Guest article. Mikepaws is a professional photographer who has been involved with furry for eight years. This article was originally posted on his personal journal at mikepaws.co.uk.
Last week, a friend on Twitter asked a question, “Who does the copyright on a fursuit photo actually belong to?”
As a professional photographer, and member of the furry fandom, I thought that it was a perfect opportunity to do some research on the law, the copyright of photographs and rights of models/subjects.
So here I present to you my thoughts and opinions on photography rights for fursuiters and photographers.
Disclaimer: I am not a lawyer, if you seriously do wish to seek legal advice. Please speak to one!
So the simplest question of all: Who owns the copyright to a photograph?
The answer 100% is the photographer who took the image.
If you borrowed a friend’s camera and took the photo, it is owned by the person who pushed the shutter button.
Only time a photographer does not own the rights to their image is if they are the employee of another organisation, such as a publication or media company that pay for the services of the photographer.
Let’s say a fursuiter pays for a photographer to take images, unless it is in writing that the rights are forfeited by the photographer, to you (the fursuiter) than the creator of the image (the photographer) still owns full rights to the image.
Now I can just hear all the fursuiters reading this letting out shrieks of horror. But I am afraid it is true, most fursuiters in legal terms would almost never own the image and it could technically be used for editorial or commercial purposes.
In the cosplay community, they do have one right, “the right to publicity” in the US. A right to privacy exists in the UK law, as a consequence of the European Convention on Human Rights. However this applies more to cosplay than fursuiters, because most people participating in cosplay are showing their faces and have to consent if a photograph is being used commercially under most circumstances.
This however is forfeited in a public place, this is why street photography is legal. There is no need to contact anyone, anywhere in order to commercially sell photographs taken in public. Photography on private land is similarly unrestricted. However, landowners are permitted to impose any conditions they wish upon entry to a property, such as forbidding or restricting photography.
However in my discussions with members of the community, many are arguing that a photo of the fursuiter constitutes a derivative work. A photograph can also be a mechanism of infringement of the copyright which subsists in another work. For example, a photograph which copies a substantial part of an artistic work, such as a sculpture or painting. This why photography is banned at Art Shows in conventions, for example.
This is really the grey area that needs to be addressed, many of us as fandom photographers will respect the wishes of our fellow furries and understand the value that a character may have for an individual. We therefore have an informal code of conduct which is often agreed to by attendees at a furry convention.
The photographer Tom Broadbent, famous for his project ‘At Home with the Furries‘ follows similar attitude to many photographers within the fandom of keeping an open and honest dialogue. Letting the costume owner know what the purpose of the photoshoot is, if it isn’t just for personal use. This generally is the only protection that fursuiters have, is talking to their photographers for an understanding and if they really want to be safe then get a model release form.
But then we have to picture a scenario where you (the fursuiter) are photographed by, a freelancer in the street entertaining people, and then goes on to sell it to a international photo library. Your rights to privacy have been made void by the fact you covered your face with your costume. The costume itself isn’t trademarked and is not connected to any copyrighted brand. There’s almost nothing you can do except to contact the photographer and politely request the image be removed.
“Most furries would likely be very disappointed to know how few rights, if any, their characters have,” stated Wylde Rottie, who hosted a panel at MFF on copyrighting. “Fursuits would likely be considered Useful Articles, like a costume or piece of clothing, which are not copyrightable.”
Wylde then went on to explain why the trademarking of fursuits would drastically change the open and creative atmosphere of the community:
“It’s important to acknowledge why those protections don’t really exist legally. Imagine the bad precedent it would set by allowing someone to have copyright to a suit. What’s to stop someone with one fursuit from claiming rights over a suit made subsequently and/or of similar design? At most, someone could attempt to have their suit/design trademarked in some way, but the bar for that is so much higher that I have a hard time thinking of any circumstance in which someone could successfully get a suit design trademarked.”
So to summarize:
“Under law, it is the photographer who will own copyright on any photos he/she has taken, with the following exceptions:
- If the photographer is an employee of the company the photos are taken for, or is an employee of a company instructed to take the photos, the photographer will be acting on behalf of his/her employer, and the company the photographer works for will own the copyright.
- If there is an agreement that assigns copyright to another party.
(Source: The UK Copyright Service)
My thoughts on this subject first came up in August 2014 when Getty Images sent a photographer to capture images at Eurofurence for editorial/press use. It demonstrated that there was a loophole, photographing in public areas of Berlin and the hotel where the convention’s media policy did not apply and by not being an attendee they hadn’t agreed to the terms and conditions of entry associated with being a badge-holder.
Conventions need to be very clear to point out where public and private land is to their attendees, and fursuiters should ask photographers if they are suspicious of their intentions before they take images and afterwards will need to seek permission to copy/print photos outside of personal use.
Meanwhile us photographers, who create and hold the copyright, must make sure to defend our works from theft/illegal publication and always be clear with fursuiters about what we are doing with our images and continue to uphold our informal agreements to contact and ask owners of fursonas/characters consent before images are used for commercial or editorial/press use.
However we must never feel that we cannot continue to have fun and collaborate together to create amazing images which document this colourful community and its energetic costumers who bring life to lovingly hand-crafted fursuits.
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