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SyFy’s Heroes of Cosplay Show Accused of Copyright Infringement

heroesofcosplay

Earlier this month, the Syfy channel — which is owned by NBC Universal — debuted a new show called Heroes of Cosplay. The show pits nine big-time cosplayers against one another as they try to make a name for themselves in this world of fantasy costume play.

It’s a big show on a popular network that is backed by an even bigger company, so you can imagine how surprised photographer Bryan Humphrey was when he saw that the show has used his photos of some of these cosplayers without so much as asking permission or even notifying him — and forget about payment.

Here’s a look at what Heroes of Cosplay is all about:

The incident has led to a back and forth between NBC Universal and BGZ Studios — Humphrey’s “business advocate” — as they each try to get what they want. Namely, NBC would like to keep using the photos without paying a cent, while BGZ would like the almost $30,000 invoice they sent NBC paid in full.

Here’s a photo of that invoice:

cosplay1

The invoice was sent via email to NBC Universal, alongside a letter detailing every instance of infringement, proving authorship, explaining the invoice and asking that the matter be settled out of court prior to September 24th, 2013.

Senior Production Counsel for NBC Universal, Robyn Aronson, called BGZ shortly thereafter, but the conversation didn’t go the way BGZ might have hoped. They were told that NBC had made a deal with the cosplayers, who claimed co-authorship of the photos and therefore had every right to license out the images as they pleased.

That call was followed by an e-mail that said more or less the same thing, ending with the line “this is not intended to be a complete statement of facts relevant to this matter…” BGZ agrees with that last statement, while disagreeing with pretty much everything else NBC said.

Here’s they’re reply (click for larger version):

cosplay2

Since then communication has ceased, but not before Syfy and NBC allegedly began accusing the cosplayers of wrongdoing, and threatening to compromise their careers.

BGZ sent out one more email before going public with the complaint, but NBC has kept silent. The studio has three lawyers all currently asking to represent them in this case, but BGZ is keeping them at bay until the September 24th “due date” comes and goes. After that, in their own words, “it is very likely this may go to litigation.”

To read more about the case and keep up as they post updates if and when NBC finally responds, head over to the BGZ blog by clicking here.


 
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  • Jonathan Maniago

    On the issue of cosplay and paid photography, can artists/writers/publishers expect something in return since the characters being portrayed by cosplayers are actually their creations?

  • ninpou_kobanashi

    I shoot a lot of cosplay, and I never get signed releases. Who owns what in these kinds of cases?

  • Rob Elliott

    I’d be interested in the facts related to the licence, if one exists with the models. Is this a case of a model not understanding what their rights to the images that are shot of/for them are? Or is this is a case of a photographer thinking the sky is falling?

    If I shoot a portfolio shot for a model, and the model is interviewed for a Fashion TV show, or participates in say Americas next top model (I don’t shoot models I’m not that skilled yet). If they show the image from their portfolio on the show and instead of a over the shoulder image they use a Digital version of it, are they violating the intent of portfolio image?

    It be interesting to know some of the details behind which images were used, and what they were originally shot for, if only as a teaching moment for both photographers and subjects.

  • Sean Shipley

    Their reply’

  • Jason Wright

    I am pretty sure you own the rights to your photograph.
    Especially if they are in public and explicitly allow you to photograph them with their knowledge without asserting any rights over the image.
    That said, standard model release rules for your country law STILL apply. It’s your photo but what you can do with it is limited by those laws.
    In future ALWAYS get signed releases, it will save you trouble in the long run.

  • Jason Wright

    Sounds to me like it’s a bit of a failure on the models part to understand their own licence. They probably reasonably thought using them in the show was OK as they thought it was “self” promotion.
    That simple mistake has now been blown completely out of proportion by a big studio being ****heads about the whole thing.
    They could simply of said “we acted in good faith based on information provided, sorry if this was wrong but it’s not our fault. Please negotiate with us for a fair deal for all”.
    Instead however they pretended to be the big man and tried to trample all over what appears to be a legitimate rights claim!
    Oh how the tables turn when somebody violates their IP!

