.

Copyright in a photo
The copyright in a photo is usually owned by the photographer, as the creator of that work, and will remain so unless that copyright is transferred. Each print or digital image produced from the original negative (or digital file) is simply a derivative of that original, and will not in itself attract copyright.

Polaroids are interesting. There is only ever one print; the negative and the print are one and the same thing. This means that you can acquire physical ownership of the only manifestation of that photo (the Polaroid photo), but the copyright may still remain with the photographer (albeit he can do little to exploit that copyright unless he reserves a right of access to that print). The recent break-up of the world-famous Polaroid collection is a case in point.

Image rights
In addition to the copyright in the photo, the subject of the photo may also have rights. These are separate to copyright, but may take the form of a right of privacy or image right, and may impact on any proposed commercial use of a photograph of that person. The leading case on this involved Eddie Irvine and Talksport.

Some tips
Here are some things to consider when using photos taken by other people:

  • Make sure that you have a written licence agreement that covers your proposed use.
  • Ensure that the licence agreement contains representations and warranties from the licensor as to its right to grant the licence, together with an indemnity for third party infringement.
  • Just because a photo is on the Internet, does not mean that there is no copyright, or that it is free to use. It isn’t.
  • Photos on sites like Flickr may be offered for sharing on a creative commons licence. If so, then check the relevant licence terms for what you can do. They often prevent use for commercial purposes.
  • Acquiring physical ownership of a print of a photo (even the “original”) does not mean that you automatically own the copyright, or can reproduce it.
  • If the photograph is of a person, consider whether you need the consent of the individual to use that person’s image. This could take the form of a written release signed by the subject, or a representation from the licensor that the licensor has the subject’s permission.
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