Now that you have isolated the information necessary for searching, you can begin examining the records at the Copyright Office and at the Library of Congress. Each of these databases has valuable information about public domain status and copyright ownership:

• Think of the Copyright Office as the source for copyright records. Search this database if you want specific information about copyright ownership, publication, transfers, and derivative works.
• Consider the Library of Congress as a 200-year-old library catalog. Search the catalogs if you want general information about a work such as the author, date of publication, subject matter, and publisher.

One common search strategy is to use Library of Congress files to identify an author, title, or publisher and then use that information to search the Copyright Office records online, as described below. If you are uncomfortable searching online, consider hiring the Copyright Office to perform the search on your behalf.

Defining Your Search

Your search of Copyright Office records will vary depending on your goal. Most likely, you have one of two goals: you want to find the current owner of a copyright or you want to know whether the work has fallen into the public domain. Methods for achieving each goal are described below.

Ownership Searching

When trying to determine the owner of copyright, review:

• certificates of registration, and
• assignments or other transfer documents.

Both of these documents are issued by and recorded with the Copyright 
Office. The registration will indicate who initially acquired ownership. The assignment will indicate if the registration has been transferred to another party.

The certificate of registration is issued by the Copyright Office and is the basic copyright document establishing date of publication, author, source of underlying material, contact person, and initial owner of copyright. The owner’s name is listed in the space in Section 4 entitled “Copyright Claimant.” If the owner is a different person than the author, the method of acquiring ownership (for example, “by written contract”) is indicated in the space in Section 4 entitled “Transfer.”

Assignments are transfers of copyright ownership. For example, an author may transfer rights to a publisher by signing an assignment of copyright, often included as part of a publishing agreement. Filing an assignment with the Copyright Office is not mandatory, but many copyright owners do so. When searching online at the Copyright Office, the person acquiring rights (the assignee) is usually listed as PARTY2 or PTY2 and the person transferring rights (the assignor) is usually listed as PARTY1 or PTY1.

Public Domain Searching

When researching whether a work is in the public domain, review:

• copyright registrations or other records containing the date of first publication, and
• renewal notices.

Both registrations and renewal notices are issued by and recorded with the Copyright Office. The registration is the initial statement of copyright information about a work and indicates the author, date of registration, copyright claimant (at the time of filing the registration), and date of first publication. A renewal must be filed in order to extend the length of protection for works published or registered before 1964. Although a renewal is no longer required for works published or registered after 1963, many copyright owners still file it.

Works published in the years 1923 through 1963 receive 95 years of protection if they were renewed during their 28th year. If not, they are in the public domain. Works published in the years 1964 through 1977 receive 95 years of protection. Works created after 1977 and all unpublished works are protected for the life of the author plus 70 years.

You may be able to determine if a work was published before 1923 (and is in the public domain) by examining the date in the work’s copyright notice. For example, James Joyce’s Dubliners is in the public domain because the Library of Congress database indicated that Dubliners was first published before 1923.

Note that copyright notice dates included in a book are not always accurate, because many public domain works are often republished with new dates in their copyright notices. For example, current editions of James Joyce’s Dubliners have copyright notices with dates after 1980. These “new” dates reflect the fact that the work contains some new material such as a preface, notes, or previously unpublished material. Only this new material is protected under the copyright claim. The public domain part of the work remains in the public domain.

Works published in the United States after 1928 and before 1964 are also in the public domain if the owner failed to file a renewal during the 28th year after first publication. Unlike copyright registrations or assignments, renewal notices for works published before 1964 had to be filed with the Copyright Office. If a work published after 1928 and before 1964 was not renewed, it fell into the public domain. According to Copyright Office surveys, the great majority of pre-1964 works were never renewed and, there­fore, are in the public domain. Unfortunately, the Copyright Office does not maintain lists of public domain materials. You must search Copyright Office records to determine whether a renewal was filed on time for each work.

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Searching Copyright Office Records

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Once you have all the available information about your work and know what you’re searching for, you need to choose the search method that best suits your purposes. You can either hire a search firm or work directly with the Copyright Office, which will do your search for a fee. Another option is searching the Copyright Office online, discussed in the next section.

Hire a Private Search Company

For a fee, you can hire a private company to search Copyright Office records for you. These companies provide additional services such as tracing the copyright history of a fictional character or locating similarly titled works. These companies may be able to determine if a work is in the public domain or whether you can obtain the rights to use the work. The advantage of using these companies is their speed and thoroughness. Search companies compile comprehensive reports using Copyright Office and other database records and can deliver the materials within two to ten days. The disadvantage is the cost, ranging from $75 to $300 per search. The largest and best known copyright search company is Thomson CompuMark (trademarks.thomsonreuter.com).

Pay the Copyright Office to Perform the Search

Upon request, the Copyright Office staff will search its records at the statutory rate of $165 for each hour or fraction of an hour consumed. (There is a two-hour minimum.) An online search request form (see Figure 1, above) is available from the Copyright Office website (www.copyright.gov/forms/search_estimate.html). The Copyright Office will respond with an estimate within two to five days.

