Photo and video shooting in a beauty salon

Alena Garnik , lawyer with practical experience in organizing and supporting business activities (including judicial practice), civil law consultant
issues and taxation, head of the consulting sector at the company “Liga:Zakon” (Ukraine)

One of the current trends in judicial practice in recent years is the increasing number of disputes related to the protection of intellectual property rights. The lion's share of these disputes concerns copyright and related rights,
with which, sometimes without even knowing it, representatives of professions related to the beauty industry come into contact in their work. Therefore, in order to avoid unpleasant surprises, below we will draw attention to the main pitfalls and outline some warnings regarding possible violation of intellectual property rights
property.

Of course, the main criterion when choosing a beauty salon, hairdresser, cosmetology parlor is the quality of the services provided, which would

optimally correlated with their cost. At the same time, in order for customers to return with pleasure again and again, it is important that:
In addition to highly professional service, they felt comfortable and cozy while visiting you. Trying to create an attractive atmosphere, many salons resort to decorating the premises with paintings and photographs, and also use sound recordings of various musical works.

However, practice shows that not everyone thinks about how not to violate intellectual property rights.

Paintings and photos in room decoration

According to clauses 8, 10, part 1, art. 8 of the Law of Ukraine “On Copyright and Related Rights” dated December 23, 1993 No. 3792-XII (hereinafter referred to as Law No. 3792), the objects of copyright are, in particular, works of fine art and photographic works, including works made in ways similar
photos.

Moreover, only the person who has copyright can authorize or prohibit reproduction (production of one or more copies), as well as public display and public display of the work by other persons (clause 1, 3, part 3, article 15 of Law No. 3792) .

To put it in the simplest possible terms, by printing an image downloaded from the Internet and then showing it in public places, including beauty salons, you knowingly violate the rights of the author or another person who owns the copyright to a particular work. Yes, we agree, the likelihood that this violation will be detected and the author will seek protection of his rights is extremely low. However, if, in addition to displaying the image in the salon, you decide to use it, for example, to design advertising materials intended for distribution to a wide range of people, then the chances of hearing claims from copyright owners will rapidly increase.

So, the conclusion suggests itself: thoughtless use of Internet content is fraught with consequences. How to avoid them? There are several options:

• if there is a technical possibility, it is most profitable to take photographs yourself and then use your own photographs for interior decoration, as well as for advertising purposes. This way, you will not only not violate anyone’s copyrights, but you will also be able to demonstrate to your clients not just beautiful makeup or hairstyles, but the work of your salon’s specialists who will prepare models for photography;

• use images from photo banks. Note that many photo banks, in addition to paid content, offer photographs for free use. True, one cannot count on their exclusivity, of course;

• enter into a written license agreement with the owner of the copyright in the image, stipulating its validity period, method of use of the work,
the territory covered by the transferred right, the amount and procedure for paying royalties. This option is relevant if it is important for you to obtain permission to use specific works whose author you know.

Music played indoors

If in the case of paintings and photographs we dealt exclusively with copyright, then with musical works everything is somewhat more complicated.

The words of the song and the music written for them are objects of copyright (clause 5, part 1, article 8 of Law No. 3792), and the performance of a musical work and the phonogram (sound recording of such a work) are objects of related rights (clause “a” ", "b" part 1 of article 35 of Law No. 3792).

Of course, it is not feasible in practice to agree on the possibility of playing each musical work in a public place with its authors, performers, as well as holders of rights to the phonogram.

But, fortunately, this is not required. The legislation provides for the activities of authorized collective management organizations that collect remuneration for the use of phonograms (videograms) and control their lawful use (Part 2 of Article 43 of Law No. 3792).
The list of existing collective management organizations is posted on the official website of the Ministry of Economic Development and Trade of Ukraine. In order to play music in your salons without fear, you need to contact one of the named organizations, which is authorized to manage both copyright and related rights, and enter into an agreement with it, having previously decided on the works that you want to play in your place.

Anticipating possible questions, we emphasize that it is necessary to conclude an agreement with a collective management organization regardless of the source of music playback (laptop
beech, telephone, radio, tape recorder, etc.).

The fact will not justify you if the music is played from a licensed disc or purchased from paid sources on the Internet.

We also draw attention to the fact that since the income of a collective management organization directly depends on the remuneration they collect for the use of musical works, representatives of such organizations perform their work efficiently.
The number of lawsuits related to the unauthorized playing of music is growing rapidly. Therefore, before deciding to use musical works without a concluded contract, we kindly ask you to weigh the pros and cons.

