Photo Shoot: Conflict of Interest Between the Photographer and the Model

As a result of the provision of photographic services that are popular today, the interests of the photographer and the model often collide. The photographer wants to manage the rights to the photographs of the model that he has taken and use them as he sees fit. The model (in this article, a model is any person who is the main subject of a photograph), in turn, also wants to manage the rights to the photographs that feature her image. Both parties' desires are legitimate and logical. How can this controversial situation be resolved?

Contents

• The author's rights to a photographic work
• The model's rights to an image
• Problems and ways to solve them
• Conclusions

Author's Rights to a Photographic Work

Photographic works and works obtained by methods similar to photography, by virtue of paragraph 1 of Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, as well as the direct indication of paragraph 1 of Article 1259 of the Civil Code of the Russian Federation, are objects of copyright. At the same time, according to the same article, photographic works are objects of copyright regardless of the merits and purpose of the work.

Based on paragraph 2 of Article 5 of the Berne Convention¹, the use of these (i.e. copyrights — approx.) the author's rights and their exercise are not related to the fulfillment of any formalities, which is also reflected in paragraph 4 of Article 1259 of the Civil Code of the Russian Federation: for the creation, exercise and protection of copyrights, including photographic works, registration of the work or compliance with any other formalities is not required. The Civil Code of the Russian Federation requires that copyright in a work be expressed in some objective form. In the context of photographic works, the objective form refers not only to printed photographs, but also to the image of a photograph in the form of information stored on film, memory card, hard drive, or any other medium.

Thus, at the moment of photographing, when the image is recorded on film or in the camera's memory, it becomes a photographic work, and the photographer, the author, acquires copyright rights over this photographic work.

According to Article 1255 of the Civil Code of the Russian Federation, the Following Rights Are Included in the Copyright of Photographic Works:

• the exclusive right to the work;
• the right of authorship;
• the author's right to a name;
• the right to the integrity of the work;
• the right to the publication of the work;
• the right to withdraw.

The exclusive right is a property right (Article 1226 of the Civil Code of the Russian Federation). An exclusive right is recognized in relation to the results of intellectual activity (which include, among other things, works of science, literature, or art) and means of individualization (such as a trade mark or company name). According to paragraph 3 of Article 1228 of the Civil Code of the Russian Federation, the exclusive right to a result of intellectual activity created by creative work, including a work of literature or art, initially belongs to the author of the work. An exclusive right is the right to use the object of an exclusive right in any way that is not prohibited by law, and to manage this right by allowing or prohibiting others from using it. The person who holds the exclusive right is referred to as the copyright holder. Accordingly, the photographer-author is also the original copyright holder, who holds the exclusive right to the photographic work. The exclusive right is alienable, meaning it can be fully transferred to another person.

The right of authorship is the right to be recognized as the author of a work (Article 1265, paragraph 1, of the Civil Code of the Russian Federation). This right includes the right to be referred to as the author of the work and the obligation of others to cite the author when using the work (for example, when using a photographic work in a magazine).

The author's right to a name is closely related to the right of authorship and is expressed in the author's right to use or allow the use of their work under their own name, pseudonym (including "nickname"), or without specifying a name or pseudonym, and to ensure that the author's name or pseudonym is not distorted by others when the work is used.

The right to integrity of a work is a specific legal regime for preserving the integrity of a work, aimed at protecting the work and the author's creative intent from distortion. According to paragraph 1 of Article 1266 of the Civil Code of the Russian Federation, changes to a work can only be made with the author's permission (or, after the author's death, with the permission of the copyright holder, provided that the changes do not alter the author's artistic intention). However, these changes should not involve creating a new (derivative) work based on an existing work², as this would constitute a modification (pererabotka) of the work, and the right to make such modifications is part of the exclusive right.

The right to publish a work is one of the most important personal non-property rights of the author, as it allows the author to decide whether the work is ready for public viewing and directly affects the author's property interests³. According to Article 1268 of the Civil Code of the Russian Federation, publishing a work means carrying out any action with the author's consent that makes the work available to the public for the first time.

The right to withdraw is the author's right to change their decision to publish a work (Article 1269 of the Civil Code of the Russian Federation). Such a refusal is possible only if the author compensates for the losses caused by such a decision to the person to whom the exclusive right to the work has been alienated or the right to use the work has been granted.

Based on the above, it can be concluded that copyright in a photographic work is a whole set of rights, while the alienable (which can be transferred or granted under a contract) is only an exclusive right, while the remaining rights in any case, even with the alienation of the exclusive right, remain with the author, i.e. the photographer.

The Rights of the Model to the Image

In turn, the model has the right to protect her image, the basis for which is the use of her image as the main subject of the photograph, in accordance with Article 152.1 of the Civil Code of the Russian Federation. This right is an intangible benefit and is inalienable (Article 150 of the Civil Code of the Russian Federation). The essence of this right is that no one has the right to publish or use the image (including photographs, videos, or works of art that depict the model) without her consent. At the same time, such consent is not required under Article 152.1 of the Civil Code of the Russian Federation if: the use of the image is carried out in the public, social or other public interests; or the image of a citizen is obtained during filming that is carried out in places open for free access or at public events (meetings, congresses, conferences, concerts, performances, sports competitions and similar events), except for cases when such an image is the main object of use; or the citizen posed for a fee.

