Madeleine LaFerney, a student in Jon Pfeiffer’s Fall 2014 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the prompt: “Hey, Those Are Mine. Hillary is a photographer, and Bill an aspiring model who are dating. A couple times, Hillary photographed and recorded video of Bill’s provocative photo shoots. Both Bill and Hillary retained copies of the photos and videos. After they broke up, Bill discovered Hillary had opened an art gallery with the material. While Bill wanted fame, this was not what wanted. But after Hillary’s success, he sold his copies of the images to Hunk Magazine for $1,000 per photo. The former couple sues each other for copyright infringement. Who will win? Who should win from a policy standpoint? Do not discuss privacy law issues.”
Photographing and videotaping another person in a non-public place can result in a complex situation between the artist and the model. The artist automatically has copyright ownership of his or her original work, but the person in the photograph or video might claim rights. To avoid a situation such as Hillary and Bill’s, a photographer should always clarify who will own the copyright at the beginning of a shoot.
As the artist, Hillary is the copyright holder because she created the photograph. Thus, nobody else has the right to copy, alter, or sell Hillary’s photographs or videos without her permission. The law gives to the author or owner of a work the sole and exclusive right to reproduce the copyrighted work in any form for any reason; therefore, Hillary is protected. Under the U.S. Copyright Act, Hillary’s ownership of the photographs and videos gives her the right to reproduce the work, to distribute copies of the work to the public by sale or transfer of ownership, to prepare derivative works based on the work, and to display the photograph or video in public. When photographing a portrait or video recording a person, the artist should always consider the person’s right of publicity. The artist would be violating the person’s right of publicity if he or she used the portrait, without permission, for his or her own benefit. In this case, Hillary would only be violating Bill’s right of publicity if she used his portrait commercially to benefit herself. Since Hillary is not advertising or promoting anything affiliated with the photograph or videos, she is not using it commercially. In fact, Hillary is technically using the photographs and videos editorially, which is protected under the First Amendment.
As the person in the photographs and videos, Bill could have claimed rights to them before they were taken. Since he did not, Bill is not the copyright holder and does not have the right to sell copies of the photographs without Hillary’s permission. Bill wrongfully allowed Hunk Magazine to use the photos, which violates copyright laws. From a policy standpoint, Hillary should win because she is the creator and owner of the work, meaning the First Amendment protects her right to make other expressive uses of Bill’s images.
Madeleine LaFerney is a senior at Pepperdine University majoring in Integrated Marketing Communications.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.