What you can’t publish – obvious, apparent, unambiguous, noncomplex (insert any other synonyms for clear here) as it may seem the answer is not so cut and dry. Okay, when photographing-human subjects – no images that are copyrighted. There that was not so bad – but as Kantor explains in his article “Legal Rights of Photographers” is not so simple. Kantor (2009) explained the procedure in four clear questions with not-so-clear answers: “Did the subject of the photo have an expectation of privacy; Is the picture embarrassing to a typical person; Does it put the person in a false light; and Misappropriation” (p. 3-4). Okay – misappropriation is not-so-much a question as it is a statement but Kantor runs with it anyway. Problem – all of these questions lead to gray a gray blurred area that leaves quite a bit up to interpretation. What is embarrassing to me might not be to you and – believe it or not – some people are born to cheese it up while others prefer to keep his or her Kool Aid to themselves. Where does this leave us as photographers? Simple – just ask the subject before you shoot or get permission before you publish. That seems simple enough – yeah right.
Reference
Kantor, A. (2009, May). Legal rights of photographers. Retrieved July 10, 2010, from http://www.andrewkantor.com/useful/Legal-Rights-of-Photographers.pdf
What are “Derivative Works”? Okay, I will admit here that I had no clue as to the what’s, when’s, where’s, how’s, or why’s (of course not all of these apply but they sound so good together I could not resist) of derivative works – even more muddled up is how copyright laws relate to such artistic works. Kahn (2009) explained, “We begin with the ‘Thomas & Friends’ toy train figures, which are themselves ‘derivative works’ based on the popular ‘Thomas & Friends’ train characters from the animated television show, which is itself a ‘derivative work’ based upon The Railway Series, a set of story books dating back to the 1940s about a fictional railway system on an imaginary island” (p.1). Make sense yet? Maybe this will help – they are all copyright protected and each were only created, marketed, and filmed with permission of the owner of the underlying copyright (in this case the author and/or illustrator of the original storybooks). So what happens if you take a photograph of one of the many “Thomas and Friends” toys – could you in-turn copyright your photographs and publish them without fear of a lawsuit? Believe it or not – as complex as all of this is and as far as I can tell from the article – you, the photographer, could. Kahn (2009) explained the courts, “focused on the photographer’s originality in “the rendition of the subject matter—that is, the effect created by the combination of his choices of perspective, angle, lighting, shading, focus, lens, and so on” (p. 2). There you have it enlightening, resourceful, and mindboggling.
Reference
Kahn, M. (2009, November). Photography, copyright, and “derivative works”. Retrieved July 10, 2010, from http://www.artlawteam.com/2009/11/articles/copyright-2/photography-copyright-and-derivative-works/
