Shootings on the TFP conditions: a conflict of interest

In the modern world of fashion, the practice of carrying out photo shootings on the conditions of “Time For Print” (hereinafter referred to as the TFP) – “time for photographies” – is common. In this case, “time” is the labour of a model, a make-up artist, a stylist, but “print (photographies)” is the labour of a photographer himself. It is assumed that all team members have an identical level of professionalism and they organize jointly a creative shooting, where the payment for the work is not money, but the photographies into their professional portfolio.

Each photographer, model, make-up artist, stylist, etc. needs updating constantly their professional portfolio, especially obtained in course of creative shootings. However, why not to replenish the portfolio with the photographies obtained only in course of commercial photo shootings? The problem is that the commercial shootings are often monotonous: a popular, but still identical style of photographies, make-up and a combination of clothes. Here is an example, Lookbook for a women's clothing store. The client wants to see a beautiful picture as a result of this shooting, which will be appreciated by a mass viewer, and the latter, in turn, will most certainly want to buy this product. However, no matter how beautiful and attractive the picture would be, people are tired of monotony. Thus, replenishing the portfolio with the identical, even beautiful photographies, sooner or later will cease to be interesting both to the creator himself and to his clients, fans, etc. Everyone wants something new sooner or later.

This is how the shootings on the TFP conditions have appeared. Creative people want to create something unordinary, unusual and inspiring. After all, when you do something extraordinary, which is different from others, you become memorable. So, the like-minded persons meet to implement their ideas not for money, but for the sake of an idea, art and inspiration.

This is a sort of cooperation on the conditions, which are beneficial for both parties. However, if we have already studied out with the right to make-up in the previous article, then who owns the copyright to the very photographies?

From the point of view of the Civil Code of the Russian Federation, the copyright to the photographies belongs to a photographer, that is, to an author being the citizen by whose creative labour it has been created.

In general, the copyright is divided into two groups:

• the exclusive rights;
• the personal non-property rights.

The personal non-property author’s rights include:

The right of authorship and the author's right to a name are governed by Article 1265 of the Civil Code of the Russian Federation. The right of authorship is the right to be recognized as an author of the work, and the author’s right to a name is the right to use or to permit the use of his work both under his own name, under a fictious name (a pseudonym), as well as without an indication of a name (anonymously). A person may be brought to responsibility for claiming the right of authorship.

The rights to the publication of a photography consist in committing an action by the photographer or in giving a consent to committing these actions to another person, who makes the work available to the public for the first time by publishing it, by a public display or by other methods described in Article 1268 of the Civil Code of the Russian Federation. In case if the photographer decided to withdraw his photography, he can use the right to withdrawal.

The right to untouchability of the work is the author’s right to keep the integrity of the work and the creative concept. According to Paragraph 1 of Article 1266 of the Civil Code of the Russian Federation, it shall not be allowed to make changes, reductions and supplements, etc. into the work without a consent of the author and after the death of the author – without a permission of the right holder, if the changes made do not distort an artistic concept of the author, do not violate the integrity of its perception and do not contradict to his will. At the same time, such changes should not be connected with the creation of a new (derivative) work on the basis of the one that is already available. Also, there is the author’s right to defence of the reputation in the provisions of the Berne Convention. This right ensures the defence of the photography from the changes of a various kind, such as: the distortion, misrepresentation or other change of the work, as well as any other infringement upon the work that is capable of causing damage to the author’s honor or reputation. The changes of this kind are carried out only with the author’s consent.

The copyright protects not only the photographic works themselves, but also the photographic works obtained by the methods that are similar to photographies, namely negatives, slides, etc., as well as their prints. Thus, even in case of a loss of the negative, the prints are retained with the photographer, which are protected as originals. The practice of destroying the negatives in order to increase the value of the very prints is common among photographers, since it will already not be possible to create the new ones.

According to Article 1229 of the Civil Code of the Russian Federation, the exclusive copyright of a photographer includes the right to use the work in any form and in any manner that is not contrary to the law, that is, to prohibit or to allow other persons the use of the photography through reproducing, distributing, selling or handing in for free the copies of the photography, importing the photography to the territory of the country, etc. The use of even a part of the photography requires the consent of its author. The absence of such consent entails the consequences, such as the prohibition by the right holder of the exclusive rights on the unlawful use of the photographic work, recovery of damages or the payment of monetary damages by the violator. Only the right holder may dispose of the exclusive right to the work. However, the exclusive rights, unlike the personal non-property rights, can be transferred to another person under an agreement on the alienation.

Speaking about the TFP, it is advisable to obtain the model’s consent for the publication and the further use of the photographies with her image. According to Article 152.1 of the Civil Code of the Russian Federation, the consent is not required only in case the model has posed for remuneration. Otherwise, such consent is executed in the agreement under the title “model release,” which is widespread in the fashion field. And since the Russian legislation does not stipulate a specific form of the agreement on the use of the image of a citizen, which is obligatory for all, the opinion “model release” is sufficient for the lawful use of the photographic works with the image of the model.

