Shortly after the giant shi*storm that is my copyright battle with SyFy/NBC, I got loads and loads of emails, messages and even texts/phone calls with questions from people all around the cosplay community.
What are my rights and allowances as a cosplayer shooting with a photographer in this community?
As a photographer, what are my rights and how can I avoid conflicts with the cosplayers?
These questions need to be answered to set the grounds straight. I believe I got the attention of quite a number of you guys in the community. I am going to try and take advantage of that and inform you guys how I have done business over the past 10 years in the community, what forms I use and when to use them and most of all, not appearing as some contract-wielding jerk.
I am going to try and break this down into a Q&A form. What types of questions would normally come from a cosplayer.. and also the photographer. I will keep this factually based as much as possible, but do remember that this is how I run my photography business in both professional, private shoots and quick cosplay shoots.
The LAW in simple terms
Lets start with the law – yup, the law. The United States code on copyright and what is legally right.
In the majority of cases, when that shutter button is clicked, the photographer immediately owns copyrights to that image. The only way this would NOT be true is if the photographer is into a “work-made-for-hire”. What this basically means is when a photographer is hired as an “employee” to take photographs for said company. An example of this would be; Being hired by Sports Illustrated to document the Superbowl. This can be used in our cosplay community as well. I won’t get into this at this exact moment.. but yes, as a cosplayer or as a company, you can “hire” a photographer to take photographs of you as a contractor (written, signed employee contract) which would give you rights to those images immediately. This does NOT include a “oh i paid you.. so you are work for hire” – No. Unless you are a company who hire employees for said company to shoot something specific for that company, this does not fall under a “I paid the photographer $50.. i own them”..More on this later.. so calm your horses.
Back to the copyright section. The shutter is released and the photographer then owns rights to the following: (taken from the US Code: http://www.copyright.gov/title17/92chap1.html#106 )
Take note: These bullets are not an all-in or all-out deal. These rights can be individually turned off or on by the owner (photographer) at any time.
(1) to reproduce the photograph;
(2) to prepare derivative works based upon the photograph;
(3) to distribute copies of the photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) to display the photograph publicly;
A Cosplayers right
Cosplayers: You might be getting a little upset considering you think you have no rights when an image is taken. Read this carefully…
Once a photograph is taken and the photographer owns those copyrights, he technically does not completely own the photograph since YOU are in it. You, as a model and cosplayer, have a right to something called “the right to publicity”.
This right to publicity is rather simple; A photographer has to be very careful about COMMERCIALLY selling images of a cosplayer/model since he does NOT have right to do so without the consent of the cosplayer or model in in the image. This goes BOTH ways. The cosplayer CANNOT do it without written consent of the photographer either. Do you see how the big mess with SyFy is happening now?
Editorial does NOT fall under “commerical” acts with the photograph. Editorial has its own set of rights, but I will keep it as simple as possible. I take a photograph of you.. I can put them in magazines all day for a non-commercial use (think ad-space.. vs a story space in a newspaper or magazine).
Think of it this way – is the photograph being used to endorse or promote a product? That is commercial.
Is the photograph being placed onto a product such as a tee-shirt, keychain or other type of sale? That is also commercial.
This is where model release forms come into play which can extend/release rights to one or the other parties.
But, I own collaborative copyright/co-authorship since I am an artist too!
(edit 9/25/2013 for better explanation)
In most circumstances, no.
First; What is co-authorship? It is a right when collaborative artists get together and create something in a collaborative effort. In all cases when it comes to photography, there is no co-authorship since the action of capturing a subject to a medium is 100% authorship to the photographer – regardless of subject.
Let me try and throw some examples down..
ex1: You (the cosplayer) contact a photographer and go to his studio or some other location chosen by him/her and you get your pictures taken. You posed awesomely in your cosplay and you made some pretty cool stuff. Do you own co-authorship/copyrights? — NO, you do not. The photographer has full rights to all images.
ex2: You (the cosplayer) create a set and devote money to creating set props, have an idea of the shot you want and then bring in a photographer to the equation, but no release forms are present. — You CAN have rights ONLY if the one whom created the medium (the photographer) signs off on LICENSING you the full rights to the imagery – TALK with your photographer!
In most case scenarios, you, as a model, do not own the picture or have full licensing unless a copyright release form is used to express these rights for the image/s. If NO release form is present, no matter what the case is, the one whom recorded the subject to a medium (again, the photographer) will always own full rights. A photographer saying “hey lets go shoot” or a cosplayer saying the same, is not a collaborative/creative effort in any way.
There is a lot of redundancy in the above paragraphs.. but I wanted to make it clear to everyone on this subject. To be on the safe side where you think you may have rights, get a release form on the table and talk about it.
How BGZ Studios does it..
I do not normally whip out contracts unless I am doing a big set/shoot in which I am paying my own money to create. The majority of the cosplayers that I shoot have an understanding of what to do and not to do with my images. It is quite simple..
Cosplayers I shoot have the right to use the images I take of them for personal use, personal marketing, websites/blogs and even personal print for banners/business cards.
I require cosplayers to contact me for ANYTHING else past this – which include commercially selling, print sales, product placements and promotion for third parties (such as SyFy).
The biggest thing to keep in mind is one MAJOR keyword: Communication.
Talk with your photographer – ASK if you want to use the images specifically.. it is that simple. I am not a scary person and the majority of the time I will say yes – even to print sales. Send me a message, lets talk and come to an agreement. It is not that hard guys.. SAME goes with talking with your cosplayers. As a photographer, ask the cosplayer to use the image – remember, legally you NEED their permission to SELL prints or sell the image commercially.
Want to know what else I do? Before an image is released publicly, a cosplayer is sent the complete image so that he/she approves of it BEFORE the public lays eyes on it. I believe this is very necessary and is a personal thing I do since I feel like the cosplayer has their own “public image” that they want to keep too. They might not like the pose or angle – respect their opinions and keep an open communication – again, not that hard.
What if I shot pictures at a public event/public convention?
Public pictures have its own category.
There is no need to contact anyone, anywhere in order to commercially sell photographs taken in public. Period.
This is the big one where a photographer snaps a picture, and owns 100% of everything.
Don’t like this? Don’t go into public areas
Not even cops can stop a photographer from taking pictures in public.
Where Model and Photographer release forms come into effect
Release forms are exactly what they say – a form to release your rights to the image. This is normally done for protection to the photographer for insurance purposes in bigger shoots and commercially getting rights from the model to use the photograph.
What I am going to do here is show you guys the type of form that you may use and edit as you want to. This goes for both cosplayers AND photographers. Edit the text, change the rights you want to be signed and not signed away, change the logo and name and SHABAM, you got yourself a legal contract in your pocket if/when you need it.
To download this release form template, click here:
Now read that carefully – it is pretty much how I run my business right now.. my verbal agreements with cosplayers I shoot in paper form.
Now hear me out for a second – By no means do I want everyone whipping out forms when a photoshoot happens – that is stupid as f***. I cannot say this enough.. just talk with each other.. come to a verbal agreement together and have fun – know what you want to use the images for before the fact of a contract.
Disclaimer: I am not a lawyer – this is personal advice from experience in the field and to help the community understand rights and IP law. When in doubt, consult a lawyer.
For any questions, post below or follow my page right here: http://www.facebook.com/bgzstudios