This is the third Insight in a series addressing how photographers can exploit and protect their rights. Read the first post here, the second post here, the fourth post here, the fifth post here and the sixth post here.
Previously, we have discussed high-profile, ongoing copyright cases that photographers should be aware of as well as best practices that can help protect photographers against infringement. Here, we will discuss certain copyright exceptions and special scenarios which require greater attention in the photography space, including government photography and photographs of private or public individuals.
Government Works: Safe in the Public Domain?
Most U.S. government works, including photography, are copyright free. The Government Edicts Doctrine holds that laws and certain works produced by government agents in their official capacity are in the public domain and are not subject to copyright ownership. This extends generally to images and photographs produced by government agents. If you are a photographer employed by the government, it is important to understand how and when you and others may use your images. Independent contractors may have different rights, depending on the terms of the contractual agreement.
One interesting way in which this doctrine has played out recently is with the Chief Official White House Photographer position. Appointed by the U.S. president, this photographer is responsible for capturing the president’s official and day-to-day duties, and the resulting photographs are in the public domain. Former Chief Official White House Photographer Pete Souza recently announced on his Instagram account that he was threatened with a copyright takedown notice from photo agency WENN Rights International for using an image he took during his service with President Obama. The notice claimed that WENN owned the copyright to the image and threatened to file legal action if the photograph was not removed, but as Souza correctly explained in his post, the photograph has been in the public domain since it was taken in 2009. WENN responded that the notice was an error and that the matter would be dropped immediately, but many of the thousands of individuals who liked and commented on the post had questions about how this could have happened in the first place and who owned the photographs.
Souza can certainly display these photographs on his own website or use them in a book, as he and other White House photographers have done, but there is also nothing stopping others from using these photos, including the subjects of the photos themselves. In March 2022, it was widely reported that President Trump was moving to publish his own photography book, with many photographs taken by former White House photographer Shealah Craighead, who was marketing her own book at the same time. Although he came under fire for not allowing her the exclusive opportunity, the photographs are in the public domain, and there was little Craighead could do. Additionally, government images cannot be used in a way that implies any endorsement by a government agency or official. (Government trademarks and logos cannot be used for similar reasons.) At the state and local government level, the doctrine of sovereign immunity insulates states from copyright infringement suits, as we have previously discussed in our Insight regarding Allen v. Cooper.
Right to Privacy and Right of Publicity
Finally, if there are people visible in certain images, there may be a privacy and/or publicity rights issue, which could prevent the image from being used freely. Rather than protecting the photographer’s rights as the creator of the work, privacy and publicity rights protect the interest of the individual being photographed. When photographing people, especially if the images may be licensed or used commercially, release forms and permission are essential. Although there is no federal law protecting privacy and the right of publicity, various state laws protect the right to be left alone and the right to not be commercially exploited without consent and possible compensation. These laws differ from state to state, so knowing the jurisdiction and the applicable state laws is important when drafting agreements with photograph subjects.
For example, in New York an individual’s right of publicity is defined as their inherent right to control the commercial use of their personal characteristics. The state even has a dedicated website form for successors to file a Right of Publicity Claim Registration for deceased individuals, and it is possible to search the filings for those registrations which have been completed and approved. In Georgia, the right of publicity is a common law right with no corresponding statute, with the seminal court case involving a replication of the name and likeness of Martin Luther King, Jr. without the permission of his estate. The Supreme Court of Georgia found in favor of his estate, and the resulting right of publicity protection in Georgia is fairly strong. California has a common law and statutory right of publicity, where the statute prohibits knowing use of a person’s name, voice, signature, photograph or likeness for commercial purposes without prior consent.
Famous Faces, Social Media and the Paparazzi
There is typically a higher standard for celebrities and those who have thrust themselves into the spotlight, especially in cases involving paparazzi. Lutzker & Lutzker has discussed ongoing and upcoming cases which may shed some light on guidelines for photographers and celebrities alike on social media, but in the interim, there are a few best practices. Uploading images to temporary media such as “stories” rather than to more permanent “posts” is more likely to weigh in favor of fair use. So would some transformation of the photo or an accompanying statement that may have a traditional fair use purpose, such as criticism, parody or education. In Emily Ratajkowski’s case, the judge found that it would be a question for the jury if her addition of the caption “mood forever” to a photo uploaded for less than 24 hours would be fair use. Some disassociation from direct commercial exploitation and crediting the photographer could also reduce the chances of litigation. However, until the law is further settled, it is best to be cautious. We encourage photographers who find themselves in these unique scenarios to understand that there may be exceptions or unsettled law to consider, and that enlisting counsel early can help avoid some of these pitfalls. Lutzker & Lutzker is available to help photographers with these issues.