Dawn Winter wrote:
[
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..."

What I don't understand is that the release IS the "expressed written consent of Dawn Winter and/or Urban Starr.....". How did he lose?

Vito wrote:
I believe when they say

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.

bang bang photo wrote:
Uh, OK. Please show just one citation that suggest that Copyright trumps state right to publicity law. And that Copyright fair-use law has anything to do with right to publicity and the need to obtain permission to use someone's likeness for promotion of a product, service, or business.

I think you're not just wrong, but you're dangerously wrong.

I'm not a lawyer, nor do I go searching Lexus-Nexus for case law/citation. But I have never heard of anyone (even in CA) have LOST in a court for having photos (unreleased) on their website FOR SELF-PROMOTION. I am not including pay sites or sites that are selling the photos themselves. If that ever happened, it would be big news in the photographic community and it would have eventually trickled down here to MM. Do you know of any?

Vito wrote:

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 a IP lawyer to create that covers their butts. I made no judgment on you or your release.

Just making sure we're clear on the subject.
Now since that incident, i've paid 3 different photographers for shoots because i'm working on something for 07 and none of them had a problem with my release. They're providing a service for me, not vice versa. Those that want to be finnicky over me retaining my rights just lose a good paying customer. Nothing personal, just business.

Vito wrote:

What I don't understand is that the release IS the "expressed written consent of Dawn Winter and/or Urban Starr.....". How did he lose?

Urban Starr is the name of my company.

Dawn Winter wrote:
Just making sure we're clear on the subject.
Now since that incident, i've paid 3 different photographers for shoots because i'm working on something for 07 and none of them had a problem with my release. They're providing a service for me, not vice versa. Those that want to be finnicky over me retaining my rights just lose a good paying customer. Nothing personal, just business.

Cool. You're paying the photographer. I'll assume that the release you're signing specifies that the photographs are intended for a specific project and publishing them outside of that project would dilute the value of the project so that is a good enough reason for your own release.


But on the other hand, if every model that went to those photographers (and they weren't paying the photographer) brought their own release, their "cooperation" in signing the other models releases would halt.

Vito wrote:
I'm not a lawyer, nor do I go searching Lexus-Nexus for case law/citation. But I have never heard of anyone (even in CA) have LOST in a court for having photos (unreleased) on their website FOR SELF-PROMOTION. I am not including pay sites or sites that are selling the photos themselves. If that ever happened, it would be big news in the photographic community and it would have eventually trickled down here to MM. Do you know of any?

Vito wrote:
But on the other hand, if every model that went to those photographers (and they weren't paying the photographer) brought their own release, their "cooperation" in signing the other models releases would halt.

Again, not everyone conducts good business. TFP is mostly for testing, fun and games and to help  build a portfolio with little to no cost. Once you introduce money, the dynamics change.

Brendan Barry wrote:
Use honey, not lawyers.

What, no bricks?

j/k

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:-)

Hey! I'm not planning to run for political office, can we date?

Seriously, I always tell new models

NEVER let a photographer intimidate you,

NEVER do something you are not comfortable with

NEVER do something you will regret later.

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:-)

Yeah, but you're hot and everyone knows guys don't actually listen to anything hot girls say.  They're too distracted. 

Texas has recognized a common law right of publicity (labeled "privacy") for living persons. Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. Civ. App. 1975); Henley v. Dillard Dep't Stores, 46 F. Supp.2d 587 (N.D. Tex. 1999). To prove a cause of action, a plaintiff must show (1) that his or her personal identity has been appropriated (2) by the defendant (3) for some advantage, usually of a commercial nature, to the defendant. Nat'l Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533 (W.D. Tex. 1980).

That is very broad language.  "For some advantage" covers pretty much any use at all short of philanthropy, and the word "publish" does not appear in the definition.  Consequently I take a very conservative view that pictures I use for any purpose require a release.

If I lived in North Dakota, however, I would take a very different position, since that state has neither a statutory nor common law right of privacy nor publicity.

As I have said over and over again, any general discussion of this issue is dependent on state law, and no statment made about any particular situation in one state applies to any other situation in another state.

bang bang photo wrote:
Hey, I'm not a lawyer either. I think the reason there is no case law is simple -- first, as you know, taking a case like this to court would run you around $10K -- most people don't have that kind of cash, so it never goes to court.

