Who owns your image?

Playmate vs Playboy

A landmark case broke on the shores of California in 1998 when Terri Welles, Playboy magazine's 1981 Playmate of the Year, used a commercial web site bearing her name, TerriWelles.com, to sell autographed pictures of herself together with her Playboy life story, membership to her fan club, and nude images. Her site also displayed advertising from adult Web sites. Ms. Welles, a single mother, used the site to earn a living through electronic commerce.

This did not escape the notice of Hugh Hefner’s Playboy Enterprises, who filed a $5 million lawsuit against Ms.Welles in early 1998, charging that she infringed on the company's trademarks. Playboy Enterprises argued that it owned the trademarks for the terms "Playboy," "Playmate of the Month," "Playmate of the Year," and the initials "PMOY," all of which were used on Ms. Welles' site. The lawsuit filed also claimed that Ms Welles violated trademark law by embedding the magazine's title within the coding of her site within hidden "metatags", keywords used to attract online search engines to web sites. Playboy Enterprises had previously already won a battle against the use of its trademarks Playboy" and "Playmate" in web site metatags. Ms Welles claimed she had a First Amendment right to post her resume online to make money, using her qualification of being the “1981 Playmate of the Year", that describing herself as "Playmate of the Year" was "fair use" under US trade mark law as it was an accurate description of the title she had been awarded and arguing that "Playboy just wanted [access to] all the Playmates [images] to be… [restricted to their] Web site."

Playboy actively sells its own services online, receiving over 1.4 million page views per day, together with a Cyber Club for subscribers which features Playmate Web sites and online chats with Playboy centrefolds, a service for which members pay upwards of $100 per year. Playboy Enterprises claimed that "Playmates [were] given the opportunity to sell memorabilia through Playboy Cyber Club and to use Playboy's trademarks on their own Web sites under appropriate license from Playboy," whilst Ms.Welles herself then charged $84.95 per year for access to "exclusive" nude photos of herself, which she claimed were not shot by Playboy.

Legal experts believed that Welles had a strong defence founded on her rights to free-speech and fair use rules (which permit the use of trade marks registered by someone else in limited circumstances). Robert Welsh, intellectual property attorney for Mitchell, Silberberg, & Knupp of Los Angeles stated, "That Welles was the 1981 Playmate of the Year is a factual statement… the real question is whether you're trying to use a trademark as an identified source of a product or service." A judge however refused to grant an injunction against Terri Welles to prevent her from using terms such as "Playmate" and "Playboy" on her web pages and within her meta tags. The judge felt that Welles had a legitimate case to use them in order to describe herself, and to catalogue her web site properly within search engines. The judge further pointed out that Welles had not used the terms in an attempt to mislead Internet users into believing that they were visiting a Playboy site. Playboy's final appeal against the ruling was rejected by an Appeal Court on Feb. 1, 2002. This was a landmark case as it constituted the first legal ruling supporting the use of trademark terms within meta tags.

Other Internet proprietors have not fared so well in confrontation with Playboy’s image empire. As the Playboy Empire’s business is based on its proprietary content, Playboy Enterprises have prosecuted a ferocious campaign against web sites which allegedly infringe on its copyrights or trademarks. Indeed in December 1997, a federal court in Texas awarded Playboy Enterprises $439,000 plus attorney's fees in the company's case against WebbWorld Inc., a fee-based daily service which automatically filtered thousands of images from trading newsgroups that contained adult content. Playboy Enterprises sued on grounds that its images were being filtered without its permission. Playboy has even gone so far as to incorporate electronic watermarks within its digital images to facilitate their tracking and identification, using special Web-crawling software to search the Internet looking for the watermarks in images or sites not approved by Playboy. Using this technology Playboy Enterprises won an Internet copyright infringement suit filed against Five Senses Productions, a San Diego-based Internet publisher in 1998. Playboy was awarded some $3.74 million in damages after Five Senses used roughly 7,500 of its images without permission. Another idea popular with Playboy was the incorporation of small IP2 Java applets attached to copyrighted or trademarked material, which both prevents the downloading of copy written images from websites, and also any subsequent attempts to send the image from one user's computer to another location. Welles won on "fair use" grounds under trade mark law (because she *was* a Playboy model and "Playmate of the Year"), but where sites use images which are Playboy copyright and used without permission – particularly in large numbers or for commercial gain - they will struggle to find a legal defence – US and UK have certain defences to copyright infringement: research, criticism and review etc, but these are of limited application. However there is a difference in terms of Playboy policy here between attempts to stop ex-models making any advantage from mentioning the name (which many would regard as over-aggressive bullying under the guise of IP enforcement) and attacking the sites which reproduce hundreds of images over which Playboy has copyright.