And here we should conclude that if the model receives a monetary remuneration for the photo shoot, then in any further use of the photo with the image of this model, the photographer is not obliged to obtain the consent of the model.

Problems and Ways To Solve Them

Often there are much more complicated situations. The "Time For Print" (TFP) scheme is increasingly being used, where the photographer and the model collaborate on mutually beneficial terms. The photographer acquires the right to use the model's image in the resulting photographs, while the model, in exchange for granting this right to the photographer, receives the photographs and the right to use them in a specific manner, excluding commercial use.

In this case, there are several very subtle legal aspects:

1. From the point of view of the current legislation, the right to use photographic works can be transferred to the model under a license agreement, while the license agreement, by virtue of the direct indication of paragraph 2 of Article 1235 of the Civil Code of the Russian Federation, must be concluded in writing. Accordingly, the absence of such a written agreement, from the point of view of the law, means the absence of the granting of the right to use photographic works. Thus, any use of photographs of the model taken by the photographer in the sense of paragraph 2 of Article 1270 of the Civil Code of the Russian Federation will be unlawful in the absence of a written license agreement. This may seem surprising to some, but it is quite logical: the photographer is the author of the photographic work, and the use of such a work without their consent violates their copyright.
2. In the TFP scheme, the relationship between the model and the photographer is assumed to be gratuitous, and therefore, the license agreement is also gratuitous. It is necessary to specify the gratuitous nature of the contract explicitly, since if such a condition is not specified, the license agreement will be considered to be paid⁴, which, together with the absence of a condition on the amount of remuneration or the procedure for determining it, will lead to the unconcluded nature of this agreement in accordance with paragraph 5 of Article 1235 of the Civil Code of the Russian Federation.
3. Based on the provisions of Article 152.1, when conducting a photo shoot, it is necessary to obtain the model's consent for the further use of the model's image in all cases where the model does not receive remuneration for the photo shoot. By "remuneration" is meant the payment of money — providing the model with the finished photos cannot be considered such remuneration⁵. This consent is best obtained in writing, so that in the event of disagreements it would be possible to confirm the fact of the expression of the will of the specified consent. Among photographers, a model's agreement to the use of her image is called a "model release". The wording may vary quite a bit, but the essence is that the model allows the photographer and any subsequent copyright holders to use their image, and the model also agrees not to interfere with the photographer's ability to manage the rights to the photographs featuring the model. The Civil Code of the Russian Federation does not specify a specific form for granting permission to use a citizen's image, so a "model release" does not violate the law. In the author's opinion, having such permission is sufficient for the photographer to legally use photographs featuring the model.

It should be noted that, unfortunately, there is usually no respect for other people's intellectual work in the Russian Federation (and beyond). As a result, the misuse of copyrighted works, including photographs, is a common occurrence. In many cases, the image of a citizen is also used illegally. However, we should not forget that the law does provide for liability for the unlawful use of copyright objects (Article 146 of the Criminal Code of the Russian Federation, Article 7.12 of the Code of Administrative Offenses of the Russian Federation, and Article 1301 of the Civil Code of the Russian Federation), and sometimes the decision to recover compensation is enforced against the infringer.

As an example, we can cite the ruling of the Court of Appeals of the Volgograd Region, dated May 31, 2012, in case No. 33-4699/2012. The court, having considered the plaintiff's appeal against the decision of the Voroshilovsky District Court, established that: the newspaper "[name withheld]"⁶ dated [date withheld] published an article titled "[title withheld]". This article was accompanied by a close-up image of K.D.'s face. The plaintiff did not consent to the publication of this image (photo). (...) According to Article 152.1 of the Civil Code of the Russian Federation, the publication and further use of a citizen's image (including photographs, videos, or works of fine art depicting them) is permitted only with the citizen's consent. (...) Article 152.1 of the Civil Code of the Russian Federation does not provide for specific methods of protecting a person's non-property right to protect their image. Therefore, in accordance with Article 150 of the Civil Code of the Russian Federation, non-property rights are protected through compensation for moral damages. Thus, the decision of the Voroshilovsky District Court was overturned, and the court recognized that the publication of an article featuring a person without their consent violated their rights. As a result, the newspaper's editor-in-chief and founder were ordered to compensate for the moral harm caused to the individual. The amount of compensation is unknown. It is likely to be insignificant, but the important aspect is the fact that the perpetrators were held accountable.

Thus, it is logical to come to the following conclusions:

1. If the model has posed for a fee, then her consent to the further use of the photos obtained as a result of such a photo shoot is not required and does not violate the model's rights;
2. For the photographer to further use the model's image for commercial purposes in cases where the model was not paid for posing services, it is necessary to obtain the model's consent to such use;
3. The model must enter into a license agreement with the photographer (or acquire exclusive rights, for example, based on a contract of assignment of rights) for the further use of the photos.