Secondly, tons of cases get settled without ever going to court. I personally know of many cases like this one where an injured party has gone to a website's ISP with a claim of copyright or right-to-publicity infringement, and the ISP has immediately shut down the site until the photo was removed.

To me the bottom line is -- if you read a bit, you'll find a heightened level of activity surrounding right to publicity law. I think the days of "just put it up and call it self-promotion" are nearly over.

You see it everywhere -- even wedding venues now have contract clauses that forbid usage of the images without their written permission. It's a changing world, and what used to be acceptable business practice is changing. To me, the only way to deal with this new situation is to get releases. Others disagree. So be it.

I'll bet most of those were MySpace type sites where the photo there was not representing the model but where the user says the person in the photo was them. Or where a third person, without the permission of the model or photographer posted the photos as their own.

TXPhotog wrote:
Now that I'm in Texas, I am concerned with what the laws of this state say.  There is no relevant statute for living models, but common law does deal with the issue.


That is very broad language.  "For some advantage" covers pretty much any use at all short of philanthropy, and the word "publish" does not appear in the definition.  Consequently I take a very conservative view that pictures I use for any purpose require a release.

If I lived in North Dakota, however, I would take a very different position, since that state has neither a statutory nor common law right of privacy nor publicity.

As I have said over and over again, any general discussion of this issue is dependent on state law, and no statment made about any particular situation in one state applies to any other situation in another state.

And all three of those were against corporations that (most likely) used the photos to advertise their goods (Coke, Dillards & Shaklee). That is COMMERCIAL use. This would not pertain to self-promotion by the photographer of his photographs.

Vito wrote:
CA law cannot over-ride basic copyright law.

www.law.cornell.edu/copyright/cases/201_F3d_654.htm

bang bang photo wrote:
Right - there's always two issues -- what the letter of the law requires -- and what you can get away with. The problem is, an awful lot of people hear the "what you can get away with" stuff, and assume that it's their legal right. That can lead to unpleasant surprises.

In this case, if there is no model release, and this took place in California, I'm betting the model will win this one, and all she'll have to do is have a lawyer send a letter. But then -- it's true -- I'm just a photographer, not a lawyer -- and even lawyers disagree about these things from time to time.

The other thing I will say -- I think a lot of photographers are unaware of the recent creeping progress of right to publicity law. "The way I've always done it" is based on a world where right to publicity wasn't as evolved as it it today. So a lot of old farts who have been in the business forever are assuming that just because they've always gotten away with something, they always well. Which in this particular case, is a mistake. Intellectual property is about the only thing left that we actually make in America, and it's increasingly protected by law and precedent -- sometimes helping us photographers, sometimes hurting us.

Regards,
Paul

Yep.  This's why I'm always on the "get a release" side in those arguments.  I HAVE faced BS legal issues and the attorneys I used warned me about the possibilities of real ones so I've developed a CYA attitude. If I can face as much trouble as I have when I haven't done anything wrong, I hate to think how it might be if some law says I HAVE.
And times do change, so protection is always best.

Vito wrote:
And all three of those were against corporations that (most likely) used the photos to advertise their goods (Coke, Dillards & Shaklee). That is COMMERCIAL use. This would not pertain to self-promotion by the photographer of his photographs.

What part of "for some advantage" didn't you understand? 

Whether the defendant is an individual, a sole proprietorship business (like a photographer) or a corporation doesn't make any difference.  Photos are products, just as Shaklee products are.

Vito wrote:
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 a IP lawyer to create that covers their butts. I made no judgment on you or your release.

Dawn Winter wrote:
Just making sure we're clear on the subject.
Now since that incident, i've paid 3 different photographers for shoots because i'm working on something for 07 and none of them had a problem with my release. They're providing a service for me, not vice versa. Those that want to be finnicky over me retaining my rights just lose a good paying customer. Nothing personal, just business.

I think what makes a difference here too is that you're paying the photographers.  If a model is paying ME I will certainly sign over rights or restrict my rights to use the photos.  The issue is when models want us to pay THEM or want TFP and then want us to sign all the rights away.

TXPhotog wrote:
Now that I'm in Texas, I am concerned with what the laws of this state say.  There is no relevant statute for living models, but common law does deal with the issue.


That is very broad language.  "For some advantage" covers pretty much any use at all short of philanthropy, and the word "publish" does not appear in the definition.  Consequently I take a very conservative view that pictures I use for any purpose require a release.