Diamonds, pearls and Internet queens

Along with every form of communication technology invented, from the printing press to the 3G cellular phone, the Internet has been used to communicate images and pornography, primarily via websites and news groups. In a popular mass market, the icons of the day prevail within the public consciousness, and arguably the most popular genre is that of images of nude celebrities. As the advent of mass media has further increased public fervour for human sexual icons, creating the self-perpetuating 'cult of celebrity'. A picture is a thousand words, and a naked picture of an attractive celebrity is by definition a sexual icon, the human “raison d’etre”. Thus images of celebrities are big business, and naked images bigger still. The Playboy Empire offers vast sums of money for celebrities to bare all for the masses, whilst less affluent magazines and photographers are forced to filter feed on celebrity pictures which have been taken without consent, or which were captured B.C. (Before Celebrity). Such yellow press journalism proves that in the market of mass media sensationalism triumphs over substance, even of course to the point of creating false or “fake” images using various digital manipulation techniques, or by using those of look-alikes. Whilst the possibility of civil court action (particularly in countries whose laws protect personality rights with vigour: France, Germany and some US states) tends to economically restrict the availability of such photos distributed through the print media, on the vast expanses of the Internet the circulation of such photographs is rife.

It is a mathematician’s theism that all of nature, economics, and even politics may be described by mathematics. Some claim that the number of images of a celebrity present on the Internet is “directly proportional to the popularity and current exposure of the individual, and inversely proportional to her age” (apparently forgetting that stars who have been established for longer have a more substantial Internet legacy). To give an estimate of the scale of the demand for sexual icons and the image trade, a simple Google search can be used to estimate the current popularity of lady celebrities. A search of the current Internet rankings for Revlon model and Star Wars actress Natalie Portman (born June 9, 1981) reveals 629,000 Google hits, and over 27,700 images, both fake and real. Cult TV star Sarah Michelle Gellar (born April 14, 1977) has over 788,000 hits and 40,400 images, Tennis star and pin-up Anna Kournikova (June 7, 1981) records a popularity of 870,000 hits and 65,700 images whilst pop icon Britney Spears (December 2, 1981) has a massive 6,990,000 hits and 198,000 images under her name. Longer established pin-ups such as 90’s stars Pamela Anderson (July 1, 1967, 5,140,000 hits, 71,500 images), and Anna Nicole Smith (November 28, 1967; 1,730,000; 9,330) suggest that sexual icons form a lasting impression upon the collective consciousness of a culture, whilst 50’s pin-ups Marilyn Monroe (June 1, 1926 – August 4, 1962; 2,680,000; 49,700) and Doris Day (April 3, 1924 - June 22, 1988; 1,510,000; 5,270) suggest that icons of previous eras have endured through the Internet, as has the intellectual property of their legacy.