Although the cost of a Copyright Office search is lower than a private search company, the disadvantage is that it may take longer to receive a response. The Copyright Office will conduct an expedited search if you pay a higher fee ($300 per hour). For more information, see Copyright Circular 22. Also, note that the search fee does not include the cost of additional certificates or photocopies of deposits or other Copyright Office records. For information concerning these services, request Copyright Office Circular 6. (See Chapter 16 for information on how to obtain Copyright Office publications.)

All requests for copies of Copyright Office records should be submitted to: Certifications and Documents Section, LM-402, Copyright Office, Library of Congress, Washington, DC 20559; 202-707-6787. It is also possible to go to the office and request records in person (see “Searching in Person,” just below).

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Searching Copyright Office Records Online

Searching the online Copyright Office records is free and easy. You can search through copyright files by visiting the Copyright Office at www.copyright.gov/records (see Figure 2, below). All copyright information is located in the Public Catalog (click “Search Public Catalog”) which contains information about works registered since January 1978. Included are published and unpublished text works, maps, motion pictures, music, sound recordings, works of the performing and visual arts, graphic artworks, and games. Also included are renewals of previous registrations.

Once you access the Post-1978 Records (see Figure 3), you can search either by Basic Search or by using the Boolean “Other Search Options” feature (see Figure 4). You can search by author, claimant, title, or registration number. The search files are updated weekly. Note that renewal information is only available for works published after 1949.

We tested the Basic Search feature by typing in the title of the book, Franny and Zooey, and found the resulting records (see Figure 5). Clicking on the second record (Figure 6), we learn that the owner of copyright is the late J.D. Salinger, and that the work, although first published in 1961, has been renewed (indicated by the letters “RE” by the registration number). The original registration number is A591015. Based on this information we can conclude that this work is not in the public domain because the owner filed a timely renewal of copyright after 28 years. (For more information on renewal requirements, see Chapter 8.)

Searching Library of Congress Records

In addition to Copyright Office records, there is another catalog of helpful information at the Library of Congress in Washington, DC. The Library of Congress is the largest library in the world and has been collecting and cataloging materials for over 200 years. However, contrary to popular belief, the Library of Congress does not contain copies of every work ever published in the United States. The Library of Congress Online Catalog (http://catalog.loc.gov) includes data for books, serials (magazines and periodicals), music and sound recordings, maps, visual materials (such as photos and graphics), computer files from 1975, and an index of names and subjects. It also includes an incomplete, unedited listing of books cataloged between 1898 and 1975.

Because of the ease of searching and the vast catalog of materials, use the LOC Catalog for basic research, such as locating the publisher or owner of a work and researching public domain information. Unlike Copyright Office files, the LOC Catalog is searchable by subject matter. Or, you can search by ISBN, ISSN, or LCCN (Library of Congress Catalog Number). You can even limit or define your search by language. For example, you can search for books that are not in English. You may be able to use Library of Congress files to identify an author, title, or publisher and then use that information to search the Copyright Office records.

The post Searching the Copyright Office and Library of Congress Records appeared first on Stanford Copyright and Fair Use Center.

Your first step is to physically examine the work you want to use for information that will help you locate copyright documents in the Copyright Office records. Check the work for the following information:

• Copyright notice. The copyright notice is usually on or near the title page of a book; visible at the end of a movie; printed on a compact disc cover or video box; or stamped on the back of a photograph or artwork. For computer programs, it may be located in the Help File under “About this Program.” The copyright notice has three parts: the “c” in a circle (©) or the word “copyright,” the date of first publication (or, in rare cases, the date of registration), and the name of the copyright owner.
• Title of the work. Because Copyright Office records are indexed by title, the title of the work is one of the most important elements in copyright research. Alternative titles may also be helpful (both main and alternative titles are usually listed on the copyright registration).
• Name(s) of author(s). Like the title, the name of the author(s) is helpful when searching Copyright Office records because it is usually listed on every copyright document pertaining to that work. Pseudonyms are also traceable in the Copyright Office. Even “Anonymous,” as a listing for an author, when cross-referenced with the title, can be helpful in locating a work.
• The name of the copyright owner. This may be the author, publisher, or producer of a work. The likely name of the owner is listed in the copyright notice—“likely” because you can never rely solely on the copyright notice for determining the current copyright owner. If you’re dealing with an older work, for example, it’s possible that ownership may have been transferred or reclaimed since publication. However, the name of the owner listed in the copyright notice is a helpful starting point for your research.
• Year of publication or registration. The date of publication is ordinarily listed in the copyright notice. This date usually indicates when copy­right protection began, though it may be the year that particular version of the work was first published.

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• Title, volume, or issue of serialized publication. If the work you want to use was originally published as a part of a periodical or collection, the title of the publication and other information, such as the volume or issue number, may be useful in searching the Copyright Office records.
• Underlying works and works contained within works. Many works, referred to as “derivatives,” are based upon other works. For example, motion pictures are often based on books or plays. The work upon which another is based is referred to as the “source” or “underlying” work. For instance, the movie Jurassic Park is based on the novel of the same name. Copyright information about a source work, such as its title or author, can often be found within the derivative work. For example, the motion picture Jurassic Park indicates in its opening credits, “Based upon the novel Jurassic Park, by Michael Crichton.”
• Identifying numbers. Identifying numbers, particularly the registration number or other indexing data, may help in your copyright search. Many media industries have a system of cataloging works. For example, publishers use ISBNs (International Standard Book Numbers) for books or ISSNs (International Standard Serial Numbers) for serial publications. The Library of Congress has its own catalog system known as the LCCN (Library of Congress Catalog Number). These numbers, which are usually located on the same page as the copyright notice, may prove helpful in identifying works when performing copyright research.

