Legal Question in Intellectual Property in California
Use of image on merchandising
Many years ago my husband was in a band and photos were taken for album covers and publicty shots. It has come to our attention the record label has licensed the photos to a 3rd party who has been selling merchandise with my husband's (and his band mates) image. Someone mentioned that he should be getting paid for this merchandise but after 3 years, he has not. Does the label have the right to license these photos since they own the copyright on them without passing on compensation to the artist? If a payment is owed, would the payment come from the label or from the party who sells the photos on their shirts? Thanks for your help.
3 Answers from Attorneys
Re: Use of image on merchandising
Your question goes to issues of contractual rights. When the label had the photos taken they likely got a release from the members. This may have been a seperate agreement or part of a larger one. In any event, you need to review your contractual language to determine (i) if the label has the right to license the images to third-parties and (ii) if you are entitled to any royalties from the use of the image. In the unlikely event there is no contract addressing this then you may have a claim under rights of publicity.
Re: Use of image on merchandising
the terms of the contract between your husband's band and the label would be primarily controlling here. you should have an attorney look at that contract specifically and then advise you from there. if there were no contractual stipulations regarding this issue, then your husband's band could have actionable remedies available, i.e. invasion of privacy (misappropriation of image/likeness for commercial gain), etc..If you would like further assistance, contact us directly.
Re: Use of image on merchandising
It depends on who is the copyright owner, as that can depend on what contracts or agreements were entered into.
In addition, if your husband is relatively famous, he might have "publicity rights" and can sue anyone who has improperly used his image and likeness.
You should consult a qualified intellectual property attorney.
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