Exploring the Ramifications of Dealing with Copyrighted Works

It wasn’t three tenors at the Ad Club’s October 14th Smartalk meeting at Mayfair Farms, rather four lawyers who addressed issues everyone confronts when using work created by another person. Copyright, fair use of copyrighted material, work made for hire and the consequences of copyright infringement were discussed by Lindsay Schoen and Fawn Horvath of Hall, Dickler, Kent, Goldstein & Wood of Manhattan; Victor Perlman, General Counsel for the American Society of Media Photographers; and Jennifer Borg, Vice President of the North Jersey Media Group.

Though sparsely attended — members either felt they understood the 1978 law implicitly or chose to ignore its implications entirely — the session was, according to everyone present, one of the club’s most informative gatherings.

Lindsay Schoen

To be copyrightable, a work must be fixed in a tangible media of expression — music, words, visual art, motion pictures, dramatic presentations, publications, etc. The work must be original and in a perceived form. Ideas and thoughts, Lindsay Schoen said, cannot be copyrighted, only their expression.

The owner of a copyright has the right to reproduce it, make derivations, has the sole right to authorize others to do so and holds these rights for 70 years after the death of the last surviving heir.

Get permission to be sure
Infringement, she added, is a violation of those rights. Sometimes it may be use of a portion of the material in what’s called substantial similarity. At other times it might be an outright copy.

When copyrighted material is used in an editorial sense such as covering a concert, a critical or academic essay, in teaching or in research, use is permitted. However, it’s shaky. The best bet is to obtain permission. If the usage ends up in court, the determination is made by applying four points: purpose of the use, nature of the use, how much of the original is quoted and what is the potential value or effect on the market. It all depends on the judge, Schoen pointed out, naming several well-known cases. Coors Beer parodied the Energy Bunny and won; Paramount Pictures won its case parodying the 1991 Annie Liebowitz photograph of a naked and pregnant Demi Moore on the cover of Vanity Fair in an advertisement promoting the release of its film 1996 Naked Gun: The Final Insult 33 1/3.

Fawn Horvath

Trademark differentfrom copyright
Fawn Horvath enlightened her audience on trademark, which she said is a word or a tag line and can’t be copyrighted, only registered. A trademark can only be used one way and then only with permission. But don’t ever use Coca Cola’s or Disney’s, she emphasized.
When you photograph or use a building or a landmark, it requires releases from the owners.
Horvath spoke of the rights of privacy and publicity, which means that one can’t use an image of people in a photograph without their consent. “This,” she pointed out, “is different from copyright infringement.” Another example is the case with Vanna White and a Samsung robot dressed like her. The courts awarded White a $400,000 settlement.
Victor Perlman, General Counsel
for ASMP National, reinforced the Hall, Dickler attorneys’ statements. “Copyright,” he said, “is the expression of an idea, not the idea itself, and belongs to the creator unless the creator signs his or her rights away in writing in a Work Made For Hire arrangement.”
Victor Perlman

Pointing out that the U.S. is probably the only country in the world with WMFH, he said the employee-employer agreement is the one exception to the rigid rule that the creator owns the rights to reproduce his or her work.

An employee has no rights to his/her creations unless both parties sign something to the contrary. (The reverse is also true. A copyright owned by a free-lancer cannot be transferred unless both creator and buyer agree to the sale in writing.) Many companies like The New York Times, Time Magazine or The Boston Globe more often than not make WMFH a condition when hiring freelancers, a situation many, if not all artists, are fighting desperately.

Work Made For Hire at issue
Although copyright comes into existence the minute it is created, in Work Made For Hire, the creator owns nothing. An example is Tom Franklin’s photograph of the firemen raising the American flag on 9/11. He owns no rights because he’s an employee of The Record, which authorizes its use anywhere. Perlman said that copyright extends 95 years from the first publication or 120 years from the date of creation, whichever is shorter.

For freelancers, Work for Hire is “bad,” Perlman said. “Stay away from it.” They can’t use their images as stock, they can’t sue if there’s an infringement, nor can they show the images in their portfolios.

While all photographers know to avoid WMFH, Perlman counsels that if the newspaper, broadcast media or other communication vehicles insist on it, freelancers should try to broker deals that give the creator what he needs and the user the same — for a good price. (Advocates like Editorial Photographers Forum president Seth Resnick have made some headway along these lines.)
With a few amendments along the way, this protection for artists of all sorts became law in 1978. With the digital age upon us, it continues to be tested, with work for hire a situation to be avoided.

On the other hand, Jennifer Borg, North Jersey Media Group’s in-house attorney, only works in WMFH contracts.
“They’re a meeting of the minds,” she says, “but it’s like working with an 800-pound gorilla. NJMG freelancers don’t read their contracts. However, the images they take are licensed after they have appeared in the North Jersey publications.” Agreeing with Perlman, she added, “There needs to be a dialogue between the freelancer and the buyer.”

Jennifer Borg

Citing the best-known example, she also discussed The Record photographer Tom Franklin and his famous photograph of the firefighters raising the American flag. When a local company changed the ethnic make up of the firemen in a sculpture, the North Jersey Media Group halted the sale of the work, citing right of publicity and that the image was not just a photo but a historic moment and that it couldn’t be altered in any way.
Chair of the event was Gary Denburg; sponsors included Factory Studios, New Jersey Broadcasters Association and Unique Photo.