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I've just noticed that a stock agency is posting celebrity pictures by the thousand, many of which are obviously not model released. How does this work? We went over this before and in the end I think I learned that when it came to direct sales celebrities owned the right to their image unless it was artistically modified - straight photos are OK for editorial usage but not for print sales.
So how can this agency be offering tens of thousands of images of celebrities, living and dead? Any ideas?
I have no idea about the new stuff, but the older you can pay for rights - I have a lot of those 'paid for rights' - but the new ones? No idea where they got the rights to those from. As they are a Gallery I presume they have paid for rights. Who knows anymore?
I'm not bothered about the copyright, I am thinking of the rights of the people in the pictures. Without a model release, selling and photo with no artistic input into it (other than composing and shooting) is an infringement of their right to their commercial ownership of their own image, as I understand it.
I'm sure Nadal did not sign a model release at a press conference, and that Drew Barrimore didn't sign one as she headed down the red carpet. Those are editorial photos, not commercial ones.
Yes it is a violation of their rights to their celebrity . It is up to them to take you to court and most won't bother unless you make a lot of money then they will want their taste. Watch out for the mouse though :-)
A celebrity persona can be trademarked not copyrighted.
if you take the photo of the celebrity you hold the copyright to that image(as long as its in a public place, with no expectation of privacy). People, names, faces,logos,band names etc.. cannot be copyighted. only trademarked.
A trademark protects the celebrity from having their image used to advertise or endorse a product, or business without permission and compensation. legally speaking it protects from association, confusion of association or dilution of brand.
courts have ruled that selling prints or paintings as "fine art" does not infringe in trademark violations, as the content of the image is irrelevant,but the end use that the buyer uses said print for can be a violation. such as using the image to promote their product or business. In the same decision the court ruled that using a trademark image on mass produced items such as shirts, or coffee mugs would not be a legal use of a trademarked image. as it leads to dilution.
of course always talk to an attorney with any questions. you can always be sued for anything by anyone. And the celebrities have deeper pockets than most of us.
Jeffrey.... because they would almost certainly not reply and, in any case, I just want to know what can be done here in reasonable safety. If the agencies are doing something, it suggests that it is safe and I can get on with uploading a few hundred celebrity sports pictures. But I have doubts.
Attorney's advice is not a lot of use. They will give an opinion and if another attorney disagrees with that opinion then you can get sued - and if you lose your attorney just tells you it was bad luck and in his opinion shouldn't have gone that way. If lawyers didn't hold different opinions, one of which is right and one of which is wrong, a lot of them would be out of work.
If your information is right, Bradley, then any case with a chance of success would surely be against the purchaser of the image for using it incorrectly, rather than against the seller of it who is unable to determing what the use is going to be.
But I thought I saw that a court had ruled that there must be an "artistic input" for it to qualify as fine art, and that just taking a photo didn't count. so offering a photo for sale amounted to an infringement of the commercial rights of the subject.
yes, there is a mish mash of court decisions on the subject. The case im refering to was a fed court case about a painter that paints alabama football games and players. he used his own money $400k to take it all the way to the circuit court.
a photo is considered fine art as an "item of commerce". in other words selling a photo you took is your right as far as selling the photo as an "object of commerce", the content is irrelevant, unless it contains something that is copyrighted. A statue for instance. that would be a copyright violation. A photo of something trademarked is treated differently. the photo is yours and you are within your rights to sell the photo or print of the photo itself. mass producing an image of a trademarked item such as posters,mugs,tshirts is not considered fine art. and would generally violate the dilution part of the protection.
In one case a court defined "fine art" as art created for having aesthetic, decorative, collectable value, and not used as advertising. (not exact quote here)
think of a line of photographers all photographing the same scene or object. each holds the copyright to their image. the image itself, as an object, not the content of that image.
Ironically, copyright protection laws were not written for artists and creatives. They were written to encourage scientific study to find new drugs etc.., by protecting a private scientists data from being used in others research.