I assume all of this merchandise is bootleg, not stuff put out by the official Trump campaign.
But it does have me wondering, who owns the rights to the photo? Is it the photographer, Evan Vucci, or the AP, the organization he was working for? Can either one of them go after the vendors for unauthorized use of the image? What course of action can they take if Trump decides to use the image in an official campaign ad? In that vein, do news organizations typically license images for use by politicians?
The image rights would belong to the photographer, unless he was a contracted employee of AP or (more likely) he has sold the image rights to AP, either for a fixed period of time or outright. Either way, one of those two entities does own the image rights and either of them could sue people for unauthorised usage OR/AND license other entities to use the image, including the politician in question.
Also, there is such a thing as ‘personality rights’ in which the person in the photograph has the right to control use of their image for commercial purposes. So I, as a news outlet, can publish a picture of Donald Trump under ‘editorial usage’, but I can’t use the same image to sell t-shirts without their agreement/paying for the right to do so.
Just because the contents are “virtually identical” doesn’t mean it belongs to someone else.
Now, if you make a T-shirt with a picture that happens to be “virtually identical” to a copyrighted image belonging to a litigious soneone else (like a press agency), your claim that you took the picture yourself would probably need some evidence to back it up. Or, more likely, you wouldn’t be able to make that claim if the plaintiff had technical evidence that you were actually using an unauthorized copy of their material.
If the photographer is a stringer for AP, it likely is AP’s photo now. Unless something recently has changed, they have work-for-hire contracts. I’ve shot for AFP and AP way back in the past and I have no rights to my photos. I still see them pop up as recently as a couple months ago on websites. I get no additional payment for that.
Now, I think Getty has some sort of profit splitting contract, but the traditional wire services don’t, as far as I know. I can always ask as I still know wire shooters. (And people wonder why I didn’t want to continue shooting for these places.)
Even with Getty, the rights still probably belong to the company. That means, for instance, that the photographer has no say in how the image ends up being used (they’ll still get paid for it, but they can’t just say “No, not for any amount of money”, like they could if they owned the rights).
It would of course be possible for one of the big companies to write up contracts whereby the photographer retains ownership of the image and the company just gets a license to it. But they’re unlikely to do so.
So I talked to one of my friends, and, basically, things have not changed much since I shot a bit for the wires. With AP and Reuters photos, they generally pay about $200 for the assignment and get you all credentialed and in the event. You do not keep the rights to your photographs. With Getty (at least sports–I’m not sure they do editorial. I think they share that with AFP), the day-of photos you transmit belong to Getty. The rest the photographer can keep copyright. They also pay around $200/assignment, with a 67-33 Getty-photographer split on sales.
When I worked for magazines, it depended on the contract. I only took contracts that allowed me to keep ownership of all images. Business Week and Car and Driver were two of these. You’d get paid an $800 day rate for them (plus additional space rates for Business Week if they used multiple photos and/or ran them big), but you would not relinquish copyright. There were stipulations on giving them first publication rights and there may have been an embargo period (I can’t remember – this was in the early 2000s). Other magazines had work-for-hire contracts where you gave them copyright.
I asked him about this Trump photo, and he said if it was taken by an AP photographer, it is almost certainly AP’s property. He then grumbled about how shitty a business this is and how he hopes to retire soon.
Regarding pictures copied and sold I think this story is relevant:
TL-DR: When works of art are copied without authorisation the problem for the rights holder is mainly that he has to sue, which is sometimes more trouble than it is seems worth. From the linked article:
“Where infringing use is widespread, it may not be feasible to pursue every single infringement,” Eziefula [an intellectual property attorney] says. “Especially if overseas from the artist’s home jurisdiction, nor worthwhile, where the damage caused is minimal.”
Too often, however, the damage is significant—both in diverting income from artists and in diluting their brand, making them a more difficult proposition for potential clients. People often feel entitled to artwork they find online, and artists experience hostility when they try to assert their ownership of it. Yet, that entitlement is exactly what broke the dam for Jödicke [the artist in question] and paved the way for him to fight back.
I am confident AP has the resources and the know-how to have their rights respected.
As said, AP almost certainly owns the copyright for that picture. A very strong fair use case could be made for using it in news or editorial related contexts. It is definitely a news worthy photo. However, using it in commerce, such as selling a t-shirt showing the photo, would probably not be fair use, and would be copyright infringement.
Things would get murky when selling something that is using the photo to editorialize Trump.
It is never officially fair use until the copyright case is decided in the defendants favor.
If you do want to use the photo, and want to avoid a lawsuit even if you think it is fair use, or use it in a way that is not fair use, then contact the AP, and buy a license to use it. I have no idea how much that will cost.
I’m not even sure they’d sell you the photo for anything outside editorial use. When I go to the AP page for the licensing of the photo, it tells me " This license is for editorial rights only. Clearances may be required for commercial use. By purchasing this content, you acknowledge your responsibility for securing any clearance required." (You can look it up here).
I remember talking to an artist who did those interesting pictures of rainbows and unicorns, etc. (But really good ones, she also did fantasy illustration, etc.) She mentioned finding items like backpacks and school binders, pencil cases, etc. with copies of her art on them. Some were very poor quality, using low-res pictures downloaded from the internet. Many came from China and points east, and it was hardly worth chasing them down. She phoned a few of the manufacturers and some even argued they were doing her a favour by more widely distributing her work.
So for the OP - it’s amazing what you can get away with if you are fly-by-night and don’t care about copyright. They have to find you first.
And if Trump did what he felt entitled to do anyway AP would have to sue him. Just like the towns where he holds those rallies: he never pays. And suing is expensive (in his case not just in monetary terms, you know how vindictive he can be: it would be a blow to AP beig denied access to Trump’s events, particularly in a worst-case-post-november-scenario) and takes a long time.
That I couldn’t say for sure. It seems they will sell you the license to a billboard ad for a month for around $5K, but it also spits out the above warning. I don’t know what “clearances” are necessary. Perhaps its right of publicity clearance, which Trump can give. I couldn’t say one way or another.
Does this mean if you don’t transmit a photo you can keep the copyright. For example if you snap a photo of a genuine flying saucer could you decide to keep it?
I mean, you wouldn’t be on assignment for that. But if one comes mid-assignment, I don’t think that’s their photo. I’d have to ask again. I’ve been long out of the game.
I imagine that it might get fuzzy around the edges of what counts as “the assignment”. Like, the photographer of the fistbump photo was not assigned to cover an assassination attempt. They were assigned to cover the Trump rally, and they got a picture of Trump… but what if they had also gotten a picture of the shooter, for instance?