If I lived in North Dakota, however, I would take a very different position, since that state has neither a statutory nor common law right of privacy nor publicity.

As I have said over and over again, any general discussion of this issue is dependent on state law, and no statment made about any particular situation in one state applies to any other situation in another state.

Tx, my concern would be that with posting on the net the laws are still evolving about where you can be charged.  Largely thanks to the feds pursuing porn, case law is being established that will allow prosecution or civil suit outside the area where you reside or where your page is hosted.
So if you shoot a Cali model and put it on the net and she bring suit there you might end up fighting Cali law even if you're elsewhere.
Not saying it WILL happen or that you'd lose, but it MIGHT and fighting it would suck.

Brendan Barry wrote:
I never understand this sort of thing. I shoot enough that if a model doesn't want me to use some photos of her, I'll just go shoot another model. What's the big deal?

See if the guy will listen to reason, nicely, over coffee. If she signed a release, then there isn't much, legally, she can do. Appeal to his good side then.

Use honey, not lawyers.

SLE Photography wrote:
Tx, my concern would be that with posting on the net the laws are still evolving about where you can be charged.  Largely thanks to the feds pursuing porn, case law is being established that will allow prosecution or civil suit outside the area where you reside or where your page is hosted.
So if you shoot a Cali model and put it on the net and she bring suit there you might end up fighting Cali law even if you're elsewhere.
Not saying it WILL happen or that you'd lose, but it MIGHT and fighting it would suck.

There is a difference between criminal prosecution in Federal court and civil litigation in state court.  To sue me in California for violation of California law, the court would have to have personal jurisdiction over me.  That's not impossible, and your concern is not trivial, but I'm not terribly concerned about it - especially since I think the requirements of Texas law are at least as stringent as those of California on the need for a release.

I'd like to point out one small snippet from the case involving Texas and misappropriation of likeness that I linked to above:

To prove a cause of action for misappropriation, a plaintiff must show that his or her personal identity has been appropriated by the defendant for some advantage, usually of a commercial nature, to the defendant.'" Moore v. Big Picture Co., 828 F.2d 270, 275 (5th Cir. 1987) (quoting National Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533, 540 (W.D.Tex. 1980)). Furthermore, plaintiffs in misappropriation of name or likeness actions are not required to show that the defendant made money from the commercial use of the name or likeness. See Henley v. Dillard Dep't Stores, 46 F. Supp.2d 587, 597 (N.D.Tex. 1999).

Someone else can argue all they want about how they can go ahead and publish a person's image "for self promotion" without a release, but I'm going to assume that the court meant exactly what it said above, and take a much more conservative view.

TXPhotog wrote:

SLE Photography wrote:
Tx, my concern would be that with posting on the net the laws are still evolving about where you can be charged.  Largely thanks to the feds pursuing porn, case law is being established that will allow prosecution or civil suit outside the area where you reside or where your page is hosted.
So if you shoot a Cali model and put it on the net and she bring suit there you might end up fighting Cali law even if you're elsewhere.
Not saying it WILL happen or that you'd lose, but it MIGHT and fighting it would suck.

There is a difference between criminal prosecution in Federal court and civil litigation in state court.  To sue me in California for violation of California law, the court would have to have personal jurisdiction over me.  That's not impossible, and your concern is not trivial, but I'm not terribly concerned about it - especially since I think the requirements of Texas law are at least as stringent as those of California on the need for a release.

I'd like to point out one small snippet from the case involving Texas and misappropriation of likeness that I linked to above:


Someone else can argue all they want about how they can go ahead and publish a person's image "for self promotion" without a release, but I'm going to assume that the court meant exactly what it said above, and take a much more conservative view.

Vito wrote:
If posting anything on the internet is publishing, then please refrain from "quoting" anything I may say/type/write, as it is copy written and may not be used without permission. It is a published work and is protected by any governing laws.

Isn't that ridiculous?
What you post on the internet IS NOT PUBLISHING!

Uh-oh. Tom Clancy just demanded I remove that last line because he used it in a book he wrote and it is copywritten.

Vito wrote:
Again, posting a photo on the internet IS NOT publishing.

As for the Coke/Shaklee/other one, the photo was used as an advertisement to buy Coke or eat(?) at Shaklee.