    It’s the double standards that kill me.

  • http://www.bobcooleyphoto.com/ bob cooley

    You own the photographs, but have no rights to use the models’ likeness commercially without the release. You can use it for your portfolio, hang it in a gallery, publish it in an news-gathering context, or publish it in a book of documentary or artistic work without a release.

    To use it in Commercial context (Sell it on T-shirts, sell as stock photography, publish as fashion in magazine/print publications, use for the cover of a book, or for any type of advertising), you’ll need a release signed.

    This is by not means an exhaustive list, but it gives you a general set of guidelines in where you’ll need a release, and where you will not.

    Its a best practice to always get a release, even if its a simple release – you can find plenty of examples of simple releases on the web and on the ASMP website.

  • http://www.bobcooleyphoto.com/ bob cooley

    The license issue (with the models) is pretty clear – its very rare that a pro photographer would issue any license for commercial use to a model, unless the model paid for that specific usage. Not saying it doesn’t happen, but it’s not standard operating procedure. Even if the photographer issued a commercial use license to the Model, it would be unlikely that they would give the model the rights to issue the license to others without prior permission/compensation of the photographer. The only scenario where the photographer would not be consulted would be if the model hired the photographer and bought ALL rights from him (a buyout) – which is rare, and typically pretty expensive for the model.

    In this case (as per the photographers notice to NBC), the images were being used online as promotion for the show (a clear advertising context) – this would definitely warrant licensing from the author.

    In the scenario you describe, It would likely depend on the context – if the model was just flipping through her portfolio, and it was being documented by the camera, merely seeing the photo quickly wouldn’t likely constitute a use that required a fee – its the reportage aspect of ‘reality’ programming. However, if the image were made the focus (camera concentrates on the image, or the image is used as a capture/graphics/freezeframe), it would warrant a fee being paid to the creator of the image, and permission to use in advance with the fee pre-negotiated.

    I’m surprised that NBC wouldn’t just settle this – in the context of the show budget, this has to be minimal, and they definitely know their copyright law better than they are letting on…

  • AMonkeyInMyPocket

    Will be interested to see what happens, but this seems like the wrongdoing was actually perpetrated by the cosplayers in delivering imagery they didn’t own the rights to, and not by Syfy.

    Syfy likely had the cosplayers sign a disclaimer stating that they owned licensing rights to the photos. I think Syfy will probably just turn the issue back onto the cosplayers.

  • Alex Minkin

    please, listen to bob. that’s about the most straight forward and accurate explanation you’ll ever get about why you should ALWAYS get signed releases if you EVER want to sell an image you took.

  • http://www.bobcooleyphoto.com/ bob cooley

    Even if they did have the cosplayers sign a waiver – they know that such a wavier doesn’t hold them safe from legal claims. They should have done due diligence on this – a waiver doesn’t supersede existing laws or rights – their line producer and legal team would know that…

  • MattB81

    I agree with you completely

  • MattB81

    I truly believe that this likely started on a misunderstanding of ownership and rights on the part of the model. This is becoming more and more of a common place issue as most models have somehow gotten the idea that they own the rights because they are in the photo and can thus do whatever they please. I cover a lot of car shows and do a number of individual shoots with many of the models who work those shows who then believe they have the rights to use sell prints of the photos at the shows and on their websites. It’s honestly that they don’t know but it’s something I think photographers in general need to be a little more vigilant in explaining and educating the models to.

    The actions of NBC though in this situation make me thing that permission was likely at the low end of anyone’s concern there. What could have been excused away as a honest mistake and made right with a little conversation and negotiation has made yet another copyright situation pop into the headlines.

    Large studios these days take more and more the stance that you should just be happy we’re showing your work and when that does not work they posture up knowing they have deeper pockets to go to litigation with. What is nice to see is the number of attorneys in the photography and copyright specialties willing to take up cases like this on a contingency basis and in some cases completely pro bono.

