how can I legally sell my vintage (70s) rock photos

Deb-KC

I posted this earlier at the bottom of a long thread and got no response.
I've been scouring the web for hints and accurate info on this, and would appreciate some guidance.

I have a substantial collection of good and some great concert slides from roughly 1972 up to the early 80s. I sold a handful of shots back then, basically for cost and a print for myself.

I worked as a go-fer for various promoters and had great access. Cameras were a non-issue back then, and all of the points you made don't seem to apply (ticket stub, express statements that prohibited merchandising, etc.)

Is it even conceivable for me to get permission to reproduce any of these images for sale? Would I have to contact each and every band/artist and even then would they turn me down without consideration?

I finally have an avenue to print and sell some of this work and am disappointed that doing this would put me outside the law.

I recognize all of your points about artists and their being exploited, but just because there is a band up there with nice lights, there is still an art to capturing an image, and I don't think it fair that I can't try to generate a small income from this labor of love and piece of history.

I'd be thrilled if you could give me some information or pointers on a way to get permission/arrange to pay percentage/whatever — a way to be legal.

Thanks!

RogersDA

I am not an attorney, and you should always consult one for the best infomation. Your situation may have specific issues that are unknown.

If anything below is incorrect then please let me know. I want to be sure the right information is provided.

Basically, you have copyright, trademark, and model release considerations to deal with. You purportedly own the copyright to the images, so that may not be a concern. However, if someone paid you to be the photographer, even in an informal /minor capacity, then that person/company may be able to claim copyright to the images.

Furthermore, the band's image and/or the band member images are not copyrightable. They can, under certain circumstances, become trademarks. Likewise, the band's name can be trademarked. When selling images of Joe Blow's Band you will obviously have to use Joe Blow's Band name. That's one area where the Fair Use Doctrine comes in. For example, you can't sell a Canon camera on eBay without using Canon's name; i.e., their trademark. This is not to say the Joe Blow's Band will or will not sue you for infringement, or that they would or would not win. I'm just saying you need to understand the risks.

Also, If your photos have the band's name or logo in them then that could be considered a trademark infringement. See, for example, PhotoAttorney's Blog Entry on this.

Model release: you may or may not need this. If you are just selling the images and not trying to promote your services or a product using the images then you may not need a model release. This is a very hot topic these days and, again, I highly suggest you contact an intellectual propery attorney that specializes in this area.

That said there is case law that are more or less on-point.

ETW Corp. v. Jireh Publishing Inc., (2003), 67 USPQ2d 1065
This is a trademark case citing several prior cases that dealt with photographs and likeness. Basically if the image was consistently used as a trademark (note: not necessarily registered as a trademark) then selling that image could constitute trademark infringment.

Some excerpts:

We hold that, as a general rule, a person's image or likeness cannot function as a trademark. Our conclusion is supported by the decisions of other courts which have addressed this issue. In Pirone v. MacMillan, Inc., 894 F.2d 579 13 USPQ2d 1799 (2nd Cir. 1990), the Second Circuit rejected a trademark claim asserted by the daughters of baseball legend Babe Ruth. The plaintiffs objected to the use of Ruth's likeness in three photographs which appeared in a calendar published by the defendant. The court rejected their claim, holding that “a photograph of a human being, unlike a portrait of a fanciful cartoon character, is not inherently ‘distinctive’ in the trademark sense of tending to indicate origin.” Id. at 583. The court noted that Ruth “was one of the most photographed men of his generation, a larger than life hero to millions and an historical figure[.]” Id. The Second Circuit Court concluded that a consumer could not reasonably believe that Ruth sponsored the calendar:
[A]n ordinarily prudent purchaser would have no difficulty discerning that these photos are merely the subject matter of the calendar and do not in any way indicate sponsorship. No reasonable jury could find a likelihood of confusion. Id. at 585. The court observed that “nder some circumstances, a photograph of a person may be a valid trademark—if, for example, a particular photograph was consistently used on specific goods.” Id. at 583. The court rejected plaintiffs’ assertion of trademark rights in every photograph of Ruth.