In particular, if we talk about civil liability, then, according to Part 2 of Art. 52 of Law No. 3792, the court has the right to make a decision or determine
talk about:

• compensation for moral (non-property) damage caused by violation of copyright and (or) related rights, with determination of the amount of compensation;

• compensation for damages caused by violation of copyright and (or) related rights;
• recovery from the violator of copyright and (or) related rights of income received as a result of the violation;

• payment of compensation, the amount of which is determined by the court in the amount of 10 to 50,000 minimum wages, instead of compensation for losses or recovery of income (in 2018 - from 37,230 to 186,150,000 UAH).

Photo and video shooting of models
Another point of contact between representatives of the beauty industry and copyright is filming the results of their work. Agree, there is hardly at least one master (be it
makeup artist, hairdresser, cosmetologist, eyebrow artist, nail or eyelash extension specialist) who has not at least once taken photographs or recorded a video with the results of his work. At the same time, many craftsmen are concerned about the question of whether they are violating the copyright of the model.

Let’s say right away: in most cases, there is no talk of intellectual property rights in this situation. In order to be considered a co-author of a photograph, the model must participate in its creation through creative work. That is, if, for example, we are talking about some kind of stylized, thematic shooting, where the model must present her image through interesting posing, or if, say, the model participates in constructing the composition in the frame, or in any other way contributes to the creation of an original photographic work, of course , there is reason to talk about the co-authorship of the model. However, this applies to a greater extent to professional photography, which is practiced at modeling shows and other similar events.

In the case where the role of the model is reduced purely to the fact that, say, she was put on makeup, combed her hair and then photographed, of course, there is no question of any creative participation in this case. At the same time, any individual has personal non-property rights that are not related to intellectual property rights.

One of these rights is provided for in Part 1 of Art. 307 of the Civil Code of Ukraine (hereinafter referred to as the Civil Code) and is as follows: an individual can be filmed on photo, film, television or video tape only with his consent.

Please note: if filming is carried out openly on the street, at meetings, conferences, rallies and other public events, the person’s consent to be filmed is presumed. True, this norm works if the filming is carried out on the territory of Ukraine. In particular, in those countries in which the sensational General Data Protection law is in force

Regulation (GDPR), which came into force on May 25 this year, you need to be extremely careful when using photos taken at public events. So, if you are taking part in any events held abroad, be sure to first discuss with the organizers the rules for using photographs taken at such an event.

There is also a rule that states that photographs and other works of art depicting an individual can be publicly shown, reproduced, or distributed only with the consent of that person (Part 1 of Article 308 of the Civil Code of Ukraine). Moreover, if an individual posed for the author for a fee, the photograph or other work of art may be publicly displayed, reproduced or distributed without his consent (Part 2 of Article 308 of the Civil Code).

In other words, if you photograph your model with the goal of later showing these pictures to an unlimited number of people, do not be lazy to get her written consent. For convenience, we advise you to prepare templates of consent statements in advance, in which, among other things, you should clearly indicate the possible directions for using the photographs taken, and during each photograph, give the model such a statement to sign.
Please note that if you publish the photographs you take on social networks or on the website, in handouts and otherwise use them to attract clients, you will also be subject to the
Law of Ukraine “On Advertising” dated July 3, 1996 No. 270/96-VR, in accordance with Part 1 of Art. 8 of which, in advertising it is prohibited to use the image of an individual or his name without the written consent of this person.

So, we’ve sorted out a little about personal non-property rights. But what if the model did participate in the creation of the photograph as a co-author? In this case, it is necessary to take into account

that, according to Part 1 of Art. 13 of Law No. 3792, the copyright for a work created in collaboration belongs to all co-authors. The relationship between the co-authors is determined by the agreement concluded between them. Moreover, if a work created in collaboration forms one inseparable whole (and this is exactly the case with a photograph)
and occurs), then none of the co-authors may, without reasonable grounds, deny the others permission to publish, otherwise use or modify the work. Here you need to understand that the co-authors may not necessarily be a photographer and a model.

A much more common case is when the co-authors of the work are, for example, a photographer and a retoucher (photo editor).

And finally, one more relevant point. What if you are an employer and the photograph was taken by an employee on your behalf? Who - you or your co-
is the worker the copyright holder of the photograph taken?

Will there be any claims from such an employee if you use photographs taken by him after his
layoffs? The answer to this question is contained in Art. 16 of Law No. 3792, according to which the exclusive property right to a work of service, namely a work created as part of the fulfillment of obligations under an employment contract, belongs to the employer, unless otherwise provided by the employment contract or civil law contract between the author and the employer.

For the creation and use of a work for hire, the author receives royalties, the amount and procedure for payment of which are established by an employment agreement (contract) and (or) a civil law agreement between the author and the employer.

First published: Nouvel Aesthetic 6 (112)/2018