Perhaps no two lawsuits could be used more topically to illustrate the legal issues surrounding the ownership, validity and dissemination of images than those of Russian tennis stars Anastasia Myskina and Anna Kournikova. On August 11, 2004 Ms Myskina filed a $8 million lawsuit in a Manhattan Federal court against GQ magazine (owned by Conde Nast), claiming that it allowed topless images of herself to appear in a popular Russian magazine Medved (“Bear”) without her permission. The images were originally taken by the photographer Mark Seliger for a feature in the October 2002 edition of GQ, and Ms Myskina claimed that she never intended for the two photos to be published. Ms Myskina’s lawyer stated that his client retained the right to approve the photos prior to publication and any subsequent resale was not permitted within the contract. Conde Nast in turn alleges that Seliger sold the photos on to Medved magazine, and that GQ failed to prevent him from doing so. Whilst this case awaits settlement, another notorious case has already been settled by the judge’s hammer.

After a legal conflict which lasted over a year, Penthouse magazine eventually settled with Anna Kournikova for falsely claiming that naked pictures featured in its June 2002 issue were of her. Penthouse fiercely disputed the validity of the images within its extended 13 page feature. After realizing that the images were not of her, Kournikova immediately filed a lawsuit in a Los Angeles District Court, claiming that her name on the cover in association with the pictures invaded her privacy and defamed her image, currently worth some $13 million a year in endorsements and photo shoots outside the tram lines.

Classes of Images

Whilst images and their ownership might appear to be a relatively straight-forward issue, as with most legal matters, this is far from the case. “Real” images of celebrities tend to fall into one of four categories: movie snapshots or short clips taken from nude or partially nude scenes within non-pornographic mainstream films, and are often taken from stills of low quality; paparazzi photographs of celebrities taken unawares; photo shoots taken from magazines which may be distributed as digital originals, or else scanned into digital form, and stolen or leaked private materials. However it should be clarified that ownership of copyright is not usually difficult to work out (it's whoever takes the photograph, makes the arrangements for a film etc); more difficult is a ragbag of legal rights applying to differing extents across differing countries, which may restrict the freedom to publish the materials. These include defamation, personality rights, breach of confidence or privacy.

The advent of more powerful computers and image processing software has inevitably led to an increase in both the production and the distribution of fake images. Fake images not only purport to represent a celebrity, but also to attempt to depict the individual as being in a certain place, situation or in particular company at a given time. Obviously this may extend to explicit depictions of nudity, sexual intercourse or fetishist behaviour. So advanced is the art that some images are only recognizable as fakes because of the nature of their content is deemed to be too incredible or unlikely to be true, however embarrassing or entertaining they may be. The legal issue here does not tend to be "who owns the copyright here?" – typically the creator of the new elements of the image, together with the copyright owners of other pre-existing element (such as the image from which the model's face has been taken). The more interesting legal issues are making the image available illegal because it infringes personality rights, or because the situation in which the celebrity appears is defamatory.

The thorny issue of modelling releases and copyrights

Legally the term “release” means "permission", that is to say that by granting such a release you won't pursue a legal action or injunction (i.e. attempt to stop) the person(s) you are granting the release to from using the rights you have newly granted them. Releases are important as in a world driven by the visual image, and every nation or state has a statute about a "right to privacy" or the rights to the “use” of a person’s image. Essentially, many jurisdictions states that no person is allowed to use another person's photo for any commercial use without their express permission, which is one reason French newspapers are light on celebrity pictures. It is not true to say that every jurisdiction has this rule: in the UK, if I take your picture I can use and sell it without your permission unless you can show that it is defamatory, in breach of confidence (Hello!'s publishing of Douglas-Zeta Jones wedding photos were in breach of confidence) or privacy (e.g. the Naomi Campbell case in the UK where the Mirror's photo of her emerging from a Narcotics Anonymous meeting where she had a "reasonable expectation of privacy" infringed her right to privacy under the Human Rights Act 1998), or is "passing off" (Eddie Irvine successfully sued Talksport because some advertising featuring him implied he had endorsed the product).

