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Workshop on Management of Intellectual Property by Photographers Beijing, China, December 8 and 9, 2005: 

Workshop on Management of Intellectual Property by Photographers Beijing, China, December 8 and 9, 2005

Taking Photos of Copyright Material, Trademarks and People: 

Taking Photos of Copyright Material, Trademarks and People Lien Verbauwhede Consultant, SMEs Division World Intellectual Property Organization (WIPO)

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This Presentation Outline Taking photos of copyright material Taking photos of trademarks Taking photos of people

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PART 1 INTRODUCTION

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Privacy Fair competition National security Ethics Private property Children protection

Restrictions on taking/using photos: 

Restrictions on taking/using photos Laws, administrative rules, doctrines, common law, etc Vary from country to country Change over time Liabilities Missed opportunities How the world sees you as an ethical being Opinions vary widely Personal choices

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PART 2 TAKING PHOTOS OF COPYRIGHT MATERIAL

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Owner of copyright work : exclusive right to reproduce work Photographing = reproducing When do you need permission?

When do you need permission?: 

When do you need permission? Object copyright protected? Copyright expired? Substantial part? Exclusive right copyright owner? Exception?

1. Does your photo encompass copyright material?: 

1. Does your photo encompass copyright material? Literary works

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Artistic works

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Maps, globes, technical drawings

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Advertisements, commercial prints, billboards, labels

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Films, TV ads, dance, plays, mime ...

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Works of applied art

2. Has the copyright expired?: 

2. Has the copyright expired?

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Boyd andamp; Evans Joint work

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Permission required if you use ‘subtantial part’ Substantial part = important, essential, distinct part of the work How much + quality of what is used Depends on the circumstances ! 3. Do you use a ‘substantial part’?

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Fictitious example

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Taking photo = reproducing Making print, photocopying, scanning Making collage from several works Adding artistic elements to a work Displaying to public (exhibiting photo, selling postcards, posting on website, etc) 4. Do you do an act which the copyright owner has the exclusive right?

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Vary from country to country Depends of facts and circumstances Take into account: Amount of work used Nature of work used Nature of your use Effect of your use on the potential market for the work 5. Does an exception apply? In some countries: Specific reference in law In some countries: 'Fair use'

Exception 1: 

Exception 1 Church of Bossey, France

Taking photos of buildings: 

Taking photos of buildings In most countries: Buildings may be freely reproduced in pictorial form and then made available to the public Houses, office buildings, churches, garden pavilions Not: monuments But: Separable artistic elements associated with buildings may be protected

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Exception 2: 

Exception 2 Plaza Botero, Medellìn

Taking photos of copyright works in public places: 

Taking photos of copyright works in public places In most countries: no permission needed to photograph artistic works located in public places BUT: Exception only to certain types of works Only if displayed in public Only if permanently displayed in public

Exception 3: 

Exception 3 2005 Archibald Prize The 2005 Archibald Prize has been won by John Olsen for his painting Self portrait Janus Faced. The Archibald Prize is now in its 84th year and Olsen received a prize of $35,000 for his win. John Olsen’s artist statement about his Archibald self portrait comes in the form of a poem, which he wrote this year: … http://www.cultureandrecreation.gov.au/articles/archibald/ The Archibald Prize - Australia's premier portraiture award John Olson, Self portrait Janus Faced

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Taking photos to accompany news reports, reviews, critiques Use in news report on TV, media articles, etc. Use for book which reviews the works Obligation to identify name of author + title of work

Exception 4: 

Exception 4 Taking photos for private use Jeff Koon, Puppy, Bilbao

Taking photos for private use: 

Taking photos for private use In most countries: private use of images is legal and doesn’t require permission, regardless of what copyright it is Use it to decorate your house, show to friends, put in photo album, etc

From whom do you need permission?: 

From whom do you need permission? Copyright owner

Do you need to identify the author?: 

Do you need to identify the author? Moral rights Paternity right Even if use allowed under exception You or your client: when exposing to the public

Can you make changes?: 