The post Starting Your Copyright Research appeared first on Stanford Copyright and Fair Use Center.

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What Is a Work Made for Hire?

Usually, the person who creates a work is also the initial owner of the copy­right in the work. But this isn’t always the case. Under some circumstances, a person who pays another to create a work becomes the initial copyright owner, not the person who actually created it. The resulting works are called “works made for hire” (or sometimes simply “works for hire”). There are two distinct types of work that will be classified as made for hire:

• a work created by an employee within the scope of employment, or
• a commissioned work that falls within a certain category of works and that is the subject of a written agreement. (The types of works that qualify and other relevant requirements are explained in more detail in Chapter 15.)

If the work qualifies under one of these two methods, the person paying for the work (the hiring party) is the author and copyright owner. If you want to use the work, you should seek permission from the employer or hiring party, not the person who created the work. If in doubt, you may be able to determine work-for-hire status by examining the copyright registration.

What Is a Transfer of Title?

The person who owns a copyright is sometimes referred to as having “title” to the copyright. A “title” is the document that establishes ownership to property, like the title to your car or house. But even in the absence of an official document, the owner of a copyright is often said to have title to it.

Just like title to your car or house, title to a copyright can be sold or otherwise transferred. A person or company can have ownership (title) of a copyright transferred to it by means of an assignment (a sale in which all or part of a copyright is transferred) or through a will or bankruptcy proceedings. Since title to a copyright can be transferred, you may have to search copyright records to determine the current owner of a work you want to use.

There are two ways to determine if copyright ownership has been transferred: by reviewing the copyright registration certificate issued by the Copyright Office, or by locating an assignment or transfer agreement. By reviewing the copyright registration certificate, you can find out who currently claims copyright and on what basis. For example, if a publisher has been assigned copyright to a work, it will file a copyright registration in its own name and indicate on the registration that it acquired copyright through a legal transfer. Also, many companies file the agreement that establishes the assignment, license, or transfer with the Copyright Office. For example, if an artist assigned his work to a company, the company could file the assignment document with the Copyright Office.

What Is a Termination of a Transfer?

Sometimes an author transfers copyright to someone and then later the author reacquires it through a process known as “terminating a transfer.” Copyright laws provide a method by which authors can reclaim rights after a number of years. This termination and reclamation process is complex, and the rules differ depending on when the work was first published. As a very general rule, transfer terminations occur between 28 and 56 years after the first publication. Terminations are filed with the Copyright Office and can be located by researching Copyright Office records.

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For more information on terminations of transfers, see Chapter 9 of The Copyright Handbook by attorney Stephen Fishman (Nolo).

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What If More Than One Person Owns a Copyright?

A common question is whom to ask for permission if several people jointly own a copyright. Co-ownership of copyright can occur in various ways. 
For example, if:

• two people jointly create a work
• the author transfers portions of the rights to different people 
(for example, giving half to each child), or
• the author sells a portion of the copyright to someone and keeps 
the remainder.

Co-owners of copyright have a legal status known as “tenants in common.” When a co-owner dies, his or her share goes to his or her beneficiaries or heirs, not to the other co-owner. Each co‑owner has an independent right to use or non exclusively license the work—provided that he or she accounts to the other co‑owners for any profits. What this means for our purposes is that if you obtain the permission of any one co-owner, you can use the work. However, there are a few exceptions to this rule, as explained in the next section.

You can determine whether there is co-ownership of a certain work by reviewing Copyright Office documents. For example, a registration for a song might indicate that a composer and a lyricist co-own a song.

When Must You Get Multiple Permissions?

There are several situations in which you must obtain permission from all the co-owners of a work instead of just one. All co-owners must consent to an assignment of the work (a transfer of copyright ownership) or to an exclusive license (an agreement granting rights solely to one person).

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Is There a Difference Between an Author and a Copyright Owner?

The author is the first owner of copyright. The author is either the creator of the work or the person who employs someone to create the work (see work-for-hire rules discussed above). Many authors do not retain their copyright ownership; they sell or transfer it to someone else in return for a lump sum payment or periodic payment known as a royalty. In this way, the author and copyright owner (sometimes referred to as “copyright claimant”) may be two different people. Even if you do not know the name of the current copyright owner, knowing the name of the author will help you find the owner in the Copyright Office records.

What If a Work Does Not Contain a Copyright Notice?

It’s common to start copyright research by examining the copyright notice. However, in some cases, the notice may be missing from the work. One reason you may not find a notice is because notice is not required on works first published after March 1, 1989. In addition, for works published prior to that date, notice is required only on visually perceptible copies—that is, copies that can be seen directly or with the aid of a device such as a film projector. Printed books, paintings, drawings, films, architecture, and computer programs are all visually perceptible. However, some works are not visually perceptible, such as a song on a compact disc. But copyright notice would be required if the song lyrics were printed on the album cover.

