By Nancy Wolff, Esq.

Q.
I have a pressing legal question regarding the ownership rights to a set of negatives from a project I engaged in with my ex-girlfriend. She has begun threatening me legally, claiming that she has the property rights to the negatives despite our co-ownership. I bought the film, shot the photos in my studio, hand-processed the film and made the prints. But I used her camera. Are they mine or hers? Can she sue me for them? She has also been equally anxious to get her hands on my negatives that have her posing in them (no nudity and all voluntary). Does she have any rights to those?
Stephen J. Cardinale, via e-mail

A.
Ownership rights to photographs are based on copyright law and not ownership of the camera, unless there is an agreement to the contrary. So even if a photographer borrows, rents or uses another’s camera, the copyright of the work remains with the author; in this case, the photographer. It is not relevant whether the photographer, model or hiring party purchases the film, or provides or pays for the camera equipment. Unless the photographer is an employee or transfers ownership of the copyright in writing, he or she remains the sole owner of the copyright of the photographs.

In the situation described above, the photographer and the model do not own the photographs created during the shoot together as co-owners. The model who merely provided the camera or posed before it rights to the photograph were given or transferred to a third party. So for example, if you create a photograph and sell a print of that photograph to a collector, the collector acquires rights to the physical object—the print—but acquires no rights to the photographer’s copyright and would not be entitled to make any reproductions of the print or exercise any of the exclusive rights that the copyright owner is entitled to. Further, the collector would not acquire any rights to the underlying negative, only the purchased print.

This means that if the photographer in the example above gave the model a print, the model would own only that print and would have no ownership rights to the negatives. The photographer could use photographs taken of this model without obtaining additional permission unless the photographer wanted to use the photograph for purposes of advertising or trade. With regard to advertising or trade, the model retains rights of privacy and rights to publicity in her likeness; these rights are separate from the copyright of a photograph. If the photographer wanted to use any of these photographs for advertising purposes, the photographer must obtain consent of the model and should have the model sign a release.

Nancy Wolff specializes in intellectual property law and new media law and has been an adjunct professor at the Benjamin N. Cardozo School of Law, teaching mass media and entertainment law. Got a legal question? E-mail us at cschultz@pdnonline.com.