Every professional photographer knows that when you shoot a person, you should get a release signed. That release is consent from the model for the photographer to use her/his likeness. A typical release does not contain anything about copyrights beyond, and even this is fairly rare, something like “Model affirms that s/he does not have any rights in the photographs made, including copyrights…”
That’s all fine and dandy because the courts have made it clear that, in fact, a model or subject in a still photograph does not have any claim to co-authorship of the photograph because, in order to be a co-author, the contribution by the “other person” has to be something that is in itself copyrightable… a “work of authorship” as defined by the Copyright Act. Specifically:
A person’s name or likeness is not a work of authorship within the meaning of 17 U.S.C. §102. This is true notwithstanding the fact that [those] names and likenesses are embodied in a copyrightable photograph.
Downing v. Abercrombie & Fitch, 265 F.3d 994, 1004 (9th Cir. 2001).
So, when it comes to still images, a photographer is the sole author. A release is needed to permit the use of the subject’s likeness under state laws concerning rights of publicity and/or privacy, but that’s it. The independent businessperson photographer owns the copyright(s) in the photo(s) created (assuming, of course, it is not a Work For Hire).
Still photographers are becoming motion photographers. In droves. If you are a still photographer who is now shooting motion, are you using the same releases for your motion work?
Well, then you may be toast.
Here’s the thing: a performance of a subject in a motion work, like the work of an actor in a movie, is in and of itself potentially a work of authorship within the meaning of 17 U.S.C. §102. If it is a work of authorship, then it can be argued that the copyright in the video/motion piece is a work of co-authorship and, you see where this is going, the photographer/director is no longer the sole owner of the copyright in that work.
No, I am not kidding.
Now, this isn’t a slam-dunk argument. For a work to be considered a joint work (co-authorship), there is an intent requirement–that is that the parties intended the work to be a joint work. But who want to prove or, worse, disprove intent? That’s a toughy if you don’t have solid evidence that the work was not intended to be a joint work. And even if in the end you’ll win because the law isn’t for-sure on this, why not protect yourself from a potential lawsuit beforehand?
So, what can you do if you are shooting motion to avoid this problem (or at least reduce the chances of getting sued for co-ownership)? You can get an assignment of copyright signed by the people in your motion work. You could include a work made for hire clause but, in California, that could get you in trouble with the Labor Code, so better to do an assignment of rights clause. You can include it right on the same release form you are already using. Best to get your attorney to draft this clause for you so you can add it into your paperwork with the confidence that your rights and needs are being protected.