Hello, please can I ask if anyone has thoughts / knowledge on this from a copyright perspective?
I've taken a photograph of a friend dressed up as Spiderman in the Cairngorms National Park in Scotland (a fun out-take after a running shoot as he uses the costume to raise money for children's charities).
A large US outdoor magazine wish to buy the picture and publish it in a section of their magazine and website.
Q. Can I sell the image to the magazine for editorial use without infringing Marvel's copyright?
I believe I can (based on editorial purposes not needing model releases) but I'm wary so I've written to Marvel to ask them.
What do you think is the correct answer though?
"Q. Can I sell the image to the magazine for editorial use without infringing Marvel's copyright?"
Yes because any infringement, if any, would be by to the publisher not you.
Hello, thanks for taking the time to consider and reply, I appreciate it.
You can infringe copyright by selling, whether the image is published or not. That said I'm not sure in this case whether an infringement has occurred anyway, it is probably fair use.
Invoice Marvel for your time spent promoting their character?
Seriously, I doubt you'll have any problem, or any photographer at a fun run would be in trouble.
"You can infringe copyright by selling, whether the image is published or not"
Correct but in this instance there is no infringement by the photographer and he is providing the image for editorial use only, but the publisher could still infringe the copyright/trademark if they use the image for anything other than editorial. As long as the photographer does not sign an indemnity absolving the publisher from liability for any infringement then he has nothing to worry about.
In hindsight, as Mal suggested, it's no different to me selling a picture to someone dressed as Spiderman at a fun run. It was the selling for profit I was concerned about here and the much bigger chance of it being visible to Marvel given the circulation of the magazine involved.
I have a usage license in place that dictates the photograph is for editorial use only - so that covers me - and a clause in my terms and conditions that says the client indemnifies me from any loss which arises out of or in connection with the use of the photograph - so that covers me too.
I'm happy though, as referenced above, it's the client's responsibility and they are responsible for the risk. They're going to check it out with their in-house lawyer but they don't anticipate any problems.
Cheers for your help,