    Will be interesting to see how this one plays out or if it just silently goes away.

  • Rob Elliott

    But you shoot something for a persons cosplay portfolio what is fair use of that portfolio. If you are showing off the Portfolio on a TV series as a representation of you.. are you violating the terms.

    I remember in the 90s it was common to see a select image from portfolios to show up on screen in full on shows like Fashion Television and Fasion File because the show was showing off the models Portfolio in a piece on them. Is it commercial use is the question that needs to be addressed. (then again Copyright worked very differently in Canada at the time)

    I don’t know the context the photos were used, and it would be interesting if NBC see is looking at this issue in this manner. I’d be interested in knowing how this plays out.

    I didn’t see how the images were used it is fully possible, but it may fall under self promotion, and I think NBC is betting on this.

  • AMonkeyInMyPocket

    Does a print house have to do “due diligence” on every single photo that is submitted to print? If I stole a photo off the net, uploaded it to WHCC (and signed-off saying I owned it) and they printed it, you’re saying THEY would be liable instead of me? That doesn’t make sense.

    In this case, the cosplayers are the ones who gave unlicensed imagery to a company for production. But it appears that the photographer doesn’t want to hold the cosplayers liable (perhaps because it’s more lucrative to try to go after a corporation?).

  • http://www.bobcooleyphoto.com/ bob cooley

    No, because printing an image doesn’t have any commercial licensing repercussions. They are simply reproducing the image, not using it in an advertising context.

    The issue here is that Syfy used the images on their website in an effort to advertise their show. That is a commercial use, and requires the proper licensing from the author.

    The cosplayers, if they are truly professionals, should have known better, but it is much more likely that they made a good-faith mistake if they haven’t dealt with this sort of scenario before, however the line production team for a television show certainly DOES know better, its part of their job.

    The cosplayers may have provided the images, and made a good-faith mistake in not knowing what their actual rights to the images were, but the program / network actively published the images for advertising, knowing the law and possible repercussions.

  • http://www.bobcooleyphoto.com/ bob cooley

    Rob, in the scenario you describe, the show likely obtained the rights.
    Most shows do – this is just a case of this program seems to have skipped that step.

    The sad thing is that had they just asked, they may have gotten clearance for very little money, maybe even just the credit – its good advertising for the photographer (though I do hope there would be pay involved). But because they wanted to take the cheap and sneaky route, they are being called out and will likely have to pay more both monetarily and in reputation.

    The photographer actually has a good copyright case here, and if he decided to go through copyright litigation, SyFy stands to lose a lot more…

  • Dikaiosune01

    I think the issue is the misunderstanding of the cosplayers slash subjects. Premises; (1) The photographer, i.e. the creator, owns the copyright to all images he creates unless explicitly signed off otherwise (typically in a contract). Therefore the photographer owns the copyright, not the cosplayers. (2) The subject signed an agreement with Syfy under the understanding that the subjects had exclusive rights to the photos in good faith. (3) the agreement between Syfy and the cosplayers most likely stipulates to some degree that the subject has exclusive rights to use the photo (i.e. the photographer has waived his rights of ownership) (4) therefore, it is not Syfy’s responsibility to additionally verify that the subject has already declared.
    The worse case scenerio will end up where the cosplayer will need to foot the bill for the infrindgement because in essence it is the cosplayer who really violated the photographer’s exclusive rights. Syfy had already exercised their diligence (or manipulation) to shift the burden of responsibility onto the cosplayer.

    Now, what if because of this, people won’t be allowed to take photos at cosplay conventions anymore? Who else is going to take a picture of that 40 year old, plummer butt, beer gutted cosplayer trying to dress up like sailor moon. (For the presveration of your eyes, I won’t link to that picture)

  • ninpou_kobanashi

    Thanks for the info!
    I find this part especially interesting and am wondering why it is so:

    “publish it in a book of documentary or artistic work without a release”

  • http://www.bobcooleyphoto.com/ bob cooley

    ninpou,

    Because these usages don’t fall under commercial advertising use, but rather use for artistic or journalistic endeavors, and they don’t deprive the right of the subject to profit commercially from the use of their likeness. Personally I would still get a release (as a courtesy) for an art book, but time and again its been held up that its not needed.

