| Still images are copyrightable and the same copyright, trademark, character, and tort issues that arise with the use of motion pictures apply here as well. Likewise, copyright defenses predicated on fair use or the First Amendment can be invoked.
It can be especially difficult to determine whether a photo is copyrighted and the identity of its owner. Many photos are not registered with the copyright office. Even if registered, a search can be tiresome since a photo may not have a title or the title may not accurately reflect the image.
Some photos are clearly in the public domain, such as those in the National Archives in Washington, D.C. For other photos, the licensee should request the licensor to warrant that the licensor has all rights to a particular photo, including releases from any identifiable persons in the photos, and indemnify the licensee if a claim should arise from a third party. Photographers may own the copyright to their photos but do not necessarily have releases from their subjects giving the photographer the right to use the subject's image in other media and for other purposes.65
The license to use a photo should include a waiver of moral rights. Permissions may be obtained for some photos through the Graphic Artists Guild or the American Society of Media Photographers.
Footnotes and citations:
65 See Faber v. Condecor, Inc., 477 A.2d 1289 (1984)
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