Can you make changes? Moral rights Right of integrity Changes that would damage the honor or reputation of the author Digital manipulation of other’s works within your photo Use in context that would damage the honor or reputation of the author Che Guevarra

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Fictitious example Advertising agent gets license from photographer to use photo for Nike ad. Digitally manipulates photo (mouth)

Alberto Korda: 

Alberto Korda 'As a supporter of the ideals for which Che Guevara died, I am not averse to its reproduction by those who wish to propagate his memory and the cause of social justice throughout the world,' Korda said in the autumn of 2000. 'But I am categorically against the exploitation of Che's image for the promotion of products such as alcohol, or for any purpose that denigrates the reputation of Che.' Ad Smirnoff vodka Lawsuit, London, 2000

Can you copy ideas?: 

Can you copy ideas? River Kwai

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PART 3 TAKING PHOTOS OF TRADEMARKS

Can you freely include trademarks in your photos?: 

Can you freely include trademarks in your photos? Unlike copyright, trademark law does not restrict the reproducing of a trademark in the photograph itself BUT: Trademark law forbids using a trademark in a way that can confuse consumers regarding the affiliation of the trademark owner to the image

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Fictitious example

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PART 4 TAKING PHOTOS OF PEOPLE

Are people protected by intellectual property rights?: 

Are people protected by intellectual property rights? No ... But ...

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Choreographic work Artistic fabrics jewelry Badge or logo

When is permission particularly recommended?: 

When is permission particularly recommended? Intruding one’s privacy Intentionally viewing people insider their house, business or other other private areas Hidden cameras Example: photo of patients in hospital

2. Publicizing private facts: 

Especially if Matter is highly offensive Matter is not of public concern Example: Sexual affairs, private debts, criminal records, deseases, psychological problems Picture man driving car, with pint in hand 2. Publicizing private facts

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BUT: Right of privacy  matters of legitimate public concern Newsworthy persons (politicians, celebrities, etc) may lose right of privacy to the extent that their private facts are relevant to legitimate news Example: photo top footballer taking drugs … Example: photo top footballer having sexual affair ...

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BUT: Many laws do not protect private matters if they are in public view Example: photo of mother grieving for her daughter, victim of car accident

3. Using someone’s image for commercial benefit: 

Right of Publicity One’s image = result of own effort. Has economic value Cautious when using photograph of celebrity for own commercial gain 3. Using someone’s image for commercial benefit

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Fictitious examples

4. Suggesting that someone is authorizing or endorsing a product: 

Presence of celebrity is effective tool to attract consumer attention and to create credibility Without authorization: may be liable for 'passing off' or 'unfair trade practices' 4. Suggesting that someone is authorizing or endorsing a product

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Fictitious example

5. Putting someone in a false light or defame someone: 

‘False light’: false representation of a person (not necessarily damage to the reputation) ‘Defamation’: damaging the reputation of someone by making false statements How can photography amount to defamation/false light? Often when photo is used to illustrate a text in a way that falsely depicts the portrayed person. 5. Putting someone in a false light or defame someone

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Photo of man incidentally walking in front of brothel. Photo used to illustrate article on child prostitution... Fictitious example

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Photo of President Hu Jintao. Published with caption: attributes a statement that he did not make Fictitious example

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Photo of figure skater Nancy Kerrigan. Photo showing nude woman, Nancy’s face grafted onto the nude body. Photos advertised on the Internet. Example

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PART 5 CONCLUSIONS

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Photographers need to think about legal restrictions when making images which include any copyright material, trademark, identifiable person or private affairs. Written permission = best protection extent of permission even if not legally required written

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Most situations are not clear: grey lines. Some pragmatism will be needed to decide whether or not you will run after a release. Pragmatism comes from empirical experience. Balance between risks (costs) and benefits.

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'The personal choices that a photographer needs to make regarding material and the manner of execution not only reflect how he or she sees the world, but also reflect how the world sees the photographer as an ethical being.' Quote from Bert P. Krages Legal Handbook for Photographers, Amherst Media Inc., Buffalo, NY, USA, 2002

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Thank You for your Attention. WIPO’s website for SMEs : www.wipo.int/sme