One of the most important things you need to do as a fitness business owner is to invest in your own business and legal education. Why? Because as a business owner you own intellectual property. Logos. Images. Slogans. Business name. Program names. Maybe even original training moves or specific programs. You may be letting protectable and proprietary information be stolen by others... ...or you're doing it to others. Let's remedy this now.
What is copyright?Copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Copyright is a property right. Violation of a copyright is called infringement.
Publicity Rights or Right of PublicityThe Right of publicity means the right of an individual to control any commercial use of his/her name, image, or some other aspects of one's identity. The right of publicity is enforced through state law in the US- although the federal Lanham Act does provide clear guidance under federal law in relation to privacy rights. The recognition of the right varies from state to state, including statutory penalties in some jurisdictions. States which do not have specific legislation relating to the right to publicity recognize the right by way of common law. It is generally considered a property right rather than a personal right, which arguably means right of publicity is descendible to the person's heirs after their death. Some states including Virginia making statutory provision for the preservation of the rights of publicity following death. What do you do if someone uses an image of you without your permission?
What is copyright ownership?Most basically, copyright is the ownership of a work. Permissions can, however, be given for use. These can include reproduction rights to a client through a print release while retaining copyright ownership. These are most often referred to as licenses. According to the U.S. Copyright Office, the owner of the “work” is generally the photographer or, in certain situations, the employer of the photographer. Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph. If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.
Do I have to give notice of copyright ownership?Although beneficial, the use of a copyright notice is no longer required under U.S. law. Use of the notice can be helpful because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office. Innocent infringement occurs when the infringer did not realize that the work was protected. If a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law.
Copyright RegistrationTo receive damages for copyright infringement registration is required, but not for protection to be triggered. Damages are limited to actual damages for unregistered photographs. If you are a fitness photographer or a fitness professional who owns the copyright to images, you may want to consider adding copyright registration to your workflow and consider this as a cost of doing business!
Are there any defenses to use of an image without permission?There are a few – but it is important to know that failure to know that copyright exists in the image (including the identity of the owner or ignorance of the law) are not acceptable defenses. Under the Fair Use Doctrine, copyright images can be used. Fair Use is complex and it is unlikely that any use within the context of a fitness business would ever satisfy the requirements and factors necessary to rely on fair use. What happens if someone uses an image of you without permission?
What is Fair Use?Section 107 of the copyright law houses the doctrine of fair use. Fair Use means that the use is not limited by the rights that are normally reserved only for the copyright owner. Some of these purposes include commentary, news, criticism, comments, teaching, and research. Fair Use is complex.
What do I do if I find someone infringing on my copyright? What if someone steals my image?You have a few options. Read more about what to do if someone steals your image. But here is a short list of some ways you might approach this situation:
- Ask nicely for them to give credit and/or remove the image! Remember: giving credit is not enough and does not negate copyright infringement.
- Professionally and calmly send a letter requesting removal of the image. You can do this as well as filing a DMCA. We explain elsewhere what to do when a brand steals an image of you (perhaps because you are wearing their brand).
- File a DMCA notice with the Internet Service Provider (ISP). This will have the image or file removed from the infringing site through a “take down notice.”
- Send a Cease and Desist letter citing specific copyright laws (view the intellectual property defense kit here)
- If images are being used commercially, you may also consider sending an invoice for their use.