Any team member may be transferred the right to the use of the photographic works under a license agreement, and an agreement on the alienation of the exclusive rights to the photographic works can also be concluded. The license agreement should be concluded in writing in accordance with Article 1235 of the Civil Code of the Russian Federation. In addition, when carrying out a shooting on the TFP conditions, the gratuitous nature of the relationship is implied between the team members, thus, the license agreement will also be gratuitous, what should be obligatory indicated in the agreement. After all, according to Paragraph 5 of Article 1235 of the Civil Code of the Russian Federation, the absence of the condition of gratuitousness in the license agreement, as well as “in the absence of a condition on the amount of remuneration or a procedure for determining it in the non-gratuitous license agreement, the agreement shall be considered as not concluded.” It should be noted here, the shooting on the TFP conditions is not completely free. The following scheme works here: the team members recognize that they have an identical level of professionalism and their work is identical at cost. Thus, they simply do not exchange the monetary funds with each other, as it makes no sense.

In Russia, there are not so many judicial proceedings on the relations related to shootings, because basically the shootings on the TFP conditions are carried out without concluding any agreements, simply by a mutual consent, or in case of the violation of the rights to the photographic works, nobody applies for their defence. I would like to consider some examples from the judicial practice.

In 2010, the Moscow City Court made a definition of 24.06.2010 in case No. 33-15630[1]on an unlawful use of the image.

The plot of the case: The Defendants distributed the photographic works with the images of the Plaintiffs on the Internet, namely, on the website and in the publication “Our Work for Magic” on September 4, 2009. However, they had not given their consent to the publication of these photographies and they had not posed for a fee. Thus, the plaintiffs believed that their right to defence of the image was violated.

The position of the first-instance court:

• the photographies are taken in an open way in nature, namely in a park zone, which does not belong to the places being not open to the public;
• with an obvious consent of the objects of posing;
• the plaintiffs’ images are not the main object of the use, as they posed as the models for an advertising photo shooting of jewelry;
• the photographies are taken within the framework of the agreement on carrying out an advertising photo shooting of a copy of the ancient Russian jewelry, what testifies that the main subject of the shooting is the jewelry, not the plaintiffs.

However, the Judicial Division for Civil Cases of the Moscow City Court considered that the decision of the first-instance court did not comply with the requirements of the law, and the opinions that the photographies were taken in an open way in the place being open to the public, and the plaintiffs’ images were not the main object of the use, as they had posed as the models, were erroneous.

• in accordance with Article 152.1 of the Civil Code of the Russian Federation, the publication and the further use of the image of a citizen is possible only with this citizen’s consent, and after his death – with a consent of the children or the surviving spouse, and in their absence – with the parents’ consent. Article 152.1 of the Civil Code of the Russian Federation also contains a closed list, when such consent is not required.
• a consent to the publication and the use is a civil law transaction and it can contain a number of conditions (on a period, the methods for the use, the territorial limits, etc.). Such agreement may be concluded both before the shooting and after the start of the unlawful use of the citizen’s image. The methods for the further unlawful use may be different. The image can be used both in an unchanged form (format) and in a different scale or colour, with the placement of it on the products, etc. However, the draft agreement as well as the delivery and acceptance certificate for the services under the agreement, referred to by the Defendants, turned out to be not signed, and other evidence of the availability of the plaintiffs’ consent to the publication of the photographies with their image were absent in the case files.
• the right to protection of the image was formulated by the legislator as an absolute one, and the citizen is entitled to require the application of the appropriate measures of the civil law defence.

Thus, the case was forwarded for a new consideration in view of the above circumstances.

The Appellate Definition of the Volgograd Regional Court of 31.05.2012 in case No. 33-4699/2012[2] can be given as the second example. The Volgograd Regional Court considered the plaintiff's appeal petition regarding the decision of the first-instance court. The Court of Appeal found the following:

• an article, which was accompanied by the photographic works with the plaintiff’s image in close-up, was published in the issue of the information and reference newspaper. The plaintiff had not given a consent to the publication of the indicated photographic work with his image.
• .

Based on the above provisions, the Court of Appeal made a decision to cancel the decision of the first-instance court, to acknowledge the use and the publication of the plaintiff’s image without his consent to be a violation of his intangible rights and to recover non-pecuniary damage from the Limited Liability Company and the chief editor of the information and reference newspaper.

Resolution of the Seventeenth Arbitration Court of Appeal of 14.10.2010 No. 17AP-9713/2010-GK in case No. A60-5744/2010 can be given as the third example[3]. In this case, the plaintiff (Actor) posed for a fee at a photo shooting. Based on the agreement concluded, he gave a permission on an exclusive basis to the use of his image in advertising materials in the field of advertising banking activities, what meant that within 18 months from the date of signing an act on the services rendered to this agreement, the Actor would not give his permission to the use of his image in the advertising materials of the banks located on the territory, as well as he would not participate in the creation of such advertising materials. At the same time, the Actor allows the Customer including his images created during carrying out the photo shooting in the advertising materials, however, without making changes to the photographies themselves, while keeping untouchability of both the photographies and the images of the Actor.

The plaintiff decided that the customer had violated the conditions of the agreement concluded between them and filed a statement of claim. However, the court found the agreement to be invalid; hence the plaintiff had not the rights, the violation of which served the basis for the statement of claim. Thus, once the plaintiff posed for a fee, then his permission to the publication and the further distribution of the photographies is not required, and the exclusive rights to the photographic works belong to the right holder.

The Seventeenth Arbitration Court of Appeal determined to uphold the decision of the first-instance court, namely, to dismiss the statement of claim.