Forums > General Industry > Does this model have any recourse?

Photographer

Awesome Photos

Posts: 208

Santa Maria, California, US

Ashley Barrett Photo wrote:

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.

Dec 27 06 12:44 pm Link

Photographer

Pat Thielen

Posts: 16800

Hastings, Minnesota, US

It is my opinion that we, as photographers, really need to educate ourselves on copyright law and the individual state laws that directly affect our business.

  Just sayin'...

Dec 27 06 12:44 pm Link

Photographer

Sophistocles

Posts: 21320

Seattle, Washington, US

Ashley Barrett Photo wrote:
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.

I can't think of a single photographer who would not do that ... for the right price.

Dec 27 06 12:44 pm Link

Photographer

Analog Nomad

Posts: 4097

Pattaya, Central, Thailand

Ashley Barrett Photo wrote:
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).

Again. 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.

In addition, I don't think you have explained what the difference is between what you characterize as "self-promotion," and what CA law characterizes as, "soliciting purchases of products, merchandise, goods or services." Perhaps you can explain the difference?

Paul

Dec 27 06 12:46 pm Link

Photographer

Star

Posts: 17966

Los Angeles, California, US

I have always believed that verbal contracts matter.

A lawsuit would waste his time enough that he would probably remove the images if served,

Star

Dec 27 06 12:50 pm Link

Photographer

Awesome Photos

Posts: 208

Santa Maria, California, US

Bang bang,

Thank you for your question. The law that you have stated says that you can not put an image IN or ON a product for commercial use (meaning selling the photo and/or the product with the photo on it or in it).

What kind of a product did this photographer put the photo "in" or "on" for selling and how much is he selling it for?

Dec 27 06 12:58 pm Link

Photographer

Pat Thielen

Posts: 16800

Hastings, Minnesota, US

Awesome Photos wrote:
Bang bang,

Thank you for your question. The law that you have stated says that you can not put an image IN or ON a product for commercial use (meaning selling the photo and/or the product with the photo on it or in it).

What kind of a product did this photographer put the photo "in" or "on" for selling and how much is he selling it for?

It's all in the bold text. Check it out... Specifically the "goods or services" part.

Dec 27 06 01:02 pm Link

Photographer

Analog Nomad

Posts: 4097

Pattaya, Central, Thailand

You missed part of the law. Read on to where it says, ". . . or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent. . . "

That little word "or" has big meaning. My understanding then, is that if he uses the images on a site to advertise his business, or solicit purchases of his photographic services, he has broken the law. I just don't see any other way to read it, do you?

What is "self-promotion," if not soliciting purchase of your goods or services?

Regards,
Paul

Awesome Photos wrote:
Bang bang,

Thank you for your question. The law that you have stated says that you can not put an image IN or ON a product for commercial use (meaning selling the photo and/or the product with the photo on it or in it).

What kind of a product did this photographer put the photo "in" or "on" for selling and how much is he selling it for?

Dec 27 06 01:02 pm Link

Photographer

Alluring Exposures

Posts: 11400

Casa Grande, Arizona, US

I discuss things with the model before I shoot, and I have the following in my model release, which the model would then pick one and initial;

Model requests that all images that reveal;
A; __ the areolas/nipples and/or __ any part of the pubic area not be used for any reason or under any circumstance in any media, and further asks that it be destroyed.
B; __ the areolas/nipples and/or __ any part of the pubic areabe reserved strictly for use on print portfolio, and never online or in any publication without prior written consent.
C; __ the areolas/nipples and/or __ any part of the pubic area be treated as part of the shoot and included in all use agreed to in this release.

This ensures a model willing to do implied that if there are any slips, the images revealing too much won't see the light of day, and the models willing to do nudes but who don't want them circulating uncontroled in the internet can do so with complete peace of mind.
I'm surprised other photographers don't have similar clauses for the sake of the models they work with.

