Copyright Law For Photographers: The Kardashians Meet Copyright

By Eric Misterovich

Last week, the Kardashian sisters filed a copyright lawsuit in California federal court, claiming Ellen Pearson, the widow of their father, Richard Kardashian, unlawfully sold their family photographs and diaries to Bauer Publishing Company.  Bauer published some of the photographs and diary excerpts in recent issues of its Life & Style and In Touch magazines.  The sisters are now seeking over $500,000 in damages, and a share of profits from the magazine issues that included their family photos.

 

While the Kardashian lawsuit will certainly evoke a wave of celebrity drama, it also raises some important questions about copyright privileges and photography.  Copyright protection under Title 17 of the U.S. Code gives celebrities certain rights to commissioned photographs of themselves, such as the right to reproduce the images, sell or display the images as desired, or derive other images from the original.  However, when celebrities do not personally commission photographed images, the copyright right remains with the photographer.

 

In most cases, the moment a photographer snaps a photograph, he or she retains exclusive rights to the image, including the right to display or sell the image at will, or to sell the copyright to the image to another person. What’s more, anyone who violates the photograph copyright of another could be liable for damages, such as lost revenue, resulting from the misuse of the photograph.

 

How to avoid violating the photograph copyrights of others:

 

In addition to understanding what rights photographers may have to reproduce and sell their images, there are two important points photographers should keep in mind to avoid potentially violating the rights of others.

 

  • First, try to avoid capturing the copyrighted or trademarked materials of others in your photographs.  If you do capture such work in your photography, understand that distribution or sale of your photographs could give the holders of the other trademarks or copyrights a cause of action against you.
  • Second, if anyone else aids you in creating a photographed image, take note that the assistance may give that individual an ownership interest in the copyright of the photographs, unless you have a contract or agreement stipulating otherwise before the image is captured.

4 ways to prevent lawsuits over your photography:

 

  1. Always register your copyrighted photography and keep your ownership on official record.  In the case of a lawsuit, this would be your first line of defense against claims that you don’t have a valid copyright interest in any disputed images.
  2. If someone assists you in capturing or developing photography, make sure you have a written agreement before taking any photographs that the specified person is “working-for-hire,” which means that the employer, and not the employee, will retain the copyright to any images produced.
  3. Whenever using models, locations, or props that could have copyright or trademark interests, make sure to obtain releases from the individual models or prop/location owners prior to taking photos.

 

If you think you might have a potential legal issue with taking or releasing certain images, be sure to contact a professional legal counsel before proceeding.

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