You can't be comparing those uses (commercial) with self-promotion? I hope not.

Vito wrote:
If posting anything on the internet is publishing, then please refrain from "quoting" anything I may say/type/write, as it is copy written and may not be used without permission. It is a published work and is protected by any governing laws.

Isn't that ridiculous?
What you post on the internet IS NOT PUBLISHING!

TXPhotog wrote:
There is a difference between criminal prosecution in Federal court and civil litigation in state court.  To sue me in California for violation of California law, the court would have to have personal jurisdiction over me.  That's not impossible, and your concern is not trivial, but I'm not terribly concerned about it - especially since I think the requirements of Texas law are at least as stringent as those of California on the need for a release.
Someone else can argue all they want about how they can go ahead and publish a person's image "for self promotion" without a release, but I'm going to assume that the court meant exactly what it said above, and take a much more conservative view.

Oh, I agree with you.  But I've seen a couple of completely basless legal actions, including one where the model lied to an attorney about me having releases (I did & she said I didn't) in order to start proceedings and it STILL cost me $2k to fight it.
That's why I like to have comprehensive releases just to be safe!

Vito wrote:
If posting anything on the internet is publishing, then please refrain from "quoting" anything I may say/type/write, as it is copy written and may not be used without permission. It is a published work and is protected by any governing laws.

Isn't that ridiculous?
What you post on the internet IS NOT PUBLISHING!

You keep saying that.  The trouble is, it's not true for the purposes under discussion.

Yes, for the purpose of registering a copyright, it is true that the Copyright Office has accepted the position that putting pictures on the Internet is not "publishing" within the definition established by Title 17.  (Actually, they don't say it isn't publishing, just that they don't take a position on it, and will allow pictures which have been put on the 'net to be registered as "unpublished".)

So what?

We are not discussing copyright here, we are discussing state laws of privacy and publicity.  Many of those state laws do not use the term "publish" at all, so it doesn't matter what the definition is.  And of those which do, the term "publish" under those laws has a very different meaning from the limited definitions in Title 17, which apply to actions taken under Title 17 only.

Consequently, whether putting an image on the web is "publishing" or not is immaterial to the issue.

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.

My lawyer says you're wrong. Where, pray tell, did you receive your law degree?

Vito wrote:
If posting anything on the internet is publishing, then please refrain from "quoting" anything I may say/type/write, as it is copy written and may not be used without permission. It is a published work and is protected by any governing laws.

Isn't that ridiculous?
What you post on the internet IS NOT PUBLISHING!

So... if I put something on the Internet it's not covered by U.S. copyright law because it's not published? A work does not need to be published to be protected by copyright law, and uploading work to the Internet does not magically make it free. And yeah, anything original you write is protected under copyright law, as are any photos you take, music you write, poems you write, etc. And no, this isn't ridiculous.

  There are several things being discussed here and actually copyright doesn't really apply to the question at hand. Whether or not the photographer legally owns the copyright to the images of the model isn't in question -- he does own the copyright. What is being asked is whether or not he has the right to use the images the model paid for to promote his business. And in order to answer that we really need more info -- such as did the model sign a release and what did the release cover? If she signed a release then I agree -- there's really nothing she can do legally. She can ask the photographer to remove the images in question but he's under no legal obligation to do so. If she didn't sign a release then he probably needs to remove the images depending on applicable state law.

  So... send us more info!

  -P-

Awesome Photos wrote:
I agree with Vito on this issue. When you take someones photo, you are creating a likeness of that person. YOU are the creator, hence you are the owner of your own creation. You only transfer a duplicate of your creation (a print or CD...etc.) to your client and you still keep your own creation (the original) with you.

So how do you reconcile your position with this from the CA code?

"3344. Use of Another's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.

(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, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.

(b) As used in this section, "photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable."

I think you are making the same mistake Vito is -- looking only at Copyright issues -- forgetting that you also have to consider right to publicity issues. Your copyright ownership of the image has nothing to do with the rights of the subject of your photograph to control their own publicity.

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.

Doesn't matter if you paid the photographer or not...the photographer always retains rights to the photos he shoots and can legally use them at any time for promotion of his business. He/she just can't use them in a commercial sense (selling).

The only chance this would be different is if you also wrote up a contract asking him to relinquish all rights to you and you purchase the negs or the rights...and honestly, good luck finding a photographer (a legit one) to do that.