What Is Copyright?
I had a discussion with a colleague recently about copyright protection in the United States. A day or so later, the Supreme Court handed down a victory to photographers regarding copyright. If you’d like to read the entire Hollywood Reporter article with all the details, click here.
Copyright has long been a hot-button issue with photographers; especially with digital work. Copyright law is complex and contains many grey areas, which can result in artists being taken advantage of in many cases.
One thing is clear, though. The moment ANYONE creates a photo it is automatically protected by copyright law. It does not have to be registered with the U.S. copyright office; though that does provide absolute proof of ownership. So, a photographer owns everything they create. They can license, change, manipulate, post, publish, or use it however they choose. If the photo is of a person, that person has zero rights or ownership of the photo.
Commercial photography is a bit different. Using wedding photography as an example, a couple typically buys ownership rights to the photos. This is one of the reasons wedding photography can be expensive; because the photographer is not only selling the photos but is forfeiting their ownership of those photos (and thus future commercial profit).
Magazines and website works similarly. A photographer may be contracted to shoot images for an article. That work is considered “for-hire” and typically carries a larger fee. Photographers can receive upwards of $25,000 or more for a single shoot but when that shoot is done, they are not the owners of the photograph. However, photographers can negotiate ownership as part of the contract. Many do; especially for high-end clients.
More common is licensing. Say I shoot a photograph of a model. A magazine sees that photo and wants to use it in an article. They contact me and we negotiate a fee. That fee is typically “single-use”, which means the magazine can use it ONCE. If they want to use it again in any way, they must negotiate another license; and THAT is what is at the heart of this case.
In 1981, Newsweek hired Lynn Goldsmith to take pictures of Prince. That’s one contract; and she retained ownership of the images, providing Newsweek a license to use the photo
Three years after the magazine ran the photo, Vanity Fair approached Andy Warhol to create a portrait of Prince using Goldsmith’s photo as a template. She was paid $400 to license the portrait and use it for a single issue. This was a second contract that exercised a single-use license
But, unknown to the photographer, Warhol then created a series of 16 images, cropping and painting over the original images to make what his foundation’s lawyers argue are entirely new creations that comment on celebrity and consumerism.
After Prince died in 2016, Vanity Fair’s parent company Condé Nast ran an image from the series on the cover. It paid the Andy Warhol Foundation, which assumed ownership of the series, $10,250. Goldsmith got nothing. She sued and the case went through several lower-court hearings before getting to the Supreme Court, which found that Goldsmith was entitles to compensation because she owns the photo.
This is a HUGE win for photographers and I hope to see more cases like this.