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:-)

Dec 27 06 01:29 pm Link

Photographer

StMarc

Posts: 2959

Chicago, Illinois, US

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.

No, it can't, which is fortunate, because the right of publicity laws don't have *anything to do* with copyright law or the overriding thereof.

Fair-use is an *affirmative defense to a charge of copyright infringement.* That's it, that's all. It grants no affirmative rights whatsoever. It is not a defense to misappropriation of likeness. The First Amendment might override some right of publicity laws in some instances, but the copyright law does not.

M

Dec 27 06 01:55 pm Link

Photographer

StMarc

Posts: 2959

Chicago, Illinois, US

bang bang photo wrote:
Vito -- so far, you have refused to answer any of my questions. Please explain to me, under what legal theory, you think that a photographer's self-promotion is exempt from laws regulating business use of someone's image, name, or likeness?

Dunno about him, but IL's RoP law specifically reverses the requirement for photographers. Photographers may display their images in certain circumstances unless and until the subject asks them to stop. They must immediately do so, but would not be liable for damages prior to that time.

M

Dec 27 06 01:59 pm Link

Photographer

Analog Nomad

Posts: 4097

Pattaya, Central, Thailand

That's pretty cool of IL -- do you know if any other states have similar exemptions?

StMarc wrote:

Dunno about him, but IL's RoP law specifically reverses the requirement for photographers. Photographers may display their images in certain circumstances unless and until the subject asks them to stop. They must immediately do so, but would not be liable for damages prior to that time.

M

Dec 27 06 02:01 pm Link

Photographer

Analog Nomad

Posts: 4097

Pattaya, Central, Thailand

OK -- found the IL statute:
"(5) use of photographs, videotapes, and images by a person, firm, or corporation practicing the
profession of photography ("professional photographer") to exhibit in or about the professional
photographer's place of business or portfolio, specimens of the professional photographer's
work, unless the exhibition is continued by the professional photographer after written notice
objecting to the exhibition has been given by the individual portrayed."

So -- to me, there is some ambiguity about how broad this exemption is -- "exhibit in or about the professional photographer's place of business or portfolio." As a layman, I would interpret this literally to mean the studio premises. Are you interpreting this more broadly, to encompass posting on the internet, and if so, how do you get there?

Thanks,
Paul

StMarc wrote:

Dunno about him, but IL's RoP law specifically reverses the requirement for photographers. Photographers may display their images in certain circumstances unless and until the subject asks them to stop. They must immediately do so, but would not be liable for damages prior to that time.

M

Dec 27 06 02:12 pm Link

Model

Adieu

Posts: 6427

If she paid for the photos, doesn't she have the rights to them?

Dec 27 06 02:15 pm Link

Photographer

Emeritus

Posts: 22000

Las Vegas, Nevada, US

bang bang photo wrote:
So -- to me, there is some ambiguity about how broad this exemption is -- "exhibit in or about the professional photographer's place of business or portfolio." As a layman, I would interpret this literally to mean the studio premises. Are you interpreting this more broadly, to encompass posting on the internet, and if so, how do you get there?

I have the same question.  This has come up before about the NY and MA laws, which are similar.  I've never seen a good answer to it.  I'm assuming it means what it says, not Internet use, but don't know that it has ever been litigated in any of those states.

Dec 27 06 02:17 pm Link

Photographer

Sophistocles

Posts: 21320

Seattle, Washington, US

TXPhotog wrote:
I have the same question.  This has come up before about the NY and MA laws, which are similar.  I've never seen a good answer to it.  I'm assuming it means what it says, not Internet use, but don't know that it has ever been litigated in any of those states.

As with a lot of things regarding how the Internet is interpreted in existing laws, the absence of any case law means that we'll all argue until there is.

That's the most-common answer I get when I talk to my attorney about these things. He gives me his opinion, and then tells me that his opinion is worthless until a decision is reached by a court on the issue, so the answer to my question isn't "yes" or "no," but more often "probably" or "probably not."

