Headshot Hot Takes

If I died tragically in some horrific-but-captivating murder (sorry, mom, go with me here) and one of my former industry colleagues were to produce an hour-long episode about my demise, you bet that there would be a producer asking my mom for photos of me alive and well. My mom would comb through her detailed archives, the producers would select their favorites, and my mom would sign a standard materials release attesting to the fact that she owns all rights necessary for the producers to use these elements in and in connection with the series. For purposes of this article, the producers want, need, and absolutely must have my preschool picture, senior portrait, and professional headshot. Are they OK to use these photos in the episode, what exactly is the law, and, as always, is any of this worth the risk?

We will start with the easy “no” and that would be the one with the distinct “Prestige” watermark (because of course my mom kept the proofs). The silver lining is that we now know who took the senior portrait my family ended up buying. Prestige Portraits remains in business out on Long Island, so my advice would be to pass the materials release along to them, even if my mom has physical possession of the photographs. Why? Because watermarked or not, it is unlikely that my mom acquired the copyright or the explicit right to license the portrait in connection with the production, distribution, exhibition, and exploitation of a television series, and all advertising, marketing, promotion, and merchandising in connection therewith, which is what that “standard materials release” is going to require, so the best place to secure those all-encompassing rights is back at the source.

Without the watermark, it becomes harder to find the copyright holder for analog images. This is the situation we’d find ourselves in with my preschool portrait. Would the producer’s diligence succeed in figuring out the portrait company? Would they still be in business? And if they are unsuccessful, what are the chances that the copyright owner would recognize my cherubic face as being their work of authorship? The risk of that happening (for me anyway) is probably low, but that was not the case for the photographer of Meghan Markle’s high school portrait.

In Dlugolecki v. Seth Poppel, et. al., the yearbook photographer spotted pictures taken at Immaculate Heart in the 1990s in several of ABC’s news broadcasts. What tipped the scale in his favor was that ABC stood to “profit from exploitation of the copyrighted material without paying the customary price.” Though the court felt that the use of the yearbook photos was transformative, they did not find it “considerably, or overwhelmingly, transformative” and most “were not necessary for the story being told.” But are pictures ever necessary to storytelling? This is a really hard call to make, and why there is a constant, but loving, tension between me and my teams (who always want to use more images, more times, for longer durations and I would rather they produce a glorified podcast). In the case of the preschool portrait, the producers were trying to pay the customary archival license fee but they could not figure out to whom they should cut the check. So we are left to decide whether this use meets New York’s heightened standard of a “considerably, or overwhelmingly, transformative use” as opposed to a run-of-the-mill transformative use. I’m optimistic that, in connection with the episode’s overall purpose, it would.

Which leads us to the genesis of this article—my professional headshot and the one ruling that actually discusses the fair use of professional headshots. In the California case of Dhillon v. Does, Harmeet Dhillon commissioned a headshot in connection with her candidacy for Member of the State Assembly and in connection with other political campaigns, political activities, and professional marketing efforts. In 2013, the website MungerGames.net published an article entitled “Meet Harmeet” including the headshot and was subsequently sued for copyright infringement. Dhillon wanted what she felt was a customary $250 retroactive license fee for the website’s use and for the website to take the image down. The court said no. They concluded that the website made a “paradigmatic fair use” of the headshot primarily due to its “transformative” use of the photograph. Whereas Dhillon used the headshot “as a tool to positively market [and identify] herself,” the website used the image “in connection with an article criticizing [Dhillon’s] political views.” The episode’s purpose is patently different from my goal in obtaining and using the picture and thus would likely be “transformative” enough to support a finding of fair use under California law.

So why do Dhillon and Dlugolecki come to such contrasting conclusions on seemingly similar questions of copyright law? In my opinion, these cases show how a bias in favor—or against—the subject of a portrait improperly influences a fair use assessment. The Supreme Court may give us some “considerably transformative” guidance on the meaning of a transformative use this term, but my gut says that the “billowing white goo” of fair use as we know it is here to stay (like our own little antibiotic-resistant strain of the law). Congress may have to fix a law that: (1) allows the paparazzi to win lawsuits against the celebrities who make their creepy shots valuable in the first place; (2) was absolutely not drafted with a mind towards regular folks like me having TWENTY ONE THOUSAND FOUR HUNDRED AND SIX PHOTOS ON MY iPHONE; and (3) forces creators to contend with draconian statutory remedies of “not less than $750 or more than $30,000” per infringement or up to $150,000 if the infringement is “willful.” So if you feel like speech is a little chilly or you're up against a bully, I get it. Part of your soul will die when you put down your boxing gloves and swap out the shot or cut the settlement check, but sometimes those alternatives and creative solutions aren't so bad. For me, I ended up with a very snazzy new headshot that I plan to use for as many years as I can get away with.

(Special thanks go to my assistant, Phyllis Sawyer, and JW Headshots)