Another reason that a work may not include notice is that the owner failed to affix it, which may result in the loss of copyright. For works first published before 1978, for example, the absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. The absence of notice on works published between January 1, 1978 and March 1, 1989 may or may not result in the loss of copyright, depending on whether the owner corrected the error within five years of the publication and met other copyright law requirements.

What If There Is a Copyright Notice for an Entire Magazine but Not for the Specific Article You Want to Use?

If a story or a photograph is used in a magazine, there may be a copyright notice for the magazine but not for the specific story or photo that you want to use. That’s because the owners of magazines, anthologies, or greatest hits collections in which many different copyrighted works are collected (referred to as “collective works”) can use one copyright notice to protect all the works in the collection. This does not necessarily mean that the magazine owns the copyright in all of the works. It may or may not, depending on the contract with the author or photographer. Copyright Office research may not necessarily help you locate copyright information for these works because they may not be listed separately by title in the records. You may be better off contacting the owner of the collective work directly. The principles for contacting copyright owners are explained in the chapters dealing with specific media (text, artwork, photographs, and so on).

The post Copyright Ownership and Transfers FAQs appeared first on Stanford Copyright and Fair Use Center.

It’s possible you may not have to perform copyright research. You may be able to locate all the copyright information you need through other sources. However, if you seek permissions on a regular basis, there may come a time when you will have to trace copyright ownership (known as “the chain of title”), determine the first date of publication, or find out if copyright for a work has been renewed.

Before walking you through the basics of copyright research and approaches, this chapter begins with answers to some common questions regarding copyright ownership and transfers.

CAUTION

This chapter does not cover other types of research, such as locating stock photos or private databases of art or music. For more media-specific research, review the relevant chapter that covers the type of media you seek (see Table of Contents).

CAUTION

Copyright Office records are not always conclusive. Records of the Copyright Office and Library of Congress are helpful for locating ownership information and determining copyright status. Unfortunately, these records don’t always show the whole picture because filing copyright registration and assignment (transfer of copyright ownership) documents is not mandatory. Because you don’t have to file these documents to own a copyright, there may not be a Copyright Office record regarding a particular work.

Despite this fact, it is still worth your while to search the Copyright Office and the Library of Congress—the largest repositories of copyrighted materials in the United States. In addition, even if you can’t find records of ownership, your research will demonstrate that you acted in good faith and are an “innocent infringer” in the event that you are later sued for an unauthorized use, which will limit any damages you may have to pay.

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Interview Releases

Most reporters and writers do not obtain signed interview releases because they presume that by giving the interview, the subject has consented to the interview and, therefore, cannot claim invasion of privacy. In addition, many interview subjects don’t have the ability or inclination to execute a written release—for example, a person interviewed by telephone for a newspaper story on a deadline.

Nevertheless, a written interview release can be useful. It can help avoid lawsuits for libel, invasion of privacy, or even copyright infringement (since the speaker’s words may be copyrightable). It’s wise to obtain a signed release if the interview is lengthy, will be reprinted verbatim (for example, in a question and answer format), or if the subject matter of the interview is controversial.

It is common for an interview subject to ask to read or edit the interview or to have some comments removed or kept “off the record.” Any agreement that is made with the interview subject (including an agreement for anonymity) should be documented. Failure to honor the arrangement may give rise to a lawsuit for monetary damages.

If the interview subject is willing to proceed with the interview but does not want to sign a release, ask if he or she will make an oral consent on audio- or videotape. Although not as reliable as a written release, a statement such as, “I consent to the use of my statements in the Musician’s Gazette,” will provide some assurance of your right to use the statement.

Interview Release Agreement

An interview release is a hybrid agreement, part release and part license. The release above is suitable if you are seeking permission to use an existing interview or to conduct a new interview.

FORM

You can download this form (and all other forms in this book) from Nolo.com; for details, see the appendix.

Grant

For consideration which I acknowledge, I consent to the recording of my statements and grant to _____________________ (“Company”) 
and Company’s assigns, licensees, and successors the right to copy, reproduce, and use all or a portion of the statements (the “Interview”) for incorporation in the following work _____________________ (the “Work”).
I permit the use of all or a portion of the Interview in the Work in all forms and media including advertising and related promotion throughout the world and in perpetuity. I grant the right to use my image and name in connection with all uses of the Interview and waive the right to inspect or approve use of my Interview as incorporated in the Work.

Release

I release Company and Company’s assigns, licensees, and successors from any claims that may arise regarding the use of the Interview including any claims of defamation, invasion of privacy, or infringement of moral rights, rights of publicity, or copyright. I acknowledge that I have no ownership rights in the Work.
Company is not obligated to utilize the rights granted in this Agreement.
I have read and understood this agreement and I am over the age of 18. This Agreement expresses the complete understanding of the parties.

Explanation for Interview Release Agreement

• It’s possible that the interview may already have been recorded, in which case the language “consent to the recording of my statements and” can be stricken from the Grant section. If the interview will be included in more than one work, list all works and change the term “Work” to “Works” throughout the agreement. Unlimited or blanket releases for interviews are not common, partly because subjects usually are not prepared to relinquish unlimited rights.
• If seeking unlimited rights (the interview can be used for any purpose) substitute the following Grant section:

Grant

For consideration that I acknowledge, I consent to the recording of my statements and grant to _____________________ (“Company”) and Company’s assigns, licensees, 
and successors the right to copy, reproduce, and use all or a portion of the statements (the “Interview”) for all purposes, including advertising, trade, or any commercial purpose throughout the world and in perpetuity.