However for most models, a photographer using a photo in a brochure without such a release might be successfully sued, because there is no way of knowing whether the model wanted to have their photo displayed or used commercially or publicly, given that the photos might have been for personal or private use. The model might even legitimately claim that the resulting distribution of their image caused undue personal embarrassment or emotional distress. What rights the model has varies from one country or state to another, but without a modelling release form or contract, the model could subsequently sue the photographer for using the image on the basis that it infringes his or her personality rights, or invaded his or her "right to privacy" (Naomi Campbell in the UK and Princess Caroline in Germany have run this argument successfully in the last 12 months against paparazzi photos) Whilst most professional photographers should understand that is the law that they will always require a release from models for the commercial use of their images, many simply ignore this reality or count upon the ignorance of their subjects. Modelling release forms are of course the usual way in which photographs intended for commercial use (even only if intended for display in a portfolio or upon a website) are disseminated.
A modelling release, however routine, is an important issue, as it allows photographers and their clients to use or sell your photo. As with any legal document it should be read carefully to clarify which rights you are assigning before signing. Release forms fall into two broad categories, unlimited or limited. Unlimited releases allow the photographer or his client to use the photos in any manner for any length of time, whilst limited releases state the photos can only be used in certain media, or for certain purposes such as in a given gallery display or medium, or for a certain duration.

Photographers should routinely obtain a signed release form from models for any images which they intend to publish or display. In most legal systems the act of publishing an image without prior written consent creates a difficulty. Whilst litigation may be pursued, the UK courts have formulated test of "reasonable expectation of privacy", and in cases where a model has agreed to a photo-shoot with a professional photographer, it may be hard subsequently to argue that the photographer was not expected to use them commercially. The main point is that not having release means no proof of an understanding, which in turn creates risk – but privacy is probably the least strong argument a model would have. Many publishers in fact will not accept photos which are not accompanied by release forms. Ethically publication without written consent is socially and professionally frowned upon. The issue of release forms also extends to personal and intellectual property. It is illegal to photograph or publish a photograph of any trademarked or copyrighted items, such as logos and T-shirt designs, within a published photo without the owners consent, although many jurisdictions will allow "incidental use" of copyright works (for instance filming a scene in Manhattan will not infringe the copyright in the architects drawings of the skyscrapers) and "fair use or dealing" for criticism or review amongst others. Indeed litigation is not uncommon when a commercial photo includes another individual or company’s intellectual property (i.e. designs, logos or trademarks). The long and short of it is that in most jurisdictions, you the model will have rights to control use of your images and all commercial use and publication of them, unless you specifically permit otherwise.

Negatives and Copyrights

The issue becomes somewhat cloudy when the twin issues of negatives and copyrights are brought into the picture. Yes the photographer does need permission for the commercial use of your images, but the model must understand that in almost all situations the photographer or his client retains the ownership of the copyrights to and the negatives of the photograph he or she has taken, or indeed of any other media such as a movie shoot taken within a photography session. A model should not expect to be given any negatives or to have copies made of any photos he or she may receive without the photographer's written permission to do so. Photo negatives and prints, and the right to use them are the very livelihood of the photographer. Most photographers will not give away their negatives, but equally understand that models need their photos to show to agencies and new clients, and so will often grant a copyright release statement to the model. This entitles the model to make copies of the print for self-promotional purposes only, and also permits the model to use the original photographic print they purchased to be copied or reprinted in other forms such as on their business cards, comp cards or web sites. Thus is in the legal domain of the image it takes two to tango.

If as a model you obtain a copyright release it is important to follow the terms of the agreement. Many photographers will require the model to obtain photographic copies of the prints only from the negatives to ensure not only that all the prints are of the highest possible quality for the sake of their reputation, but also to guarantee their income (as they have ownership of the negatives). Photographers often insist that if their work is reproduced that a photo credit appears upon all prints which is clearly legible. Another common demand is that the model doesn't charge any fee to view his or her images, for example charging to access images on a commercial website or for copies of a portfolio. This is naturally to prevent the model from "reselling" the photographer’s work. It is a good idea when you have copies made to ensure that the photographer's copyright notice is on the print or is printed on the back. Without such a copyright, anyone finding your photo may claim to believe that it is within the "public domain". Armed with this excuse they might scan in and disseminate the image, and if they have a copy of your image without a copyright notice, then you might be held responsible by the photographer or their client for "distributing" the image in violation of copyright laws.

