Hi, Jason.
I really need your help.  A couple of years ago (before you and I worked together), I took photos with a piece of shit photographer who really manipulated a friend and I, took our six hundred dollars, and somehow talked us into doing topless photos.  I guess we just trusted him... stupid.  Anyway, he said he would never use the topless stuff on his website.  It has been months upon years and nothing has been on his website up until now.  I'm devastated, Jason.  It feels so private, and now it is for the world to see. 

The help that I need from you is simply to know my rights.  Can I do anything about this?  Please email me asap.

I asked her a few questions in reply:

Have you asked him to take the photos down?

What is the purpose of this guy's website? Is it a site where people have to pay to see your photos, is it a portfolio page for his photography business or is it some other type of business/personal web page?

Did you sign any kind of release allowing him to use the photos? (if you paid him, I hope not)

Does he have a copy of your id on file?

Are the photos artistic or sexual? Are you identifiable in the photos?

Did you ever receive your photos from this guy? XXXXX once told me he ripped you off.

As I understand it, 2257 mainly applies to photos showing a model's pubic area, so I'm not hopeful in that area. I have the feeling that the photographer is within his rights here, though he did act unethically.

What I want to know is if I am missing something. Is there anything she can do if he refuses to take down the photos?

By the way, she realizes now she made some bad choices. The point of this thread is to determine what she may be able to do, not judge her.

Jason McKendricks wrote:
Last night I received an email from a friend and a model I've worked with before. Here it is:


I asked her a few questions in reply:


As I understand it, 2257 mainly applies to photos showing a model's pubic area, so I'm not hopeful in that area. I have the feeling that the photographer is within his rights here, though he did act unethically.

What I want to know is if I am missing something. Is there anything she can do if he refuses to take down the photos?

By the way, she realizes now she made some bad choices. The point of this thread is to determine what she may be able to do, not judge her.

Bad choices in the past?  Is she now running for public office, minister at her church, schoolteacher?  Why is she now fussing about topless photos taken some time ago?  At the time of the shoot, did the photographer promise not to post them online?  Many unanswered questions here.

No, she has no recourse.  All she can do now is own up to the things she did in her past and embrace them.

JAY carreon
PHOTOGRAPHER

P.S.  If the photographer (at the time of the shoot) promised not to post them online - then he acted dishonorably, although well within his legal rights.  I always ask my models permission first before posting anything they may not want posted.

Is she now running for public office, minister at her church, schoolteacher?  Why is she now fussing about topless photos taken some time ago?

Only she can answer that.

According to her email, he did promise not to use the topless photos online. Like I wrote in the OP, he is within his rights though he acted unethically.

keithg wrote:
Negotiation --

The photographer might honor his verbal promise if approached in a not confrontational manner.. or not!

If he refuses and if she is values her privacy enough she can offer to pay the guy not to post.  It seems that money is the name of the game.  I doubt he is posting out of some perversity although without more information who knows.

keithg wrote:
Negotiation --

The photographer might honor his verbal promise if approached in a not confrontational manner.. or not!

If he refuses and if she is values her privacy enough she can offer to pay the guy not to post.  It seems that money is the name of the game.  I doubt he is posting out of some perversity although without more information who knows.

This makes good sense.  If you get someone's dander up first they are not very likely to backdown.  He may not be a complete dipstick and if approached sincerely he may relent.  If not then try a letter from an attorney.  He is within his rights from the sounds of it and probably knows it but might not feel its worth the hassle.

BlackWatch wrote:
You never mentioned her reply to whether she signed a release or whether all aspects of any contract she had with him were fulfilled.

I haven't received one yet. I will when I get it.

ward wrote:
Even if she bought the rights/photos from him...the damage is done. They're on-line.

In short, she has no "signed" release stating he would not use the photos in a public display or on-line etc. Therefore, she has no recourse. Caveat Emptor - Buyer Beware.

I can verbally promise to buy your car. But if I don't pay you a red cent, there's nothing legally you can do about it. A verbal statement means nothing in law.

You are ignoring two important items here Ward. She hasn't answered the question of whether or not she signed a release. If she didn't, she may have recourse. The second is she paid him, not the other way around. She in essence bought the rights to the photos. The norm here in the States is for a (legitimate)  photographer to only use a few of the best shots for self promotion on a paid shoot, and then only with specific permission if there is any nudity etc. That is usually writen into the sales contract, if there was one. She may or may not have some recourse, based on the answers to the questions the OP asked her.

