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Author Topic: Copyright thoughts please - Spiderman  (Read 485 times)

colinh

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Copyright thoughts please - Spiderman
« on: 04-07-18 at 06:16 am »

Hello, I am a photographer from the UK.

Please can I ask what would your thoughts would be on this from a copyright perspective?

I've taken a photograph of a friend dressed up as Spiderman in the Cairngorms National Park in Scotland (a fun out-take after a running shoot as he uses the costume to raise money for children's charities).

A large US outdoor magazine wish to buy the picture and publish it in a section of their magazine and website.

Q. Can I sell the image to the magazine for editorial use without infringing Marvel's copyright?

I believe I can (based on editorial purposes not needing model releases) but I'm wary so I've written to Marvel to ask them.

What do you think is the correct answer though? I'm happy to share here once I get a response.

Thanks,

Colin
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Robert T Nicholson

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Re: Copyright thoughts please - Spiderman
« Reply #1 on: 04-07-18 at 07:17 pm »

I am in the US, so take what I have to say with a grain of salt - the laws may vary in the UK.

First - you own the copyright to the photo.  You can certainly sell your rights.

However, comic book characters are protected by both copyright and trademark law.  Generally, cosplay costumes get a pass, because comic book companies know that suing their fans is NOT good marketing.

It's a different matter when a photograph is published.  And "editorial use" is not a blank check to use any copyright- or trademark-protected material you wish.  In the US, it falls under the heading of fair use, and there are a number of factors that go into a legal determination.  It is often arguable, and some companies (including Disney, which owns Marvel Enterprises) are quick to threaten and litigate.  (Many millions of dollars are spent litigating fair use cases.)

You don't say how big the publication is.  A large publication probably has their own legal department and guidelines for use; a small publication may not have good legal advice, or even a good understanding of the law.

In this case, I think you really need to push off the legal liability onto the publication.  As a photographer, you should understand the basics of copyright law, but you are not an attorney, and you probably don't have an attorney "on staff" to advise you.

I'd be sure that, when you sell the image, your contract clearly states that:

(1)  You are assigning only your own rights as the photographer,

(2)  The publication is responsible for obtaining any copyright or trademark clearance that may be required for use of the Marvel character, and

(3)  You are not indemnifying the publication for legal consequences arising from use of the image.

If they are not willing to agree to that, then in my personal opinion you should pass on this sale.

« Last Edit: 04-07-18 at 09:34 pm by Robert T Nicholson »
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This post is provided for information purposes only, and does not constitute legal advice.

Robert Nicholson Consulting | Copyright Safeguard | ED Treatment Center

colinh

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Re: Copyright thoughts please - Spiderman
« Reply #2 on: 04-09-18 at 07:59 pm »

Hello Robert, many thanks for taking the time to consider and respond. I appreciate it.

The magazine are big enough to have their own legal team and the Photo Editor has subsequently said she is comfortable with using it.

From my perspective, I'm confident I have a usage license in place that dictates the photograph is for editorial use only - so that covers me - and a clause in my terms and conditions that says the client indemnifies me from any loss which arises out of or in connection with the use of the photograph - so that covers me too. Except on occasions where we've agreed up front that I am responsible. Which on this occasion I'll express clearly that I'm not.

Best regards,

Colin



I am in the US, so take what I have to say with a grain of salt - the laws may vary in the UK.

First - you own the copyright to the photo.  You can certainly sell your rights.

However, comic book characters are protected by both copyright and trademark law.  Generally, cosplay costumes get a pass, because comic book companies know that suing their fans is NOT good marketing.

It's a different matter when a photograph is published.  And "editorial use" is not a blank check to use any copyright- or trademark-protected material you wish.  In the US, it falls under the heading of fair use, and there are a number of factors that go into a legal determination.  It is often arguable, and some companies (including Disney, which owns Marvel Enterprises) are quick to threaten and litigate.  (Many millions of dollars are spent litigating fair use cases.)

You don't say how big the publication is.  A large publication probably has their own legal department and guidelines for use; a small publication may not have good legal advice, or even a good understanding of the law.

In this case, I think you really need to push off the legal liability onto the publication.  As a photographer, you should understand the basics of copyright law, but you are not an attorney, and you probably don't have an attorney "on staff" to advise you.

I'd be sure that, when you sell the image, your contract clearly states that:

(1)  You are assigning only your own rights as the photographer,

(2)  The publication is responsible for obtaining any copyright or trademark clearance that may be required for use of the Marvel character, and

(3)  You are not indemnifying the publication for legal consequences arising from use of the image.

If they are not willing to agree to that, then in my personal opinion you should pass on this sale.
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