In the 1960s the Supreme Court ruled that the creator of a work- photographer, musician, writer, etc. owned all rights to his/her work. He/she can do whatever they want with it within legal limits -pornography etc.
If he sells the image to a public entity for their use—a book/ magazine publisher, or digital forum/website, etc. the publisher/website owns half of those rights (in most cases), but his rights are somewhat limited- depending on the agreement between photographer and publisher. Most publications and museums have been through this legal maze and ask for contracts, which should state any limitations such as how long to use (the specific dated book/article, etc.) and one-time -no further use or maybe forever. Coverage - the standard in books, magazines is the publisher buys North American rights. Of course, with digital this gets sticky, and you can’t own International Rights in most cases.
Example: The ALR forum would own half of your photo, but could not send it to another entity, without your permission. If done properly ALR should create a photog contract outlining such points or at least post them on the site. The courts will consider “previous notice” in such matters. I know this is tough among friends but think of this. By the way, these rules apply to photos whether sold or given free.
You send in a rifle photo you thought you took it but have too many to remember for sure. But you innocently send it to ALR, a publisher or any other public entity.
When it gets published the owner of the photo and maybe the gun sees it and doesn’t like it. Sues both you and ALR. In turn ALR sues you – all because you didn’t have an agreement avoiding such possibility.
Here’s another: You go to your buddy’s gunroom and photo his gun. You own the physical photo but are not totally free to distribute it, without his permission, because you took it a private situation.
You go to a gunshow and see a gun on the table- you photograph it. You own the photo and, in most cases, can distribute it, because you took it in a public venue. Fact is, you don’t legally have to ask permission, but naturally it is the best thing to do and best to say how you intend to use it – “can I share it” etc.?
In this world of constant buying and selling of guns, I see a problem that comes up, and probably should be addressed. You photo a gun privately, the owner sells it to someone else or maybe he dies. Can you use it? Probably, if the poor guy is dead. But maybe the next owner doesn’t know you have a photo of his gun and will be unhappy about seeing it in print or online. If you had good solid permission from the original owner, you may be protected against suit. Maybe.
In 40+ years of publishing books and magazines my favorite case was the lady who sued my magazine and the photographer for showing a photograph, (a large clear color pic), of her husband hugging another women on the boardwalk in Ocean City, Maryland. She claimed it embarrassed her and she wanted the photos, including the out-takes for her legal backup for a divorce.
The judge threw it out of court, because as a publisher of a publicly distributed publication the photographer and I had protected copyrights since the couple was in a public situation. And no, she couldn’t have any of our photos. A hotel room photo of the couple would have been far different.
Moral of story: Get a contract or understanding, think of the worst case, get friendly permission to use photos (in writing if not too obnoxious) and never, never, walk down the boardwalk with anyone but your wife.
Patrick Hornberger
