CHARLOTTE
CHICAGO
GENEVA
HONG KONG
LONDON
LOS ANGELES
MOSCOW
NEW YORK
NEWARK
PARIS
SAN FRANCISCO
WASHINGTON, D.C.

www.winston.com

November 2009

SPECIAL ALERT

Photographer Retains Rights in Photos Created for Company’s Advertising and Promotional Materials

Learning Curve International (“Learning Curve”) is an authorized licensee of the popular “Thomas & Friends” train characters. Learning Curve hired Daniel Schrock, a professional photographer, to take pictures of the toys for use in its promotional materials. Learning Curve used Schrock’s photographs on a regular basis in its advertising and on product packaging. After Learning Curve stopped giving Schrock work, Schrock registered his photos for copyright protection and sued Learning Curve for copyright infringement. The appeals court reversed the lower court’s decision to dismiss Schrock’s claim for copyright infringement. Specifically, the court found that simply because the photos were deemed derivative works of the copyrightable train characters does not mean that Schrock needed authorization from Learning Curve to copyright the photos. As long as Schrock was authorized to create the photos (he was), he owned the copyright on the photos to the extent of their incremental original expression. Therefore, the court concluded that Schrock created the photos with permission and therefore owned the copyright to the photos provided that he satisfied the other requirements for copyright, and the parties did not contract around the default rule.

TIP: Companies that hire photographers or videographers to create promotional materials should have agreements that transfer all intellectual property rights in the creative materials to the company to the extent possible.

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