In Estate of Presley v. Russen, 513 F.Supp. 1339, 1363-1364 [211 USPW 415] (D.N.J. 1981), the court rejected a claim by the estate of Elvis Presley that his image and likeness was a valid mark. The court did find, however, as suggested by the Second Circuit in Pirone, that one particular image of Presley had been consistently used in the advertising and sale of Elvis Presley entertainment services to identify those services and that the image could likely be found to function as a mark.
In Rock and Roll Hall of Fame, the plaintiff asserted trademark rights in the design of the building which houses the Rock and Roll Hall of Fame in Cleveland, Ohio, and claimed that defendant's poster featuring a photograph of the museum against a colorful sunset was a violation of its trademark rights. 134 F.3d at 751. This court, with one judge dissenting, reversed the judgment of the district court which granted plaintiff's request for a preliminary injunction. After reviewing the evidence, the majority concluded:
In reviewing the Museum's disparate uses of several different perspectives of its building design, we cannot conclude that they create a consistent and distinct commercial impression as an indicator of a single source of origin or sponsorship. To be more specific, we cannot conclude on this record that it is likely that the Museum has established a valid trademark in every photograph which, like Gentile's, prominently displays the front of the Museum's building.

Deb-KC

a couple of follow up questions
Thanks for your detailed and helpful information!

It was a pretty loose time back then, and to my knowledge none of my "employers" is even in business (or necessarily alive) at this point. I am not at all worried about the local issues, but will follow up if I decide I can take this to the next level.

Trademark issue: If the band's logo (for example "KISS") is visible on their drum kit or their stage set (in the photo), is that what you're speaking about, or just typing their name in conjunction with marketing a photograph, i.e. "KISS photo from Kansas City — $10.00" or whatever.

It sounds like you're telling me that if I'm selling my photos as "fine art" prints, I don't necessarily need an artists release. But if I run an ad saying Deb's Great Photos and Memorabilia and use my images in the ad, then I would need releases.

Not holding you (or anyone who cares to respond) to any answers. Just trying to gather as much information as possible before forking over money for an attorney.

Look forward to more feedback on selling photos from that era.

Thanks!

RogersDA

Trademark issue: If the band's logo (for example "KISS") is visible on their drum kit or their stage set (in the photo), is that what you're speaking about, or just typing their name in conjunction with marketing a photograph, i.e. "KISS photo from Kansas City — $10.00" or whatever.

The second scenario above may be fair use. The logo "KISS" in the photo could be potentially infringing. I am not in a position to know the case law on that since trademark infringement can be at the state and/or at the federal level.

It sounds like you're telling me that if I'm selling my photos as "fine art" prints, I don't necessarily need an artists release. But if I run an ad saying Deb's Great Photos and Memorabilia and use my images in the ad, then I would need releases.

That's my understanding. Again, it's best to check and confirm state laws and federal laws first.

Not holding you (or anyone who cares to respond) to any answers. Just trying to gather as much information as possible before forking over money for an attorney.

Some attorneys will offer an hour consultation for free or at a reduced rate. At least get some pertinent case law citations that you can hold onto in case someone decides to try to sue you.

bham

What might be an important bit of information, if the photos were captured at a public event, during the concert, then you shouldn't have a problem selling them without a release.

I say this because of a recent Supreme Court ruling of photos of Tiger Woods being sold by a photographer. Tiger tried to sue to recover money for the use of his images. The photographer won because the photos were at a public event, a golf tournament. This is the court ruling that some artist are now using to not have to pay any licensing or royalties to some Universities, for art works produced capturing historic moments of football games. Some license to get a somewhat endorsement, but one local one here has exterted his right not to pay if he doesn't label the piece with the name of the university anywhere on the item.

Its a fine line and I am not sure where you fall. I think you are probably pretty ok based on what you have said. If the band no longer exists I doubt you will have any issues. If you had nothing in writing giving the rights to the photos to the band, you own the copyright. It sounds like that you did other work and just happened to have a camera and took some pictures in your free time, between being sent on errands, etc.

Even if you had to pay a royalty for licensing the image, I know from CLC (Collegiate Licensing Corp) that handles tons of products for universities, it is usually 8%.

Deb-KC

Just to clarify, I didn't mean to imply the bands/artists were dead (although sadly, many are). I was referring to promotion companies and promoters that I worked for/with.

Good to learn that the percentage would be more than likely affordable if I needed to go that route.

I'd still welcome more comments if anyone has good info.