Wade Henderson wrote:

You are ignoring two important items here Ward. She hasn't answered the question of whether or not she signed a release. If she didn't, she may have recourse. The second is she paid him, not the other way around. She in essence bought the rights to the photos. The norm here in the States is for a (legitimate)  photographer to only use a few of the best shots for self promotion on a paid shoot, and then only with specific permission if there is any nudity etc. That is usually writen into the sales contract, if there was one. She may or may not have some recourse, based on the answers to the questions the OP asked her.

Granted, if there is a release, and if it's specific as to what uses the images may or may not be used for. Second, even is she paid him, as she has stated, then she still requires some sort of release noting the "useage/non-useage" of the images. I know when a client hires me, the release is clear as to whether they have purchased from me "full" useage of the images, or a "one-time" only useage. Therefore, I guess we need to see what the rest of the story is on this as it pertains to the release form and it's conditions.

ward wrote:
In short, she has no "signed" release stating he would not use the photos in a public display or on-line etc. Therefore, she has no recourse. Caveat Emptor - Buyer Beware.

ward wrote:

Granted, if there is a release, and if it's specific as to what uses the images may or may not be used for. Second, even is she paid him, as she has stated, then she still requires some sort of release noting the "useage/non-useage" of the images. I know when a client hires me, the release is clear as to whether they have purchased from me "full" useage of the images, or a "one-time" only useage. Therefore, I guess we need to see what the rest of the story is on this as it pertains to the release form and it's conditions.

That's what I'm thinking. As an aside though, I understood Canadian copyright law said basically "whoever pays for the job owns the copyright." Is that correct or am I misunderstanding the jist of it?

Dawn Winter wrote:
If I pay a photographer, I don't expect him to use the images without my written permission. They're solely for my private and personal use, not his, that's why I would pay him.

Fortunately,  what you think and what the law says are two different things

Dawn Winter wrote:
If I pay a photographer, I don't expect him to use the images without my written permission. They're solely for my private and personal use, not his, that's why I would pay him.

bang bang photo wrote:
You're completely wrong. In many states, she doesn't need a "'signed' release stating he would not use the photos in a public display or on-line etc."

Just the opposite -- in many states, under right to publicity laws, HE needs a signed release from the model giving him permission to publish or use the images to promote a business, service, or product. She very well may have recourse, depending on where he put them, and what kind of site it is.

I cannot believe how many photographers are miseducated about this. In most states, there is NO right to use someone's picture for self-promotion or other commercial activity without their permission, regardless of who took the picture, or who paid who. Yes, there are exceptions to the rule -- editorial usage, for example, and in some states, artistic display (some with strict limitations) is allowed. But just because you own the copyright to the image does NOT mean you have a right to commercially exploit someone's picture. There are two sets of laws here to consider, in tension.

You guys really need to do some reading.

Paul

You said it much better than I did, but that's what I was trying to get across.

Wade Henderson wrote:
She hasn't answered the question of whether or not she signed a release. If she didn't, she may have recourse. The second is she paid him, not the other way around. She in essence bought the rights to the photos. The norm here in the States is for a (legitimate)  photographer to only use a few of the best shots for self promotion on a paid shoot, and then only with specific permission if there is any nudity etc.

It doesn't matter if she paid him or he paid her or if they danced around a maypole to "seal the deal". The photographer still owns the copyrights and CAN use any of the photos for self-promotion, which includes posting them on his website. It gets a little cloudy if the website is a pay-site, but that can go either way, pending a court decision. He can also make "fine-art" prints and sell them (or at least a limited "fine-art" edition).

The best way to avoid stuff like this is to not take your top off in the first place. I know this is hindsight, but models have to realize what they do today (or in this case, yesterday) is done. It can't be undone and they must live with their decisions.

Vito wrote:
Fortunately,  what you think and what the law says are two different things

Jason McKendricks wrote:
Only she can answer that.

According to her email, he did promise not to use the topless photos online. Like I wrote in the OP, he is within his rights though he acted unethically.

If you acknowledge he was within his rights then what's the point of this thread? If she signed a release, there's nothing she can do but suck it up and not do it again, or shell out some cash and pay him for the rights to the photos.

bang bang photo wrote:
Really? I would disagree. Yes, there are some uses he might be able to make, lacking a written agrement to the contrary. But in many, if not most states, if he uses a client's image, without permission, to promote his business or products, he is violating the model's right to publicity.