Dec 27 06 02:22 pm Link

Photographer

Analog Nomad

Posts: 4097

Pattaya, Central, Thailand

Monica Jay wrote:
If she paid for the photos, doesn't she have the rights to them?

Well, the rights she has would ideally be spelled out in some kind of an agreement with the photographer.

But many people are surprised to discover that merely hiring a photograper to shoot an event does not automatically mean that the hirer owns the pictures. The photographer still retains copyright, for example, unless he specifically gives it up.

This is why, when hiring a photographer for any reason, it is important to negotiate a usage agreement that gives you, the client, whatever rights you need or expect to receive. It is best for both parties, photographer and client, to negotiate these things before a single picture is taken.

Regards,
Paul

Dec 27 06 02:23 pm Link

Photographer

Emeritus

Posts: 22000

Las Vegas, Nevada, US

Christopher Ambler wrote:
That's the most-common answer I get when I talk to my attorney about these things. He gives me his opinion, and then tells me that his opinion is worthless until a decision is reached by a court on the issue, so the answer to my question isn't "yes" or "no," but more often "probably" or "probably not."

Agreed.  But perhaps this issue has been litigated, and I'm just not aware of it.  Hence the question.

Dec 27 06 02:26 pm Link

Photographer

Wade Henderson

Posts: 1068

Myrtle Beach, South Carolina, US

Monica Jay wrote:
If she paid for the photos, doesn't she have the rights to them?

If you are talking about copyright, no she doesn't.

Dec 27 06 02:27 pm Link

Photographer

Awesome Photos

Posts: 208

Santa Maria, California, US

Here is the deal. I think this should put the issue at rest once and for all.

I will try to put a little humor in this so that we can relax and look at this with an open mind. Pardon me if It will not make you smile, but I hope it will bring new light to the subject. In addition, I applogize for any typos because I type fast and do not take the time to make corrections, since the issue here is not my typing.

Here we go:

1. The law is usually based upon reason, logic, and fairness to every one involved.

Does any one disagree with this? ...I see no hands, that is good. LOL.

2. The images we talk about can only be created with collaboration of at least two individuals--the model and the photographer. If either one is missing, there will be no image created. Right?... I see every one knoding. That is great. LOL.

3. Since they both collaborate on the creation of the image, they both have interest in it and should have pretty much equal right to it. Correct? Good. LOL.

4. The model can create a portfolio for herself. Right?....yep.

5. The model can display her portfolio to other prospective clients (photographers and agencies...etc.) for self promotion and getting a modeling job. Agree? Good.

6. The Model or any one else other than the original photographer can not duplicate those photos and use them for commercial purpose to make money on them without the photographers written consent. Otherwise, the photographer takes all the money to himself without sharing it with the model. Not fair. Right?.... Great.

7. Since the photographer has the same rights to the photos, he can create a portfolio for himself and display his portfolio to prospective customers. He has a right to the same image which he created. It is only fair. Right?... Cool.

8. The photographer can not sell the photos in any shape or form to make money off the same images without the written concent of the model. Otherwise, he is making money off the models photos without giving her her fair share of the money. Fair enough?... Good.

It will be a lopsided law if it did not allow for one party of the collaborated effort to use the photos for self promotion and not the other. Where is the reason and logic to that? Where is the "fairness" in that?

If a law like that passes, would it not be unconstitutional?

Regards.

Dec 27 06 02:32 pm Link

Photographer

T H Taylor

Posts: 6862

Milwaukee, Wisconsin, US

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.

Unfortunately, What you are paying for is time and skill...
The intellectual properties still belong to the photographer.
However, without a proper release, there's really nothing he or she can do with the images (especialy for any financial gain) without your permission.

Dec 27 06 02:40 pm Link

Photographer

Analog Nomad

Posts: 4097

Pattaya, Central, Thailand

It's all interesting -- but I don't really see the point. In dealing with the law, we're trying to understand what we must do to keep on the right side of it, and also, how to use it to our own advantage, right?

