Photography copyright misuse: only the smile remained
“Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”
There are many blogs that discuss the legal ramifications of using other people’s images without consent – photography copyright misuse. However, what about the person who receives consent or a non-exclusive right to use a specific photograph and then digitally altered their photograph? Will this act be considered a copyright infringement? The answer is likely contained in the license agreement.
With the development of digital imagery, PhotoShop™ has become the industry standard in editing software and have opened up a whole new world of possibilities for photographers. Nowadays, you hear about the use of PhotoShop or some other editing software to change an image.
For example, former super model Cindy Crawford’s signature mole was PhotoShopped on British Vogue’s cover she was featured on. Likewise, famous rapper Iggy Azeala’s mole was also erased from a Saturday Night Live promo with PhotoShop. However, we are not talking about simple mole removal.
What is a License Agreement?
License agreements are a simple way to allow others to use your work without granting them full rights, often at a price. For example, a photographer (i.e licensor) may give a website owner (i.e licensee) the use of a specific photograph for a charge or a fee. A license can limit the usage by the licensee, allowing the licensor to maintain his copyright. The license may be exclusive or nonexclusive. An exclusive license exists when the transferred rights can be exercised only by the owner of the licensee, and no one else – including the person who granted the license (the licensor). A license agreement doesn’t grant the licensee ownership of the copyrighted material, merely limited use of it. If the license allows others (including the licensor) to exercise the same license transferred in the license, this license is said to be non-exclusive. If a website owner violates the terms of your licensing agreement, he may be in violation of copyright law as well as your contract.
Whether the PhotoShopped image violates the non-exclusive use agreement depends on the terms of the license
The licensee’s right to make such a change may be addressed in the non-exclusive use agreement. The license agreement tells you what you can or cannot do with the photograph. Was the licensee given the right to make changes in the agreement? If not, then the change is likely infringing (i.e a violation of the agreement). Any time a licensee uses your copyrighted material in a fashion not expressly outlined in your licensing agreement, he violates the copyright. (see Section 501 (a) of the Copyright Act). However, not every breach of the non-exclusive agreement is infringing either. This depends on the nature of the breach. Use of the photograph within the scope of the license period is not a copyright infringement until you, the copyright owner, give notice to the licensee that his use has been canceled. Any use of that photograph after the licensee received notice is infringing. Likewise, if the agreement prohibits reproduction and/or alteration and the licensee alters the photograph by PhotoShop, it is infringing. Anytime a user utilizes the copyrighted work of another in an unauthorized manner constitutes both a breach of the license agreement and gives rise to contract law remedies and an infringement of the licensor’s intellectual property, with remedies provided by statute. (see Section 504 (b) of the Copyright Act)
How much alteration for it to be considered infringing?
As I stated above, removal of someone’s mole is not enough to be considered an infringement. So what is it then…altering the entire picture or parts of it? One change? Ten Changes? Courts tend to look at the “fair use” (see Section 107 of the Copyright Act) of the photo. In the Kientiz v. Sconnie Nation case, the court held that the defendants alteration of an image of Madison Wisconsin mayor Paul Slogin, which was authored by photographer Michael Kientiz is fair use of the photograph. Here, the court looked at the market effect, that is whether the alteration is a compliment to the copyrighted work (i.e allowed) rather than a substitute for it (i.e prohibited).
Generally, changing a copyright property, most likely forms a derivative of the original. Whenever you take an existing image and modify it to create a different image, you are making a “derivative work.” (see Section 106 (2) of the Copyright Act). A derivative work is a work based on or derived from one or more already existing works. (see US Copyright Office Circular 14: Derivative Works) Forming derivatives is a property right held by the copyright owner. The licensee may own a copyright in their version of the image [the scope of which would be limited to the creative elements that licensee added and would not include any of the original content] but absent the right to display derivative work from the owner of the copyright in the original. However, in the Kientz’s case, the court did not fully address a copyright owner’s derivative rights. The court wrote “Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains.”
When in doubt, read the fine print
Although fair use may provide a defense for an accusation of copyright infringement – it does not for breach of contract. It is best to be safe than sorry since no one will be “smiling” when they are served with a lawsuit.