Frequently assumed mythologies of the image trade

These are so frequent and understandable that these Frequently Assumed Mythologies (or FAM’s) are as worthy of mention as any FAQ section.

"The image was obtained from a Usenet newsgroup so it must be within the 'Public Domain'."

The term "Public Domain" has the specific legal meaning that no one has exclusive rights or control over the image, and that anyone may use it as they please. There are two instances in which an image may fall within the public domain, and these are when (a) the owner surrenders his or her rights by signing a document, or (b) if a given period of time has elapsed since the owner died which may vary with the jurisdiction (70 years in Europe). Even when an owner posts an image to Usenet, he or she does not forgo their rights to that image, any more than publishing the photo in a magazine or on a website would do. In fact if an owner posts to Usenet, the only legal license the owner gives is for the replication and transmission of that image within the Usenet system. Many websites have been successfully sued for copyright violation (pirating) after publishing content derived from Usenet. Any image posted to Usenet against the owner's wishes constitutes a violation of copyright, as does any subsequent copying or misuse. This is no small matter. Indeed in December 1997, a federal court in Texas awarded Playboy Enterprises $439,000 plus fees in settlement against WebbWorld Inc., which had automatically filtered thousands of adult images from trading newsgroups. Playboy Enterprises successfully sued on the grounds that its images had been filtered without its permission.

"If an image does not have a copyright notice, it is therefore not under copyright and I am entitled to use it freely."

In most cases image copyright is valid whether or not there is a copyright notice displayed. Whilst a copyright notice © serves to act as a deterrent, it also prevents any subsequent infringement being attributed to an unwitting error. The technical reason for its prevalence is that countries who have signed one of the international treaties on mutual recognition of copyright (called the "UCC") will only grant protection to foreign photographs where the © symbol, the name of the copyright owner and the year of first publication are stated. In practice a © may be omitted because an owner or legitimate user does not wish to impair the photo, or even because an intermediary infringer has deliberately removed the notice which is in of itself a serious legal violation. Copyright is denoted by the use of the © mark, the word "Copyright" or by the abbreviation "Copr.", and is often accompanied by the year, and owner’s name. Use of the phrase “All rights reserved” is used to reinforce the legal position that probably applies anyway (use without permission is prohibited). The golden rule is that someone almost always owns copyright to an image, and you will need to obtain their permission prior to using it.

"Copyright occurs at the point of image capture and I do not need to register copyright"

This is correct in the UK and most European countries: copyright arises automatically when the photograph is taken.

However, in the US, this is a common misinterpretation, as whilst the photographer does own copyright without registration, they should be registered with the Copyright Office to prevent theft before they are published or distributed. If images are registered, copyright pirates will be liable for damages of as much as $150,000 for each misused photo, plus the attorney's fees and expenses; and may also be subject to restraining orders. Without copyright registration of an image it is practically impossible to convict an image pirate.

"Violation of copyright infers that I am making money from the images."

Infringement of copyright is not excused on the grounds of a non-profit motive, even if it not malicious. Sharing someone else’s creative work or intellectual property is perceived as detrimental to the commercial value of the infringed images, as the pirate is distributing a commodity free of charge for which they might otherwise receive reimbursement. Where use is made of images without the copyright owner's consent, the damages may be lower where no money has been made, but may still be significant (and legal costs – typically awarded against the loser in a court dispute - can be very high).

"Publishing on my web site constitutes 'Fair Use' so I haven't violated copyright".