I grant the right to use my image and name in connection with all uses of the Interview and waive the right to inspect or approve any use of my Interview.

• If the interview subject does not wish to waive the right to inspect the final work, strike that sentence and arrange for the interview subject to provide approval.
• If the release is executed after the interview has been transcribed, it is helpful to attach a transcription of the interview to the release agreement. This provides an assurance that the interview subject has notice of what was said in the interview. Add a sentence to the Grant section such as, “A complete transcription of the interview is attached and incorporated in this Agreement.” The Release section provides protection against subsequent legal claims.
• If the interview subject is under 18, a parent or guardian’s consent is required.

Property Releases

In some cases, you’ll need to obtain a release for using pictures of places. You may find this odd—after all, if a building can be viewed publicly, why is permission required to use an image of it? Over the last few decades some buildings have earned protection under both trademark or copyright laws, or both. Trademark law will protect a building’s appearance under very limited circumstances. If a distinctive-looking building is used to signify a business’s services, you cannot use an image of that building in a manner that will confuse consumers. For example, the Sears Tower in Chicago functions as a trademark; if you intend to use it in the foreground of an advertisement, you must obtain permission from the Sears Company. Use of the building’s image for informational purposes, such as in magazine article, does not require permission.

Is permission needed to use the image of a trademarked building on a postcard or poster? That issue arose when a photographer sold images of the Rock and Roll Hall of Fame. A federal court of appeals permitted the use of the trademarked building on posters and did not consider it to be a trademark infringement. (Rock and Roll Hall of Fame v. Gentile, 134 F.3d 749 (6th Cir. 1998).)

Copyright protection also extends to architectural works, specifically for architectural works created after March 1, 1989. However copyright protection also has limitations. You do not need a release to photograph a building or property visible from a public place, but you do need permission to photograph and reproduce images of a building protected by copyright and not visible from a public place. Entering private property to photograph a building or property may also trigger a claim of trespass. To avoid such claims, photographers, publishers, and filmmakers use a property release, sometimes known as a “location release.”

Property Release Agreement

This form may be used as a property release.

FORM

You can download this form (and all other forms in this book) from Nolo.com; for details, see the appendix.

Explanation for Property Release

• The Grant section allows access to photograph the property (on the dates provided in the Dates of Use section) and the right to use the photographs for the purposes listed in the agreement.
• If payment is required for the release, indicate the amount in the paragraph after the Dates of Use section.
• The owner provides an assurance of ownership in the Warranty, Indemnity, & Release section and agrees to defend the Company from anyone else with a property ownership claim.

Grant

For consideration which I acknowledge, I irrevocably grant to 
 (“Company”) and Company’s assigns, 
licensees, and successors the right to enter onto the property listed above and to photograph, copy, publish, display, and use images of the property in all forms and media, including composite or modified representations, throughout the world and in perpetuity for the following purposes:

I waive the right to inspect or approve the manner in which the images of the property are used and waive the right to inspect any text that is used in connection with the images of the property.

Dates of Use

Company shall enter onto the property on the following dates and times: 
 .

In consideration for the rights granted under this Agreement, Company shall pay me $ upon execution of this Agreement.

Company is not obligated to utilize any of the rights granted in this Agreement.

Warranty, Indemnity, & Release

I warrant that I am the owner of the property and have the authority to grant the rights under this agreement and agree to indemnify Company from any claims regarding my ownership of the property. I release Company and Company’s assigns, licensees, and successors from any claims that may arise regarding the use of the images of the property.

I have read and understood this agreement. This Agreement expresses the complete understanding of the parties.

The post Interview and Property Releases appeared first on Stanford Copyright and Fair Use Center.

• A blanket release permits any use of the photographic image of the person signing the release and is suitable if the company or photo­grapher needs an unlimited right to use the image. Stock photographers who sell their photos for unlimited purposes commonly use blanket releases.
• Celebrities and professional models usually sign limited releases that specify the particular ways their image and name may be used. If a use exceeds what’s permitted under the limited release, the person can sue for breach of the agreement. For example, a model that signed a release limiting use of her image for a museum brochure sued when the photo appeared on a Miami transit card.

General Rules for Releases

In addition to the specific legal rules for releases discussed throughout this chapter, some general advice is helpful when dealing with release situations.

Get It in Writing

Although oral releases are generally valid, you should always try to get a release in writing. This way, the model can’t claim he or she never agreed to the release. In addition, the terms of an oral release can be hard to remember and even harder to prove in court if a dispute arises.

Make It Clear

When a release is sought for a specific purpose, do not hide or misrepresent facts to get the signature. A fraudulently obtained release is invalid. For example, a model who was told that his image would be used by an insurance company signed a blanket release based on that statement. However, a company that pays cash for life insurance policies owned by AIDS victims used the photo. A Florida court permitted the model to sue.

Keep It Simple

Release agreements do not include many of the legal provisions found in other agreements in this book. Instead, releases are usually “stripped down” to pose less likelihood of triggering a discussion or negotiation. Keep your release short and simple (see tip below).