Really. If a model pays me to shoot her, (and this is a common practice and IS NOT "work-for-hire", that's a completely different situation), I (the photographer) still own the copyright and can use the images for self-promotion as well as editorial and some artistic endevours such as shows and limited prints.

bang bang photo wrote:
You're completely wrong. In many states, she doesn't need a "'signed' release stating he would not use the photos in a public display or on-line etc."

Just the opposite -- in many states, under right to publicity laws, HE needs a signed release from the model giving him permission to publish or use the images to promote a business, service, or product. She very well may have recourse, depending on where he put them, and what kind of site it is.

I cannot believe how many photographers are miseducated about this. In most states, there is NO right to use someone's picture for self-promotion or other commercial activity without their permission, regardless of who took the picture, or who paid who. Yes, there are exceptions to the rule -- editorial usage, for example, and in some states, artistic display (some with strict limitations) is allowed. But just because you own the copyright to the image does NOT mean you have a right to commercially exploit someone's picture. There are two sets of laws here to consider, in tension.

You guys really need to do some reading.

Paul

Perhaps you are right as per the letter of the law.  But in practice, things tend to be handled differently.  Two years ago, an agent from a modeling agency TOLD me to take down the pics I had taken of one of his models (these were taken before she had ever signed with his agency) in response to which I did . . . nothing!  The images are still on my online portfolio.

JAY carreon
PHOTOGRAPHER

Kaitlin Lara wrote:

If you acknowledge he was within his rights then what's the point of this thread? If she signed a release, there's nothing she can do but suck it up and not do it again, or shell out some cash and pay him for the rights to the photos.

JAY carreon wrote:
Perhaps you are right as per the letter of the law.  But in practice, things tend to be handled differently.  Two years ago, an agent from a modeling agency TOLD me to take down the pics I had taken of one of his models (these were taken before she had ever signed with his agency) in response to which I did . . . nothing!  The images are still on my online portfolio.

JAY carreon
PHOTOGRAPHER

bang bang photo wrote:
I think at this point -- the point of the thread is to discover the following facts:

1. Was there a release?
2. If so, what was in it?
3. Was there an agreement not to use the topless images? Was it verbal? Email? Written?
4. Is the photographer a nice guy who will take down the images if asked politely, or will some sort of illegal or legal arm-twisting be required?

The correct answer to the OP's question will range from, "you're fucked, better luck next time," to "you can probably make him stop, and you won't even have to break the law to do it."

Until we have the answers to those questions, it's all speculation.

But of course...but the way everything's been phrased, it really sounds like there's a release. If there were an agreement not to use a certain type of shot, I don't see why anyone would need to ask us about it. You go find a lawyer and take it from there.

Vito wrote:
Really. If a model pays me to shoot her, (and this is a common practice and IS NOT "work-for-hire", that's a completely different situation), I (the photographer) still own the copyright and can use the images for self-promotion as well as editorial and some artistic endevours such as shows and limited prints.

bang bang photo wrote:
That's a reasonable expectation. However, I would add that disagreements often arise from misunderstandings - some honest, some not. Regardless of who pays who, it is always best for the photographer to obtain a written release for any uses he anticipates making, and for the model to receive a usage agreement or license granting her the rights to use the images for any usage she anticipates.

If these two things exist -- a good model release, and a good usage license, an awful lot of these unfortunate misunderstandings and disagreements would go away.

Example: last week, I did a headshot session for an actor. It was a paid session, and I had no plans to use the images myself. However, the makeup artist asked if she could have a few prints for her portfolio. Based on this request, I asked the actor if that usage would be OK, and then got a release from him. I then gave a usage license to the MUA granting her rights to use the images for self-promotion. Now, everybody understands what's going on, and there is less chance of disagreement later.

Regards,
Paul

Well fortunately I have my own releases for that, to avoid exactly what she's going through.
Also it helps to not take pictures, destroy or buy the negs of that you wouldn't want anyone to see. Just makes better sense.

bang bang photo wrote:
Vito -- Copyright and right to publicity law are two different types of law. I suggest you read up on right to publicity law.

I think you may be confused by a New York law that says that you have the right to display a work on your studio premises without obtaining permission of the individuals pictured in the work. However, I think it's a stretch to suggest that "studio premises" extends to publishing work on the internet.

Regardless, I agree that many photographers get away with it most of the time. My point is, if this happens in a state with strong right to publicity law, and the photographer encounters a determined subject, he's gonna lose.

