Photography Law is Monkey Business (and other legal issues artists should ponder)

Did you hear the one about the monkey selfie scandal?  It's hilarious.  A monkey took a picture of himself and the UK photographer who owned the equipment claimed copyright.  So, technically, I may be infringing on that photographer's copyright by showing you the shot below... Right?  Wait a minute, isn't there public domain or "fair use?"  And come on, who sues over a picture of a monkey?  A good lawyer can get a frivolous lawsuit thrown out before even answering a complaint, right?  And yet...

Photographers, who are so passionate about their craft (or art, if they are really good!), often do not consider the legal ramifications of their businesses, or the practical ramifications of their legal decisions.

No, Wikipedia is not claiming a monkey has the copyright for the above picture; because it was not taken by a human being, Wikipedia believes that no copyright could be held for the picture.  The US Copyright Office finally took a stand and declared that the monkey selfies are public domain.  However, the argument raised important questions for photographers and other artists and craftspeople who have part or sometimes all of their work furnished by others (though I don't know how many photographers have jungle animals assisting them).  Ironically, if the photographer had not discussed the monkey's use of his equipment, it seems inconceivable that the copyright would have been voided.  The online debate showed that lay people really are confused about "fair use" and public domain.

Another photography viral sensation recently inspired important legal questions for photographers and artists:  53 historic black and white photographs that were colorized with a glorious attention to detail.  Of course, some of the older shots are in the public domain.  But what about those that were registered with the US Copyright Office?  Were those copyrights infringed?

I don't know if any of the colorized photographs were registered and renewed with the Copyright Office.  All copyrightable works published in the United States before 1923 are in the public domain, but I cannot vouch for the later works.  If they were registered, the artist who colored them may very well have been infringing the copyright.  Don't get me wrong, I think the colorizing that was done to those 53 photographs are works of art in themselves.  But in a court of law, I would be hard-pressed to argue that they are not "derivative works," i.e. works that are subject to copyright enforcement by the original copyright holder.

1. Do I have any reason to worry about a Fair Use Exception?

The short answer is, "Fair Use" is a legitimate defense against copyright infringement, but not everyone can hide behind Fair Use.  You will have a stronger case against someone who is using your registered work for commercial purposes, for instance.  The U.S. Code states that:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

2. Can I "contract out" any copyright laws?

Copyright can be transferred by contract.  Sometimes, for instance, a company wants to hire a photographer or artist (or has one on staff), and a mutually agreed-upon clause may specifically state that this is a "work-for-hire."  The copyright is then owned by the employer, NOT the creator of the work.

A wedding photographer, for example, who leaves out disposable cameras for guests to use, may want to explicitly tackle copyright claims in a contract with the bride and groom.  Unlike monkeys, wedding guests have the capacity to consent to copyright transfer.

3. Who owns the photographs?

Copyright is owned initially by the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.  However, as mentioned before, an employer of a photographer who is creating a work-for-hire is the owner.  Wedding photographers, for instance, ought to be careful in the drafting of an agreement between him/her and the bride and groom.  It would be unwise for a photography studio to define the photography of the bride and groom as a "work-for-hire," but instead a limited license of the photography with the ownership held by the photography studio.  Wedding photographers may then enforce the copyright in the event that the bride and groom are caught trying to reproduce the wedding pictures.  Copyright is transferrable, and may even be left in a will, or pass to heirs in the event that a will has not been drafted.

4. Can I (and should I) enforce my contracts?

At the very least, a cease-and-desist letter is a low-cost and effective way of trying to halt the copying and distribution of your registered copywritten photographs.  Keep in mind that web sites are given "safe harbor" for inadvertent display of copyrighted works under the DMCA, but, in my experience, will work expeditiously with you to take down the photo when you assert copyright infringement.

5. Can someone use and change my photograph?

The person who takes your photograph and changes it for commercial purposes is ignoring the protections afforded to copyright holders to sue for damages for the creation of derivative works.

Derivative rights are defined as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”

The U.S. Code states:

The author of a work of visual art—

• shall have the right—
  • to claim authorship of that work, and
  • to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
• shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
• subject to certain limitations, shall have the right—
  • to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
  • to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

Related: What Startup Music Labels and Musicians Can Learn from Disney, deadmau5, WuTang and Pharrell