Get the Right Signatures

There are two requirements for the signature on a release: it must be “informed consent,” which means that the person signing the release understood it; and the person signing the release must have the authority to grant the release.

In the majority of states, a minor is any person under 18 years of age, although in some states, the age may be 19 or 21. Since a minor may not understand the terms of a release, the signature of a parent or guardian is required before using a minor’s name or image.

In some cases, an agent representing the person may have the authority to sign a release. For example, an agent signed a release granting an unlimited time period for use of a model’s image in a Nintendo advertisement. The model had intended that the image only be used for one year. A court held that the agent had the authority to sign the release on behalf of the model and the release was binding.

It is always preferable to have a release signed by the subject, not an agent. When dealing with an agent, seek an assurance that the agent has the legal authority to sign. This can be done by including the statement, “I am the authorized agent for [name of model]” above the agent’s signature line.

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Unlimited Personal Release Agreement

The following form is an unlimited or blanket release agreement. It permits you to use the model’s image and name in all forms of media throughout the world forever.

FORM

You can download this form (and all other forms in this book) from Nolo.com; for details, see the appendix.

Grant

For consideration which I acknowledge, I irrevocably grant to __________________________ (“Company”) and Company’s 
assigns, licensees, and successors the right to use my image and name in all forms and media including composite or modified representations for all purposes, including advertising, trade, or any commercial purpose throughout the world and in perpetuity. I waive the right to inspect or approve versions of my image used for publication or the written copy that may be used in connection with the images.

Release

I release Company and Company’s assigns, licensees, and successors from any claims that may arise regarding the use of my image, including any claims of defamation, invasion of privacy, or infringement of moral rights, rights of publicity, or copyright. Company is permitted, although not obligated, to include my name as a credit in connection with the image.

Company is not obligated to utilize any of the rights granted in this Agreement.
I have read and understood this agreement and I am over the age of 18. This Agreement expresses the complete understanding of the parties.

Name: _______________________ Date:

Signature:

Address:

Witness Signature:

Parent/Guardian Consent (include if the person is under 18)

I am the parent or guardian of the minor named above. I have the legal right to consent to and do consent to the terms and conditions of this release.

Parent/Guardian Name: _______________________ Date:

Parent/Guardian Signature:

Parent/Guardian Address:

Witness Signature:

Limited Personal Release Agreement

The following form is a limited personal release agreement. It allows you to use the model’s name or image only for the purposes specified in the agreement.

FORM

You can download this form (and all other forms in this book) from Nolo.com; for details, see the appendix.

Grant

For consideration which I acknowledge, I grant to __________________________ (“Company”) and Company’s assigns, licensees, and successors, the right to use my image for the following purposes:

in the following territory
for a period of year(s) (the “Term”).

I grant the right to use my name and image for the purposes listed above in all forms and media, including composite or modified representations, and waive the right to inspect or approve versions of my image used for publication or the written copy that may be used in connection with the images.

Payment

(Select if appropriate)

For the rights granted during the Term, Company shall pay $ 
upon execution of this release.

Renewal

(Select if appropriate)

Company may renew this agreement under the same terms and conditions for year(s) provided that Company makes payment of $ 
at the time of renewal.

Release

I release Company and Company’s assigns, licensees, and successors from any claims that may arise regarding the use of my image including any claims of defamation, invasion of privacy, or infringement of moral rights, rights of publicity, or copyright. Company is permitted, although not obligated, to include my name as a credit in connection with the image.

I am the parent or guardian of the minor named above. I have the legal right to consent to and do consent to the terms and conditions of this release.

Explanation for Limited and Unlimited Personal Releases

• The Grant section establishes the rights granted by the person. In the unlimited agreement, a “blanket” grant is used. This grant is broad and intended to encompass all potential uses, whether informational, commercial, or other. In the limited agreement, the uses must be listed—for example, “For use on the cover of trade book and for related advertisements.” This release also has limitations regarding territory and term. Insert the appropriate geographic region and term—for example, “North America for a period of two years.”
• The Release section is the person’s promise not to sue the company for legal claims such as libel and invasion of privacy.
• If the person is a minor, the parent or guardian should sign where it is marked Parent/Guardian Consent. Since issues about release authenticity often crop up many years after a photo was made, a witness should sign the agreement to verify the person’s signature or the signature of the parent. The witness should be an adult. An employee or assistant is suitable.

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Informational Uses

You do not need a release to use a person’s name or image for informational purposes. An informational (or “editorial”) purpose is anything that informs, educates, or expresses opinions protected under the First Amendment of the United States Constitution—freedom of speech and of the press. An informational use would include using a person’s name or photograph in a newspaper or magazine article, educational program, film, nonfiction book, or informational website.

If you use a person’s name or image in an informational publication, you may also use that name or image in incidental advertising for the publication. For example, in an advertisement for a publication that includes an interview, you may state “Featuring an interview with Johnny Depp.” However, to use a person’s name in an advertisement posing as an informational publication, you need a release.

Even if your use is informational, a release may be required if the person’s name or image is used in a defamatory manner or invades the person’s privacy. It may seem odd to seek a release for a use that may defame a person or invade privacy. After all, why would anyone sign a release for a use that would create a false impression? Such releases are usually used in cases in which a model or actor is posing to illustrate an article, such as “The Horror of Date Rape.”

