THE COPYRIGHT ZONE

 Bulb contest

Our Brightest Bulb Revealed

In January, we announced our first annual "Light Bulb" contest for the best question submitted to us; however, the best question (at least in Jack s opinion) had to be disqualified because the inquisitor was Jack s wife. Suffice it to say that we didn t want to impose the award —lunch with us —on someone who has suffered enough already.

Jack s wife had seen a news item about a woman whose iPhone had been stolen. The thief had taken various pictures of himself, which were automatically uploaded to the owner s Cloud account. The owner of the stolen iPhone then posted those images on various social websites in an effort to identify and locate the bum. The question: If the copyright resides with the creator, did the iPhone owner commit copyright infringement by posting the images on Facebook, Twitter, etc.?

Even if the images were created on a stolen iPhone camera, can the thief sue for copyright infringement —irrespective of the artistry of the images?

Who knows, maybe the dirtbag has latent photography talent.

The answer, at least in theory, is yes! Although he s a crook and she s a victim, he created the images with his own talent, but on her phone. Can he file for a copyright registration under these circumstances? Sure he can. The government requires receipt of the fee, the deposit copy of the images, and a filled-out registration form, period. No further inquiry is made at that point.

Having made the registration, the crook is the presumed copyright owner. It then becomes the burden of the iPhone owner to try to knock out the registration in a Federal Court, based on some legal theory; for example, that the images were created in connection with the commission of a crime, and thus no legal benefit ought be gained by the felon. As a practical matter, in the event the crook retained the copyright and attempted to bring a case based on an infringement, it s not likely that he would receive any sympathy from either judge or jury.

AND THE WINNER IS...

We did get a very similar question from reader Richard Lubinski of Lexington, Kentucky, that (after much discussion and a vicious, best-two-out-of-three-thumb-wrestling bout) we determined to be the winner of this year s Light Bulb contest. Congratulations go to

Richard, our brightest bulb. Now, we did take some liberties with the original fact pattern sent to us, but the general idea is still there and Richard "owns" it.

WHAT ARE THE ODDS?

We (Jack and Ed) are walking down a street in Los Angeles when Ed wants to try his hand at shooting a few photos. He asks to borrow my Canon 1 Ds Mark III camera with a 24-105mm lens (about $10,000 worth of state-of-the-art electronics). My camera is programmed to automatically embed my copyright information in the metadata of each shot. (Note: It s a very good idea for all of you to do the same with your cameras, so you don t even have to think about doing it later on. You ll have to read at least a portion of your camera s manual to learn how to do that.)

Back to our story...

 Light Bulb

I foolishly relent and grant Ed s request. As exquisite timing would have it, at that very moment, right in front of us, Lindsay Lohan totals yet another brand-new, Porsche 911 Carrera GTS. Seems that this time, Lindsay tried to stuff Arnold Schwarzenegger, Kim Kardashian, Martha Stewart, and Snooki all into the front seat. Lindsay has rear-ended a fully loaded Corrections Department s bus headed for Folsom Prison. Ed mindlessly presses the shutter. The camera happened to be in continuous shoot mode and thus it starts cranking out hundreds of priceless images. Imagine Arnold, Kim, Martha, Lindsay, and Snooki all pouring out of the car just like clowns do at the circus. Ed pans to the bus bearing signage advertising Lindsay s upcoming free concert at Folsom Prison with the grins of America s Most Wanted beaming from every bus window.

Ed has inadvertently, and without a semblance of artistic ability, captured this year s Pulitzer Prize News Photo. The photos have enormous commercial value, and every news and entertainment organization will pay through the nose for the rights to use them. (Ed sees a sit-down with the gals from The View in his future.)

I may own the camera and the talent, but Ed took the shots.

I remain at the curb fuming, while Ed flies off first-class to D.C. to register the images pronto —just as any self-respecting photographer should do under remotely similar circumstances.

While it s my expensive camera with my copyright embedded into each frame, I, Jack Reznicki, have no claim to the images Ed so brilliantly created. With the occasional exception, such as (but not limited to) a Work For Hire situation, the one who snaps the shutter owns the copyright. Notwithstanding the inspired and brilliant guidance I may have given Ed on prior occasions as to where to point a camera, what to shoot, which end is up, and so on, I still have no claim to the copyright in any of these priceless images.

SECOND BRIGHTEST LIGHT BULB Second place in our Light Bulb contest earns a shout-out to Paul Solvara for his model-release question: "If a model signs a contract or a release using his or her stage name, can the contract or release be enforced?"

The general legal rule is that the use of a "stage" name, or a nom de plume, is valid and will serve to bind the signatory to any contract, release, or agreement, so long as such name is used in a consistent and non-fraudulent manner; for example, Cary Grant was born Archibald Alexander Leach, Ralph Lauren was formally Ralph Lifschitz (we can only assume what happened in junior high school, but look at who got the last laugh), Twiggy was born Lesley Lawson, and Stefani Joanne Angelina Germanotta has been reduced to Lady Gaga. Except for the deceased Mr. Grant, they all can, and likely do, sign using their stage name. And they re bound by the documents they sign. It s not incumbent upon a photographer to ascertain whether the subject has formally and legally changed his or her name by order of a court in the United States or elsewhere. It s good practice when shooting anyone to photocopy his or her driver s license, passport, or other form of ID, when possible. The key question is whether that person signed that document. As recounted in numerous movies, an "X" can suffice for both illiterate mountain men as well as non-English-speaking wealthy immigrants. A Notary Public can affix his or her seal to a mere mark, so long as there s evidence of the identity of the "signor."

MORE ON MODEL RELEASES

On a similar note, Ed had a case years ago where a multinational company was using a well-known supermodel s photo all over the world in every media imaginable. The company was at utter peace claiming in good faith that they had received a signed release from their big-shot ad agency. Upon receiving Ed s claim letter, the company s CEO immediately faxed a copy of the release to Ed. One look at the release and the model exclaimed, "Game, set, and match!" The release, she explained to her counsel, was a forgery.

Cynical Mr. Greenberg insisted that his client prove she was speaking the truth. The lovely model then provided Ed with numerous checks, contracts, her driver s license, other model releases, even her divorce papers, all bearing her signature —and most were notarized.

The model s legal name was, say, "Alice Barri Jones." She and her agencies always used the name, "Barri Jones," and when she appeared in a movie, her credit read "Barri Jones." The model had never in her life signed any document "Barri Jones," but rather "A. Barri Jones" —always. It seems she hated her first name and never used it, preferring "Barri" instead. In first grade, her teacher had told her she couldn t do that, and "had to at least use her first initial when signing papers." She had done so ever since.

The big ad agency for the big multinational consumer company had screwed up big time. It feared losing a giant account because it stole the image and thus didn t have a release. So, someone back at headquarters on Madison Avenue, fearing the loss of his job —or even body parts —simply created a release and signed it "Alice Barri Jones" in sort of an intentionally slipshod fashion.

When copies of the model s real signatures were sent to the CEO, he fired the ad agency and came to NYC to deliver a check to Ed s client personally, because he claimed he "felt just awful and wanted to apologize in person." Ed thinks that if the model hadn t been in the Sports Illustrated Swimsuit Edition, the check would have come by mail.

We d like to thank all who entered our contest. You had some great questions.

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