Before you go using any old image you can find in your marketing, you need to make sure you have full permission to use the image. This means having permission not only from the photographer, but from the models as well.
A Model Release Form is an important tool for any photographer. Even if they are shooting images for an informative or educational purpose – a situation when a model release form wouldn’t typically be required – a photographer may choose to use this form so that they have options in the future.
Any time a photo is used for a commercial purpose – for an advertisement, website, brochure, or anything like that – there should be a record of the models having signed their release forms. This allows the photographer to use the image commercially. It also allows the photographer to license or sell the image to someone else or to a company for commercial use.
When dealing with creative work or design and with intellectual property in general it’s always a good idea to make sure that you are protected and that you have the legal right to use and distribute your work. A Model Release Form is just one other tool that you, as a small business owner or creative professional, can use to help protect your legal standing.
We know that the author of a work automatically owns the copyright to that work by virtue of having fixed the work in a tangible medium. But what about the company who hires someone to create their website? And what if that person is an independent contractor, and not an employee of the company? How can a company ensure that it owns the rights to the website it hired somebody from outside the company to create?
Enter the Work for Hire form. The statute of the copyright law, as far as Work for Hire agreements go, is split into two parts. The first part says that a work created by an employee within the scope of his or her employment is owned by the employer, not the employee. Case in point: It’s Business Time, authored by me under the employment of Click Industries, is owned by Click Industries by virtue of my weekly paycheck. I’m going to run into legal trouble if I start a personal side business selling t-shirts with printed excerpts from the blog (not to mention the financial trouble I’ll run into when I find that no one’s buying).
The second part of the statute, which deals with independent contractors, gets a little trickier. The copyright law statute says that that the work needs to be “specially ordered or commissioned” and that there must be a written agreement (the Work for Hire agreement) signed by both parties. The tricky part here is that this doesn’t cover existing works, or a work that has already been started – but it doesn’t explicitly not cover these types of works either. The law can be hazy, and much of the outcome is determined by the courts on a case-by-case basis, but as an employer or someone who hires an independent contractor, protect yourself with a Work for Hire agreement right away.
This, along with other great tips on the scope of the Work for Hire agreement and using it correctly, has been addressed in a great article by attorney Lloyd J. Jassin, author of copylaw.com.
Technically, by the very act of creating a work, you’ve created copyright protection for yourself. Of course, if anyone gets ahold of your work and files a copyright with the US Copyright Office themselves, going into a court and explaining to the judge that you created it first, with nothing to back up that claim, isn’t likely to get you very far. You may have heard of the “poor man’s copyright” (mailing a copy of your work to yourself, keeping the envelope sealed upon arrival), but any attorney worth his or her salt will rip that claim apart — there’s absolutely no legal language to support that your stamped and sealed envelope is evidence of anything other than the ability of the Postal Service to deliver a package. The only way you can be awarded damages for someone infringing on your copyright is to register your work with the US Copyright Office. Period.
With this in mind, unless you plan on keeping your work locked away in an attic for all eternity, it’s a good idea to register the work with the US Copyright Office. It’s cheap, it’s easy, and you can rest easy knowing that you have inarguable ownership of what you’ve worked so hard to create.
As a side note, even if you can’t see yourself ever suing anyone for infringement, there are other great reasons to register your copyright. Imagine this scenario: a screenwriter comes across your book, loves it, and decides she’d love to base her next screenplay on it. She’s a socially conscious individual who wants to make sure you get your fair share, but without a copyright registration, how is she going to know where to mail the check? If you’re registered, it’s simple. She searches the US Copyright Office records by title, locates the work, and sees the owner — your contact information is just a click away.
Stay tuned — in a few days we’ll go over what you can and can’t copyright, the information you’ll need to do so, and what this means for your business.