Commercial Uses

You need a release for the commercial use of a person’s name or image. A “commercial use” occurs when a name or image appears while a product or service is being sold or endorsed. For example, if your website offers hair products and features photographs of people using the products, you would need a release from the people in the photos. You do not need a release if the person cannot be recognized in the photo: for example, if the photo only includes the person’s hands.

Several decades ago, the failure to obtain such a release would have led to an invasion of privacy lawsuit. However, the “right of publicity” has now become the more popular claim for those whose names or images are used for commercial purposes without their permission.

Is Your Use Commercial or Informational?

Unfortunately, there is no definitive test that tells you whether your intended use is informational or commercial. Below are summaries of cases that straddle the border between informational and commercial uses. Cases with similar facts may seem to have different results because judges have broad discretion in making these determinations.

• Informational use. A photo of football player Joe Namath was featured on the cover of Sports Illustrated and later used in advertisements to sell subscriptions to Sports Illustrated. No permission was required because the initial use of the photo was editorial and the subscription ads were “merely incidental” to indicate the nature of the magazine contents. (Namath v. Sports Illustrated, 371 N.Y.S.2d 10 (1975).)
• Informational use. The National Enquirer and USA Today conducted telephone polls about the musical group New Kids on the Block. Use of the names and images of the members of the group to publicize the newspapers’ profit-making telephone numbers did not require permission because it was primarily for purposes of “news gathering and dissemination.” (New Kids on the Block v. News America Publishing Inc., 971 F.2d 302 (9th Cir. 1992).)
• Informational use. Public domain film clips of Fred Astaire were used as a prologue to an instructional dance video. The use of Mr. Astaire’s name was permitted in the prologue based on the informational content of the video. (Astaire v. Best Film & Video Corp., 136 F.3d 1208 (9th Cir. 1998).)
• Informational use. A film company that acquired the rights to rerelease two 1950s films featuring actress Betty Page commissioned drawings of Ms. Page to promote the films. Ms. Page sued to prevent the use of her image and name to promote the films. A court permitted the use because the advertising was incidental to the rerelease and was “newsworthy” due to the reemergence of the two 1950s movies. (Page v. Something Weird Video, 960 F.Supp. 1438 (C.D. Cal., 1996).)
• Informational use. Following a Superbowl victory, a San Jose newspaper sold posters of quarterback Joe Montana. Mr. Montana sued but, in a surprising ruling, a court permitted the use, claiming it was newsworthy because of the “relatively contemporaneous” publication of the posters with the news event. (Montana v. San Jose Mercury News, 34 Cal.App.4th 790 (1995).)
• Informational use. Los Angeles Magazine printed a fashion article that featured a digitally modified photograph combining Dustin Hoffman’s head with a male model’s body in a gown and woman’s shoes. The text stated: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.” Although one effect of the use was commercial—promoting the specific designers—the Ninth Circuit held that the use of Hoffman’s head on another model’s body did not violate the right of publicity and was permitted under free speech standards. Hoffman v. Capital Cities/ABC Inc., 255 F.3d 1180 (2001).
• Commercial use. During the NCAA tournament broadcast, an ad for Oldsmobile featured a voice asking who held the record for being voted the most outstanding player of the tournament. The answer printed onscreen “Lew Alcindor, UCLA, ’67, ’68, ’69.” (The basketball player Kareem Abdul-Jabbar was previously known as Lew Alcindor.) The ad stated that Oldsmobile was the winner of a Consumer’s Digest award three years in a row and ended with the statement, “A Definite First Round Pick.” Abdul-Jabbar sued, claiming that his name was used without permission. The court decided in his favor, ruling that although the advertisement provided information, the overall effect was commercial and required permission. (Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).)
• Commercial use. A photo of Cher was featured in Forum Magazine and was later used in advertisements for subscriptions to the magazine. Beneath Cher’s photo in the advertisements was a caption implying Cher’s endorsement of the magazine. The implied endorsement created a commercial use of Cher’s name that distinguished it from the Sports Illustrated case involving Joe Namath, above. (Cher v. Forum Inter. Ltd., 692 F.2d 634 (9th Cir. 1982).)

Are Websites Commercial or Informational?

Can a website be informational if its primary purpose is to promote a business? Websites raise many of the issues highlighted in the cases described in the previous section. Several factors determine whether the use of a name or image on a website is commercial or informational:

• If the use of the name or image at the website relates to a newsworthy event, the use is more likely to be informational.
• The more website space devoted to selling, the less likely the use is informational.
• The longer the person’s name or image remains at the site, the less likely the use is informational.
• The more separation between informational content and the sponsorship of the site and related advertisements, the more likely the use is informational.

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Releases and Free Speech

You can use a person’s name or image for commercial purposes without permission if the commercial use qualifies as free speech. Generally, this occurs when the use is categorized as a parody. (For more information on trademark parodies see Chapter 10. For more information on copyright parodies, see Chapter 9).

For example, a company sold trading cards featuring caricatures of major league baseball players. Text on the cards ridiculing player salaries and egos included a statement: “Cardtoons baseball is a parody and is NOT licensed by Major League Baseball Properties or Major League Baseball Players Association.” A federal court permitted the use of player’s names and caricatured images as free speech. (Cardtoons v. Major League Baseball Players Assn., 838 F.Supp. 1501 (N.D. Okla., 1993).)

