Rock group seeks photographers' copyright

An unedifying story of copyright absolutism from the BBC: the Stone Roses, who seem to me to belong to such a recent period of rock history that they cannot possibly be holding a reunion, appear to have caused considerable offence to photographers hoping to cover that reunion. Or perhaps it's just their management that has done so. As a sometime aspiring (and in a small way practising) photographer in that same field, though long before the Stone Roses, I sympathise with the practitioners of the art, who are reportedly being asked - nay, required - to sign contracts under which the copyright in images they make will become the band's (or the management's?) property. One of them, Ian Tilton, is reported to be asking colleagues to boycott the event.
A far cry from the time when I'd approach the performers after a gig at university and ask if they'd like copies of the photos I had taken for the student newspaper. Even, come to that, the time when I would come home from a gig at Newcastle City Hall with a roll of film of Elvis Costello or Talking Heads - I'd probably find stern warnings about taking photos at all now, and risk having my camera taken away from me. But those were the days before you could use a camera to make phone calls ... 

Consent to being photographed

What can a photographer do with an image of a well-known person? Or even someone who's not well known - who may still be what in modern parlance is called a "celebrity". A recent case from the United States sheds some light on the question - though the judgment is remarkable more for the care with which the court circumscribed its reach than the actual finding.

This is the district court for the Central District of California's decision Shirley Jones v Corbis Corporation (Case No 10-8668 SVW (CW)) (hat tip to Bob Tarantino of Heenan Blaikie in Toronto who tipped his hat in turn to THR, Esq). Shirley Jones, who was in the 1970s TV show The Partridge Family (which I had the great good fortune to escape ever seeing) not to mention films like Oklahoma!, Carousel, and Elmer Gantry , took exception to the use of photos of her in "red carpet" situations. She claimed her right of publicity was being infringed by Corbis (a stock photography agency, in case you haven't had a run-in with them or otherwise heard of them: it was founded, and is owned, by one Bill Gates) when they showed samples of images of her on their websites.

The court rejected her claims. If you show a celebrity a red carpet and a few photographers, he or she is likely to start striking poses: they know what is expected of them, and what will happen to the results. That's not exactly what the court said, but I think it's a fair paraphrase. Thereafter, the images are sold by the photographers - why else would they bother taking them? - and showing them in the manner about which she complained, even through the medium of Corbis, was entirely consistent with the implied consent given by Ms Jones. There was no evidence to support her claim that the consent was personal to the individual photographers.

At some "red carpet" events, notices are posted stating that the celebrities being exposed on the carpet consent to photos and moving images being recorded and reused, which not only kicks any argument like Ms Jones's into touch for those events but also shows pretty clearly what custom and practice is. Indeed it was not disputed that she consented to the photos being taken, and to their being sold. Her actions, and the context in which she performed them, added up to consent to everything that subsequently happened to the photos. What I don't see in the judgment, and which would be interesting to know, is when the photos were taken - I assume they date from the period of recent history in which this way of dealing with the images would have been commonplace. Had they been images from an earlier era, pre-digital, pre-Corbis, the extent of her implied consent might have been very different.

Although this is a decision of a US Federal court on US law (common law and statutory rights of privacy were pleased, though I am not sure after quickly scanning the judgment which statute is invoked), there are lessons for photographers - and for celebrities, and event organisers - elsewhere, even if (as in the UK) privacy rights are much less well-developed. Put up one of those notices, to start with, so there is the least possible doubt about what's going on. Photographers should be able to rely on the subject's implied consent just because they are there, and if the celebrity is striking poses for the photographers so much the better. Beware, however, if they are hiding their faces, or instructing photographers not to take pictures: that would probably override any implied consent, though you're more unlikely to encounter that sort of reaction on a red carpet. It's a rather special environment, and special rules apply which would not apply if you encounter the celebrity on the street.

Picture agencies and unauthorised use

Out-Law reports that Getty Images has recovered nearly £2,000 in damages (and its legal costs) from a removal company that used one of Getty's images on its website. Pinsent Mason, the firm that publishes Out-Law, acted for Getty.

The damages were awarded to Getty despite that fact that the defendant removed (appropriate!) the image from its site as soon as it received a letter about it. Most recipients of similar letters react the same way - then they plead innocence, perhaps on the basis that their website designer (make that ex-website designer) had done it. Alternatively, as in this case, they then ignore it and hope it will go away. Getty are not the sort of people who are inclined to go away.

I sympathise with all concerned, to some extent. Getty are not selling their own work: they represent professional photographers, who need to protect their copyright. They cannot allow infringements to pass unremarked. On the other hand, the defendant could be (pretty) innocent, which might give them protection from paying damages for infringing. They probably should have dealt more carefully with the matter in the contract with their website designer (but there often isn't a contract at all), and the website designer should have known better - after all, they are charging a fee to do the work and should do it professionally. They should also know that just because they didn't get it from the picture agency's site, there might not be an agency somewhere that has a right to be paid.

What I don't have much sympathy with is the heavy-handed attitude of the agencies, or the way they go about collecting what is due. They don't usually threaten to sue for copyright infringement, which would be expensive and uncertain: they send an invoice and then claim when it isn't paid. They can do that in the small claims court rather than the High Court, although what happened here is that they did sue for infringement in the High Court. They probably thought it worthwhile pour encourager les autres: it's also useful when your lawyers produce a widely-read journal in which it can be publicised, a very astute move by Pinsent Mason.

The normal measure of damages in a case like this would be (as Out-Law notes) the commercial rate for the use of the picture. Getty also claimed the cost of tracking down the infringement along with additional damages, available if the infringement is flagrant, and what they referred to as "insidious damages", representing the damage caused to their ability to charge a commercial rate to other users. The settlement agreement does not explain what happened to these claims, but £2,000 sounds like the standard-rate charge without either of these types of extra damages.