The term "Fair use" or "fair dealing" is a common legal "defence" against a claim of copyright infringement, which originally arose to permit the use of copyright material for purposes deemed socially gainful such as news reporting, criticism or review or education without the express permission of the copyright owner. The "Fair Use" exemption normally covers only a quotation or a small representative portion of a work, and must include an author accreditation or attribution. Fair use is usually for non-profitable ends, and is seldom permitted where the use of an image competes directly with the distribution of an image or otherwise harms its commercial value. As most “fair use” situations involve quotations from text, it is difficult to ascribe “fair use” to images published on the Internet. In these instances the pirate is taking credit for the work or image in its entirety, is not acknowledging the creator, is impacting upon the images market value, and is competing directly with the owner in its publication.

"It would be difficult to convict me in court"

This could not be further from the truth. An image pirate is far more likely to be sued in a civil court than to be criminally charged. A civil defendant has fewer legal rights than a criminal defendant, and the plaintiff only has to convince the judge that he or she is more rightful than you in action, and is not bound by the burden of "proof beyond a reasonable doubt" (but, in the UK, by a lesser burden – "the balance of probabilities. All a copyright plaintiff has to prove is (a) ownership of the copied work; and (b) copying or other misuse by the Defendant without consent. The first point requires in the US a demonstration of a Certificate of Registration from the copyright office (and in Europe proof of ownership – often by sworn statement of the photographer, and the second point is simply made by showing his or her photos alongside the images which are purported to have infringed copyright. A restraining order from a Federal court may be provided within days and a judgment may take only a few months, and copyright penalties of as much as $150,000 per photo have been known.

The issue with Internet publication – even where a flagrant infringement of legal rights – is finding the individual or organisation responsible and enforcing a court judgment against them (a practical problem exacerbated when they are in another jurisdiction). Most countries have legal mechanisms for forcing ISPs to reveal the identity and address of who sits "behind" an IP address (the unique identifier assigned to each PC accessing the Internet), but there are technologies allowing users to "hide behind" other IP addresses, and copyright owners may need to get a court order to force disclosure by the ISP in any case (who may otherwise be prevented form disclosing customer details by data protection or confidentiality laws). Where the user turns out to be a student in Kiev, and the copyright owner is in London or New York, relying on formal court action may not be the answer.

Because of these difficulties, copyright owners have tried to pressurise the people involved that they can attack: the ISPs. In the 1990's, countries with high Internet use had vigorous debates about the extent to which the companies granting access to the Internet to users and hosting content on behalf of their users should be responsible for that publication. The results have been the Digital Millennium Copyright Act in the US and the Ecommerce Directive in the European Union (and now implemented in most of European countries outside the 10 recent joiners). Both take the approach that the ISPs who only provide access to the Web are not liable for content users may access through their service, and – most important in practice – that ISPs who provide webspace for their customers ("hosts") are only liable for damages claims for content posted by customers once they have been formally notified of its presence and the fact that it infringes somebody's IP rights. Each implements a "notice and takedown" procedure in the terminology. The upshot for copyright owners is that often the most effective way to police infringers is to approach whoever is running the website and their host ISP demanding removal of the material. Whilst some ISPs (still) believe in the Web as a democratic medium where users should be able to publish what they like, many will be persuaded by the level of legal risk to comply with a takedown request.

Summary

Copyright Law may be summarised as follows. Without specific permission, it is illegal tocopy, publish, publicly display or otherwise exploit another’s images. Photos distributed on newsgroups are not within the "public domain", and it is very rare that they are. Copyright is normally valid without a copyright notice and the “Fair Use” doctrine is of very limited application, and Copyright infringement is deemed to be independent of motive. Copyright violation may be considered a serious crime, and is always a civil wrong exposing the infringer to significant financial risk. As a general rule if you do not have specific permission, preferably in writing from the owner of a photo, you cannot legally display it on a website, post it to the Usenet, copy it, or distribute it by Email or post, make photos derived from it, sell it, or otherwise exploit it for commercial gain. Such is the visual world we live in, and in the eyes of the law the captured image is a sacred cow.