However, individuals wary of litigation should weigh the consequences and costs of a lawsuit before claiming a free speech right to use an individual’s name or image.

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Without a written release, if you reproduce photos, video, or other represen­tations of an individual, that person might be able to bring you into court for various violations of personal rights. These include defamation and invasion of the right to privacy or the right of publicity. Each of these legal claims is discussed in more detail below.

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Invasion of Privacy

Every person has a right to be left alone—this is called the right of privacy. You need a release to use a living person’s name or image in a manner that constitutes an invasion of the person’s right to privacy. Releases are vital because the person whose privacy you invade can sue you for monetary damages. Generally, invasion of privacy isn’t an issue if an individual is deceased.

There are several different ways a person’s right to privacy can be invaded, including:

• False Light. This type of invasion of privacy occurs when an individual is falsely portrayed in a highly offensive manner—for example, posting a photograph of a man at the “America’s Most Wanted” website, even though he has never committed a crime.
• Disclosure of Private Facts. This invasion of privacy occurs when private or embarrassing facts are disclosed about an individual without relation to a legitimate public concern.

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• Intrusion. Intruding upon situations in which people have a reasonable expectation of privacy—for example, spying on a person at home, secretly eavesdropping on conversations, or opening mail—can give rise to an invasion of privacy claim. However, it is not an invasion of privacy to photograph someone in a public place or at any event where the public is invited. Such photos can be used freely for informational purposes, provided that the use does not defame or hold the individual up to a false light.

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Right of Publicity

The right of publicity grew out of the general principles of invasion of privacy that prohibit using a person’s name or likeness to gain a benefit. Within the past few decades, the right of publicity has emerged as an independent type of claim that a person can make when his or her name or likeness is used for commercial purposes. Although the right of publicity is commonly associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image to sell products. This right also prohibits any implication that a person endorses a product (without the person’s permission).

The right of publicity extends to a performer’s identifiable voice. For example, in two separate cases, advertisements that used vocal performances that sounded like singers Tom Waits and Bette Midler were found to violate the singers’ rights of publicity. In both of these cases, the advertising agency had sought permission from the performer and, when it was not granted, hired someone to deliberately imitate the singer’s voice—a good example of what not to do. As a general rule, if your performer’s voice mimics a well-known performer, either accidentally or intentionally, don’t use it.

In many states, the right of publicity survives death and can be asserted by a person’s estate.

Defamation

Defamation occurs when information is published about a person that creates a false impression and injures the person’s reputation. Defamation is often divided into two categories: slander, which is an oral comment made to others, and libel, which is a fixed statement printed, broadcast, or published electronically. The rules for both types of defamation are similar. A deceased person cannot be defamed, but a false statement about a deceased person can be defamation if it reflects badly on a living relative. In addition to personal defamation, a corporation or partnership can also be defamed if a false statement affects the business’s integrity, credit, or solvency.

The key to a defamation claim is determining the injury caused to the victim’s reputation in the community. The term “community” can be interpreted as narrowly as a small group of persons acquainted with the injured person. Courts have permitted claims for statements that ridicule, humiliate, or subject the victim to contempt.

If the information that is published is true, there is no defamation. Or, as some courts have stated, the truth is an absolute defense to defamation. Literal truth in every element is not required, provided that the statement is substantially true.

There are exceptions to defamation rules for politicians and celebrities and, to a limited extent, for people who have become the subjects of a public controversy. Because they are in the public eye, already subject to public attention, these people are expected to have tougher skins. They can only be defamed if it is proven that the false statements were made with actual malice and a reckless disregard for the truth—for example, a website owner posting what he knows to be false information about a celebrity’s sex life.

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Traditionally, releases (sometimes known as “model releases”) are needed when a person’s name or image is used for commercial purposes. However, there may be other instances, as described within this chapter, in which it may be prudent to obtain a signed release. This chapter provides samples and explanations of two types of personal releases, a release to use interview statements, and a release to use images of property (such as photos of a building) in an advertisement.

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Because there is a sizable gray area in which fair use may or may not apply, there is never a guarantee that your use will qualify as a fair use. The fair use doctrine has been described as a murky concept in which it is often difficult to separate the lawful from the unlawful. Two types of situations are especially likely to cause legal problems:

• Your work causes the owner of the original work to lose money. For example, you borrow portions of a biology text for use in a competing biology text.
• The copyright owner is offended by your use. For example, you satirize the original work and your satire contains sexually explicit references or other offensive material.

Remember, these criteria do not determine whether you will prevail in a fair use lawsuit—they simply indicate whether you are likely to trigger a lawsuit. When you use someone’s work and deprive them of money or offend them, the chances of being sued increase.

Just as there are situations that are more likely to cause lawsuits, there are some situations that may lower the risk:

• You use a very small excerpt of a factual work, for example, one or two lines from a news report, for purposes of commentary, criticism, scholarship, research, or news reporting.
• You diligently tried to locate the copyright owner but were unsuccessful, and after analyzing the fair use factors, you became convinced that your use would qualify as a fair use.

If in doubt about your fair use assessment, consult with a copyright attorney. For information on dealing with attorneys, see Chapter 16, “Help Beyond This Book.”

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