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by Marge Scanlin
Do you own the copyright to photos you are using to recruit campers
and staff?
Are you using photos on the Web?
Do you have permission from parents/guardians to photograph and
use the images of your campers and staff in promotional materials?
Have you checked your procedures lately?
Good risk management requires periodic review of your
procedures and practices in countless areas. Using photographs is certainly
one of those areas. Consider the fact that actors from the old TV show
"Cheers!" have a case before the Supreme Court over the use
of their image by a restaurant chain using the "Cheers!" name
and ambiance. Okay. So your campers are not actors from a popular TV sitcom.
Nevertheless, they have rights with regard to the use of photos depicting
their participation at your camp.
Camps are most at risk in the use of images for commercial
purposes such as camper or staff recruitment or advertising. Care must
be exercised to be sure you have permission from parents/guardians or
adults depicted in photos before using those images, particularly when
these photos are used for a commercial purpose such as recruitment or
advertising.
Risks You Assume When Using Photos
The use of photos in brochures, advertisements in newspapers
or magazines, on camp videos used to recruit campers/staff, display booths
you use at camp fairs, or on your web site brings certain responsibilities
and risk exposures to you. Two of those risk exposures include:
1. potential liability for violations of rights of publicity, and
2. potential liability for violations of copyright.
Rights of Publicity
Camps using photos of campers and staff for commercial
purposes such as those listed above may be subject to a lawsuit for infringement
of the right of publicity and/or for an action for invasion of privacy
of those in the picture. The "right of publicity" generally
refers to a person’s property interest in personality characteristics,
including, but not limited to, his or her name, voice, photograph, and
image. Right of publicity statues in most states generally require consent
from the individual (or the parent/guardian) before his or her
personality characteristics are used for a commercial purpose.
As a general rule, camps should have a release on file
to use photos of campers or staff depicted or represented in any camp
brochure, video, audio tape or other recording, Web site, advertisement,
or any other medium used for commercial purposes. See sidebar for a sample
release. Such releases will serve to minimize the risk that use of the
photo will be found to be an infringement of the right of publicity or
an invasion of privacy.
Copyright Ownership
When using photos for any purpose, camps should be careful
about copyright ownership issues for photos whose copyrights are not owned
by the camp.
A photograph taken by a camp employee within
the scope of his or her employment will generally be considered a
"work made for hire," and the employer camp will be considered
to be the author and copyright owner of the photograph.
However, the photographer is generally considered
to be the author and copyright owner of a photograph taken by any individual
who is not an employee of the camp acting within the scope of his or her
employment (e.g., a camper or a freelance photographer). For the camp
to obtain copyrights to such a photograph, the camp should enter into
a separate written agreement with the photographer wherein the photographer
expressly assigns all copyrights in the photograph to the camp. An example
is provided:
The term "photographs" shall mean all photographs
taken by (freelance photographer) prior to or at any time after
the date of this agreement. Photographer and Camp ______ agree that
Camp ______ is the owner of all rights in the photographs. Photographer
hereby irrevocably assigns, transfers and conveys to Camp ______ its
entire right, title and interest in and to the Photographs, including
but not limited to all copyrights, trademarks, and other rights including
all applications, registrations and renewals thereof and the right to
sue and collect damages (in law or in equity) for any past and future
infringements. In addition, Photographer, and Photographer’s agents
and employees, as applicable, shall execute any and all written documents
necessary to perfect or record such assignment to Camp ______ (including
all documents necessary to perfect or record such assignment with any
governmental agency or office), as requested by Camp ______ and without
any additional compensation. Photographer represents and warrants to
Camp ______ that he has not previously assigned or licensed any right,
title and interest in all or any of the photographs (in whole or in
part) to any third party. Photographer agrees that all Photographs are
"works made for hire" within the meaning of the United States
Copyright Act, to the extent applicable.
Originally published in the 2000 Fall issue
of The CampLine.
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