A question about the Palin Newsweek cover

Canon RF 24-70mm f/2.8 L IS

11/18/2009 10:29:07 AM · #1

I don't want this thread to turn in to a political discussion, it is simply a question about the ins and outs of photo usage rights.

This week, Newsweek magazine has a photo of Sarah Palin that was originally taken as part of a photoshoot for a Runner's World magazine feature, earlier this year. It has caused some controversy, as Palin objects to it's usage, questioning it's context.

Runner's World has issued the following statement:

"On the cover of this weekâ��s issue of Newsweek is a photo that was shot for the August 2009 issue of Runnerâ��s World, in which Sarah Palin was featured on the monthly â��Iâ��m a Runnerâ�� back page. Runnerâ��s World did not provide Newsweek with the image. Instead, it was provided to Newsweek by the photographerâ��s stock agency, without Runnerâ��s Worldâ��s knowledge or permission."

I understand that the photographer holds the copyright, but is there some other thing going on here as well? I find it interesting that Runner's World, a magazine that has been around for years and is part of a larger publishing house, would use the words "...without...permission." I know it is probably all in a contract somewhere, but typically, in a situation like this, if someone has contracted a photographer for a specific subject, do they have future rights to those photographs? Was the stock agency wrong to give the photo to Newsweek?

glad2badad

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Lensbaby Sweet 35 Optic

11/18/2009 10:32:18 AM · #2

If it wasn't licensed as "Exclusive Rights", then sure, the photographer's agency could use it again.

AJSullivan

11/18/2009 10:44:19 AM · #3

What he said.

But then the whole potential that it was a contracted employee doing work for hire is there as well.

kirbic

Canon EOS R5

11/18/2009 10:52:22 AM · #4

Originally posted by AJSullivan:

But then the whole potential that it was a contracted employee doing work for hire is there as well.

That's really the potential rub, IMO. If it was shot by the photographer while he was under contract to Runner's World, her/his work on that shoot could fall under "work for hire." If so, her/his contract with Runner's World should state that.
If the photog was not under contract for the shoot, and the photo was not licensed exclusively, then Runner's World doesn't have a leg to stand on.

11/18/2009 10:57:36 AM · #5

A client may not license ALL the images from a shoot. Exclusivity may only cover images used in the original article and "similars". The unused images may be limited to editorial usage, (which would be a Newsweek cover) or whatever. It's not at all unusual for the agreement to allow the photographer to use the "extras" as stock. I'm sure it's all in the fine print.

As to Palin's objection to the usage, she has no claim whatsoever to the copyright on those images, she didn't create them. She does have some control over the usage of her likeness, however that control is only for to commercial usage, not editorial usage. She may not be bright enough to understand the distinction.

Now, RW's implied claim that their "permission" is necessary, is again, dependent on the details of their agreement with the photog. If the photog licensed the image to Newsweek in violation of his agreement with RW, the photographer, or possibly his agency, is in trouble, not Newsweek.

11/18/2009 11:01:55 AM · #6

Originally posted by kirbic:

Originally posted by AJSullivan:
But then the whole potential that it was a contracted employee doing work for hire is there as well.

That's really the potential rub, IMO. If it was shot by the photographer while he was under contract to Runner's World, her/his work on that shoot could fall under "work for hire." If so, her/his contract with Runner's World should state that.
If the photog was not under contract for the shoot, and the photo was not licensed exclusively, then Runner's World doesn't have a leg to stand on.

The "work for hire" usually implies and employee/employer relationship, simply being on contract doesn't define one as an employee, there are a lot more criteria to determine if someone is an employee or independent. But, you're right in that it should be all spelled out in the agreement between the photographer and RW.

Canon EF 300mm f/2.8L IS USM

11/18/2009 11:09:02 AM · #7

Originally posted by Spazmo99:

It does not appear to be an "extra", as RW had used it in their original feature. (online, but not in print...if that makes a difference?)

Message edited by author 2009-11-18 11:12:20.

Skip

Canon EOS-1D X

11/18/2009 12:36:04 PM · #8

most national publications include an "embargo" clause in their contracts, especially when they allow the photographer to retain their copyright. my USA Today contract has a 90-day embargo that gives them exclusive rights to everything i shoot while on assignment for them for a period of 90 days. after that, i'm free to do whatever i want, and, if they use it again after the 90-day period, they pay me again.

i could easily see magazines like runner's world having a longer embargo period.

NikonJeb

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11/18/2009 01:31:40 PM · #9

Originally posted by Spazmo99:

As to Palin's objection to the usage, she has no claim whatsoever to the copyright on those images, she didn't create them. She does have some control over the usage of her likeness, however that control is only for to commercial usage, not editorial usage.

So.....the subject has less say over her likeness than the producer of the image?

Sa-weet! LOL!!!!

That seems kind of odd, somehow.

How much of that is covered by model releases and pubic domain clauses?

AJSullivan

11/18/2009 01:35:22 PM · #10

The model has almost no say with what you do with the images, outside of whatever was included in the model release. Its not uncommon for male models to have thier images end up in gay sex phone line adds and stuff like that. They don't like it, but ultimately they have no say in it, unless they cover it in the original agreement.

11/18/2009 03:14:38 PM · #11

Originally posted by NikonJeb:

Originally posted by Spazmo99:
As to Palin's objection to the usage, she has no claim whatsoever to the copyright on those images, she didn't create them. She does have some control over the usage of her likeness, however that control is only for to commercial usage, not editorial usage.

So.....the subject has less say over her likeness than the producer of the image?

Sa-weet! LOL!!!!

That seems kind of odd, somehow.

How much of that is covered by model releases and pubic domain clauses?

Model releases are generally for commercial usage. If the photog wanted to license Palin's image for an FHP ad, he would need a release from her. Assuming that he had no model release from Palin, he can still sell the images for editorial use because they're "newsworthy".

There are two separate issues here, one is the copyright to the photos themselves, held by the photographer. The usage of those images by the photog and the magazine is governed by their licensing agreement. Palin has no say over this, unless otherwise specified in the agreement. (That would be very unusual)

The second issue is the use of Palin's likeness. The only control she has is over commercial usage. Editorial usage is allowed, especially since she's a "public figure". Think about it this way, the newspaper doesn't need a model release to put the pictures of criminals in an article, but that same image would need a release if it was being used to sell orange coveralls.

Message edited by author 2009-11-18 15:15:20.

11/19/2009 09:41:40 AM · #12

It looks like there was a one year embargo...which was broken:

//www.dailyfinance.com/2009/11/18/palin-photographer-breached-contract-with-sale-to-newsweek/

AJSullivan

11/19/2009 10:10:01 AM · #13

So even then, the issue isn't on Newsweek still, its on the photog/stock agency.

11/19/2009 12:10:36 PM · #14

Originally posted by AJSullivan:

So even then, the issue isn't on Newsweek still, its on the photog/stock agency.

Correct.

But from another angle....seeing as Newsweek also probably hires photographers to do shoots and works out contracts with them, possibly also with embargoes imposed (so they know how the "game" is played), would it not be incumbent upon them to find out if the Runner's World photos were embargoed? Just asking.