One thing I HOPE we can all agree on -- in this increasingly legal-minded world, a responsible professional photographer should always obtain releases for any uses he contemplates, and he should give his clients usage licenses for any uses he wishes to grant. If we just did this, our relationships with models and clients would be a lot smoother. Not perfect, but better.

Regards,
Paul

The internet posting is self-promotion, not publishing. This has been discussed ad-infinitum on MM. At one time in the dark ages (early 1990's), it was believed that anything posted on the internet was considered being published. It was ruled wrong. Without a release, a photo can be posted on a website as promotional. The sticky area here is if the website is a pay site.

Dawn Winter wrote:
Well fortunately I have my own releases for that, to avoid exactly what she's going through.
Also it helps to not take pictures, destroy or buy the negs of that you wouldn't want anyone to see. Just makes better sense.

Just curious (really, not being confrontational), but how many photographer sign "your" release as opposed to using their own?

More important, what's "different" about yours than a standard photographers' (not that anything about this stuff is standard) release?

Vito wrote:
The internet posting is self-promotion, not publishing. This has been discussed ad-infinitum on MM. At one time in the dark ages (early 1990's), it was believed that anything posted on the internet was considered being published. It was ruled wrong. Without a release, a photo can be posted on a website as promotional. The sticky area here is if the website is a pay site.

Vito wrote:

Just curious (really, not being confrontational), but how many photographer sign "your" release as opposed to using their own?

More important, what's "different" about yours than a standard photographers' (not that anything about this stuff is standard) release?

You ask because you have me tagged as a brainless model because I didn't write a book for an answer, and yet you're curious to know how is it that i'm able to protect myself, right?

To give you the gist of it, for shoots that I pay for it states "yadda yadda yadda such said images cannot be used in any form or fashion without the expressed written conscent of Dawn Winter and/or Urban Starr ENT. Yadda yadda yadda..."

I take it now you're going to try and argue me down about this? "Oh the verbalage is wrong, no photographer worth his salt would sign that, yadda, yadda, yadda" ? Help yourself, i've already won a case where my image was illegally used on a flier from a shoot that I paid for, had the release signed, and the photographer used the image anyway, thinking I wouldn't find out. The judge read the release, asked the photographer if that was his handwriting, he tried to lie, got caught, the judge then promptly granted me my judgement.

Experience is a great teacher and works great for examples.

Vito wrote:
Again, posting photos on the internet (on a website) is NOT publishing. Self promotion is allowed by fair-use laws. It is not advertising nor soliciting.

CA law cannot over-ride basic copyright law.

CA Law wrote:
(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services,....

The services they mean are not the services of the photographer. They mean if used to advertise for example, the services of a doctor or lawyer or hooker. In other words, I took the photo. Without a release, I cannot use/sell the photo to a doctor who is advertising in a magazine or billboard for his services.

All the other ("soliciting purchases of products, merchandise, goods") would not apply to a web-based "portfolio" for self-promotion.

Susi wrote:
A model should never let someone take photos that she wouldn't be comfortable being posted...on the internet or a billboard or a book or anywhere.  Seems stupid to me that a model would let the pictures be taken and then complain.  If you let it be captured on film and video you can expect to see it at some point down the road.  That's why I tell all potential boyfriends that they might have trouble if they wanted to run for political office and were dating me:-)

TWIWGTS

Dawn Winter wrote:
You ask because you have me tagged as a brainless model because I didn't write a book for an answer, and yet you're curious to know how is it that i'm able to protect myself, right?

To give you the gist of it, for shoots that I pay for it states "yadda yadda yadda such said images cannot be used in any form or fashion without the expressed written conscent of Dawn Winter and/or Urban Starr ENT. Yadda yadda yadda..."

I take it now you're going to try and argue me down about this? "Oh the verbalage is wrong, no photographer worth his salt would sign that, yadda, yadda, yadda" ? Help yourself, i've already won a case where my image was illegally used on a flier from a shoot that I paid for, had the release signed, and the photographer used the image anyway, thinking I wouldn't find out. The judge read the release, asked the photographer if that was his handwriting, he tried to lie, got caught, the judge then promptly granted me my judgement.

Experience is a great teacher and works great for examples.

No. I asked because a lot of models say they have their own releases on MM and most photographers on MM say they would never sign a model-written release. The reason being is that they (or someone they copied their release from) paid a lot of money for an IP lawyer to create a release that covers their butts. I made no judgment on you or your release.