  • Ellis Vener

    “They were told that NBC had made a deal with the cosplayers, who claimed co-authorship of the photos and therefore had every right to license out the images as they pleased.”

    As Garry Winogrand once said when a man asked him to stop taking his picture; “They’re not your pictures, they’re my pictures!” (source: Jay Maisel.)

  • chris d thompson

    NBC should just pay this and get it out of the news. He didn’t even charge them extra for for the unapproved usage! 30 grand for broadcast usage? STFU and pay it NBC.

  • M.I. Summerset

    While the photographer should probably be paid for the photos, the amount being asked for the photos is unreasonably high. $3,500 for a single picture?

  • Rick Lopez

    Nope. You can’t copywrite something that’s already the intellectual property of another.

  • Rick Lopez

    Wrongo. The ‘models’ in question cannot ‘sign off’ on their image and they are almost always portraying a copywritten character from comics, movies, or video games and you can’t copywrite something that’s already copywritten.

  • Rick Lopez

    Wrongo. The ‘models’ in question cannot ‘sign off’ on their image and they are almost always portraying a copywritten character from comics, movies, or video games and you can’t copywrite something that’s already copywritten. Neither the photographers NOR the models own the property to use in a commercial fashion. Period. If you take a photo of a girl dressed as a pikachu, the intellectual property of pikachu is still intact and in play and therefore you cannot sell photos for profit or put that image on a tshirt or whatever without being libel for the damages and profits.

  • http://www.bobcooleyphoto.com/ bob cooley

    In the first place, there is no such word as “copywritten” in Intellectual Property law, its ‘copyrighted’ – and in the cases where characters are creations of someone else (an existing comic, movie, etc) they are trademarked, not copyrighted.

    And you certainly can create a copyrighted work of a trademarked entity. It the case of the cosplayers (let’s use the SyFy show as an example); the very nature of cosplay is parody, and is one of few valid fair use arguments for trademarked/copyrighted materials being used in a transformative manner.

    Even in cases where the work wouldn’t be considered transformative or parody, the model still has the right to sign off on her own likeness- she may not have the right to sign off on the trademarked character, but that’s a different matter, and one that the photographer, or producer would have to get under separate cover – it would not be the responsibility of the model, since she is not the publishing/producing entity.

    If you are going to try to correct people, kindly have a correct understanding of the law. Thanks.

  • http://www.bobcooleyphoto.com/ bob cooley

    Copywritten is not a work in Intellectual Property law- its
    “Copyrighted”, and what you are describing is a issue of trademark, not
    copyright.

    You certainly can create a copyrighted work of a trademarked
    entity. It the case of the cosplayers (let’s use the SyFy show as an
    example); the very nature of cosplay is parody, and is one of few valid
    fair use arguments for trademarked/copyrighted materials being used in a
    transformative manner.

    Even in cases where the work wouldn’t be considered transformative or
    parody, the model still has the right to sign off on her own likeness-
    she may not have the right to sign off on the trademarked character, but
    that’s a different matter, and one that the photographer, or producer
    would have to get under separate cover – it would not be the
    responsibility of the model, since she is not the publishing/producing
    entity.

    If you are going to try to correct people, kindly have a correct understanding of the law. Thanks.

  • Jason Wright

    Correct. However copyright on your photo is not copyright on something that may be IN the photo.
    A photo of something has it’s own copyright independent of the state of copyright of items in the photo.
    Just as owning a copy of a movie on DVD doesn’t give you the rights to the movie itself but the DVD is legal and you have the right to watch/sell that disc.

  • http://www.korioi.net/ Korios

    No, anyone with elementary legal knowledge knows that the subject of a photo is not the owner of the photo. Disclaimer signing is not valid unless the subjects present proof of owning the photo (presumably by buying it from the photog)