The Copyright Conundrum

Henry Leutwyler shot the cover photograph of the late James Gandolfini’s Cadillac (above left) for The New York Times Magazine. “The Times produced it, but I have the copyright,” he says. Leutwyler photographed ballet dancer Misty Copeland (right) for Victory Journal, and retained rights to that photo series. Photographs © Henry Leutwyler

According to Graphis Master photographer Henry Leutwyler, the rights to any image lie with its creator. “The photographer always owns the copyright and controls the usage of his images. Case closed,” Leutwyler says.

Yet freelancers often face tough choices when taking assignments. “To get published in today’s editorial and commercial ecosystem, photographers and other visual artists are often presented contracts calling for them to hand over all rights for the usage of their work—online or in various print outlets—with no additional compensation,” writes Michelle Bogre, author and copyright attorney, in a timely article in Graphis Journal #357 called “Should You Sign That Contract?”
Bogre explains how things got this way in the current media climate—including landmark cases that altered the landscape for publishing corporations as well as the creators they hire. Her piece also outlines how to avoid pitfalls, such as work-for-hire arrangements and contracts with restrictive language. “I strongly advise all photographers to … refuse to sign until rights-grabbing language is changed,” implores author M. Scott Brauer on his dvafoto blog. “This is the only way for photographers to maintain their livelihoods.”

Puppies, © Art Rogers, 1985

String of Puppies, © Jeff Koons, 1988

Puppies for Sale: Rogers v. Koons (1992) was a landmark case involving copyright infringement, substantial similarity, and fair use for parody. Photographer Art Rogers made the photograph (top) of a man and a woman holding puppies, which appeared on greeting cards and other merchandise. Artist Jeff Koons found the picture on a postcard, removed the copyright symbol and asked his assistants to create a sculpture (bottom) based on the photograph. Rogers sued for copyright infringement and won a confidential settlement. The court ruled, among other things, that the fair-use defense of “parody” did not apply and that an ordinary observer would find substantial similarity between the two works.

The Graphis article’s discussion includes views from freelance artists as well as noted leaders in the creative community, such as Tom Kennedy, Executive Director of the American Society of Media Photographers (ASMP). “Photographers should get involved in professional organizations because they are the only mechanism to provide a countervailing point of view,” Kennedy says. Attorney Nancy Wolff, president of the Copyright Society of the USA, advises freelancers to educate themselves on copyright so they understand their rights when they handle contracts.
Bogre will continue her reportage of copyright issues in Graphis Journal #358 in “Copyright Part II: A Survival Guide.” This piece offers detailed tips on how visual artists can protect their rights to their creative work—including the ins and outs of posting images online in the digital era—as well as a clear explanation of what constitutes infringement. “Copyrights represent the most valuable asset a creative person has in the 21st century,” Bogre writes. “The bottom line is, you control the copyright to your work. Don’t give it up lightly.”
Read Michelle Bogre’s extended article on copyright and contract issues in Graphis Journal #357.