Right to Publicity vs. Copyright???

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  • Hello I have a question.
    I'm in a band and we have a lot of fans who take pictures of us at our shows. Recently I was scanning through our archive of pictures fans have taken of us and I came across 4 seperate photos (one of each band member) all taken at the same show that really fit well together. Using those photos I designed what I hope to turn into a really neat poster.

    My question is, since we are the subject of the photos (ie. Models lol) and we have the Right to Publicity under California law (which as I'm sure you know means we retain exclusive control over how our image is used) can we edit and use these photos taken by another person? I dunno if they copyrighted the images. I doubt it, but lets pretend they did just to be safe.

    Does my right of publicity give me the legal authority to use these images as I see fit? In other words are the rights of the subject of a photo more than or at least equal too the rights of the photographer/copyright holder?

    And does the new "arrangement" or "design" I created using these images along with the changes I've made (text, colors, contrast, size, rotation, borders, misc airbrushing, ect) qualify as a new or even modyfied image which I can copyright to stop others from reproducing?

    I read somewhere online that the subject (or model) of a copyrighted photo is entitled to use the work as they see fit and that it is covered under fair-use. Is that true?

    Please respond. Thanks!
  • Hello. ^_^

    The initial photographer doesn't need to formally copyright the image. The image is considered protected by copyright as soon as it is fixed. So yes, assume that copyright of those pictures belongs to the photographer.

    Rights of publicity in California aren't absolute, but IANAL. ^_^; Either way, the right of publicity doesn't give you any form of copyright over those pictures. The fair use understanding is not necessarily true. Fair use does not specificy anything one way or another about you as a subject of the pictures. You have to do a fair use evaluation based on the four factors of fair use.

    If your derivative image is a fair use, then you do have copyright protection in that image. If it's not, then you probably don't.
  • I agree with COvalle that the photographer almost certainly holds a copyright in the pictures, and I share his sceptism about the rumor you read online. I doubt that being the subject of a photograph renders any and all use you make of it fair; such a rule is not in the statute, and I have never heard of a fair use case invoking it.

    On the other hand, the right of publicity very well might give you the power to prevent the photographs from being publically displayed without your consent. That posibility suggests that you and the photographer should talk, since you probably need her consent to make your deriative work and she potentially needs yours to display the photos. Sounds like the seeds of a negotiation to me, especially since she is a fan.
  • I agree with that as well.

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