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Friday, April 29, 2011

WHAT?!? Copyright and the Royal Wedding

They look lovely, don't they? And now, I will, as I've been asked, provide this credit: Copyright 2010 Mario Testino.

I watched some of the royal wedding this morning, and I must say, it made me feel all warm and fuzzy inside. It reminded me a lot of my own wedding. I mean, mine was a lot smaller, of course, but it was smiles and sunshine all around. And like today's wedding, it featured an exquisitely beautiful bride and a slightly funny-looking groom.

What a lovely day. Naturally, my thoughts turned toward intellectual property law.

It was at that point I was shocked to find out something that was WAY different with my wedding. I managed to negotiate MUCH better legal terms with our wedding photographer than Will & Kate did. Specifically, I had our photographer agree that my wife and I would be deemed the authors of all photographs, and all rights and copyright interests in the photographs were assigned to us in perpetuity. It was our freaking wedding, after all.

So how is it that Will & Kate left the copyright to their official pictures with their photographer?!? Persons using the photos for editorial use are required to include this credit: Copyright 2010 Mario Testino. THAT DRIVES ME CRAZY!!! I can't stand it when any wedding couple lets a photographer bully them around on rights issues. But for the British Monarchy to do this? It's positively disgraceful! It makes me want to BASH MY HEAD INTO A WALL! I mean I just can't freaking believe it!!!!!!!!!!

C'mon people, stop getting screwed around by photographers on rights issues! Have a spine!! And if you are heir to being the head of state of a commonwealth that embraces more than 100 million people spread around the globe, then WISE UP AND START RULING SOME BRITANNIA!!!

OMG, I am so worked up right now. I can't even begin to talk about how law professors habitually cave to student law-review editors by signing away copyright to articles. I would completely lose it and have a coronary.

Posted by Eric E. Johnson on April 29, 2011 at 04:21 PM in Intellectual Property | Permalink


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Just because you managed to bamboozle the true author of your wedding photographs into signing a document saying that you were the author of the photographs, doesn't make that statement true. The photographer is the author of the photographs, and that is why the law gives that right to the photographer by default. Signing over the copyright doesn't make you the author instead of him. The photographer is still the 'author', regardless of who owns the copyright, and regardless of your own attempts to redefine the English language for your convenience.

Posted by: DBL | May 1, 2011 6:51:36 PM

Next thing you know Mario Testino will sign up with Righthaven.

Posted by: Debbie Borman | May 1, 2011 10:11:49 PM

Is this post an attempt at sarcasm? Because, if it isn't...

I'll agree with what DBL said, with the point added that payment for having rights being handed over so completely should mean that the price of the photography should go up a few 100%. What they did, is standard. Somehow, I doubt you paid your photographer his fair share. Do you not know how much training, equipment and experience go into being a professional?

Your argument seems to assert that the subject should be considered the natural author, instead of the creator. The exact opposite of current principles. If this were true, copyright would be an insurmountable mess. I'm shocked that this is on a blog of law professors? Utter insanity.

Posted by: Kai | May 1, 2011 10:37:40 PM

The more interesting questions to me, Eric, are the following: (1) Does an academic retain copyright in her work, or is the article actually property of the employing institution, under the work made for hire doctrine? (2) Are you the author of your wedding photographs as a result of the deal negotiated with your photographer, or merely the owner, in which case the photographer could reclaim the copyright in the photographs under the termination provisions of the Copyright Act.

As you know (but many readers won't), Section 101 of the Copyright Act identifies two types of works made for hire (where the person for whom the work is prepared is the statutory author of the work - 17 USC 201(b)), one of which is "a work prepared by an employee within the scope of his or her employment." 17 U.S.C. 101(a). It's hard imagine that writing articles falls outside the scope of our employment as academics, and most of us collect the steady pay and benefits that mark us as employees. If an article is a work made for hire, then perhaps we have no copyright to retain or grant as a condition of publication.

Judges Posner and Easterbrook suggest there is an academic exception to the work made for hire rule. One recent article suggests that we should look to the incentives of the relative parties, and not simply to an employment status test developed for tort liability in agency cases. See Assaf Jacob, Tort Made for Hire - Reconsidering the CCNV Case, 11 Yale J.L. & Tech. 96 (2009). Both options strike me as alternatives to the Supreme Court's CCNV employment test, which would look to multiple factors to determine whether the academic is an employee.

Section 101(b) lists nine categories of works that are often made on a commissions and thus can be a work made for hire, even if the party creating the work is not an employee. Photographic works are not among them. Photographers, as Kai suggests, are often seen as underpaid and exploited, in part because they are often freelancers. (I freely admit my take on this point is colored by fond memories of fictional exchanges between publisher J. Jonah Jameson and freelance photographer Peter Parker, aka the Amazing Spider-Man.) Congress could have, but did not add photographic works to the list of works that could be works made for hire outside the employment context, on the recommendation of the Register of Copyrights. See CCNV v. Reid, 490 U.S. 730, 747 n.13 (1989). Academics, on the other hand, obtain the security of tenure, in addition to other employment benefits.

If we are trying to figure out where the equities lie, perhaps they lie with the commissioning author only in cases where the work is typically a commission, or whether the creator is a proper employee (receiving those benefits that employees get and freelancers don't). There, the commissioning party is "paying" for the right to own the work. In the case of the photograph, it's not clear that you did in a way that makes you an "author" as opposed to an owner. This will matter, if at all, in 35 years, if your wedding photos end up having some unforeseen commercial value. The photographer, as original author, but not current owner, can seek to claw back the copyright to the photographs under the termination provision, 17 USC 203.

While I don't like the idea that my articles might be owned by someone other than me, I'm not sure that the law can be fairly construed the other way. I'm much more comfortable with the idea that the freelance photographer is the author, whether or not he conveyed ownership of the copyright in your wedding photos to you.

Posted by: Jake Linford | May 2, 2011 10:49:31 AM

Jake, your points about photographs are well-taken, at least if the photos stand on their own, like the sculpture in CCNV. For my business clients, we often include "work made for hire" language in contracts with photographers. Those photographs are typically being obtained specifically to be included, with text and data, in catalogs and advertisements. It seems those uses would be included within the terms "collective work," "compilation" or "supplementary work" and should qualify as a work made for hire. Of course, we also include a provision that, to the extent that the work is not a work made for hire, the photographer assigns ownership of the copyright to the client.

Posted by: David Staub | May 2, 2011 7:40:53 PM

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