There are plenty of things in this world I would LOVE to change if I could. I'm not sure how high on the list copyright and right to publicity reform would be on my personal list of changes I would make if I could. It might make it onto the second page. . .

But seriously -- these are real issues to real people. Stupid as the situation is, it's got to be devastating to a model to see images of her nude she was confident were private, displayed on the internet for a few billion people to see. And it's almost as devastating when I find one of my photos has been stolen, or when a model I have paid for work, who signed a release, calls me up and wants me to stop using her pictures.

So -- in the face of these daily realities and dramas -- I'm just trying to understand what the rules are today, complete with all the ambiguities are confusion. I'll leave reforming the law to another day, and perhaps let somebody else do that -- I'm going to just stay a photographer, thank you very much!

Regards,
Paul

Awesome Photos wrote:
Here is the deal. I think this should put the issue at rest once and for all.

I will try to put a little humor in this so that we can relax and look at this with an open mind. Pardon me if It will not make you smile, but I hope it will bring new light to the subject. In addition, I applogize for any typos because I type fast and do not take the time to make corrections, since the issue here is not my typing.

Here we go:

1. The law is usually based upon reason, logic, and fairness to every one involved.

Does any one disagree with this? ...I see no hands, that is good. LOL.

2. The images we talk about can only be created with collaboration of at least two individuals--the model and the photographer. If either one is missing, there will be no image created. Right?... I see every one knoding. That is great. LOL.

3. Since they both collaborate on the creation of the image, they both have interest in it and should have pretty much equal right to it. Correct? Good. LOL.

4. The model can create a portfolio for herself. Right?....yep.

5. The model can display her portfolio to other prospective clients (photographers and agencies...etc.) for self promotion and getting a modeling job. Agree? Good.

6. The Model or any one else other than the original photographer can not duplicate those photos and use them for commercial purpose to make money on them without the photographers written consent. Otherwise, the photographer takes all the money to himself without sharing it with the model. Not fair. Right?.... Great.

7. Since the photographer has the same rights to the photos, he can create a portfolio for himself and display his portfolio to prospective customers. He has a right to the same image which he created. It is only fair. Right?... Cool.

8. The photographer can not sell the photos in any shape or form to make money off the same images without the written concent of the model. Otherwise, he is making money off the models photos without giving her her fair share of the money. Fair enough?... Good.

It will be a lopsided law if it did not allow for one party of the collaborated effort to use the photos for self promotion and not the other. Where is the reason and logic to that? Where is the "fairness" in that?

If a law like that passes, would it not be unconstitutional?

Regards.

Dec 27 06 02:46 pm Link

Photographer

Ed the Healer

Posts: 2384

Addison, Alabama, US

At the very least, why doesn't everyone go out and buy "Business and Legal Forms for Photographers" by Tad Crawford and hold off on posting on this topic again until you all have read and understood the book.

Dec 27 06 02:54 pm Link

Photographer

Emeritus

Posts: 22000

Las Vegas, Nevada, US

Ed Goodwin Photography wrote:
At the very least, why doesn't everyone go out and buy "Business and Legal Forms for Photographers" by Tad Crawford and hold off on posting on this topic again until you all have read and understood the book.

Let's see . . .

We have a licensed, practicing Intellectual Property lawyer participating in this thread.  Does he have to read the book to qualify?

I've read (and own) four books on the subject, plus written a number of legal briefs on the subject and won my share of court cases.  Do I have to read the book too?

There are many paths to knowledge.

Dec 27 06 02:59 pm Link

Photographer

StMarc

Posts: 2959

Chicago, Illinois, US

bang bang photo wrote:
OK -- found the IL statute:
"(5) use of photographs, videotapes, and images by a person, firm, or corporation practicing the
profession of photography ("professional photographer") to exhibit in or about the professional
photographer's place of business or portfolio, specimens of the professional photographer's
work, unless the exhibition is continued by the professional photographer after written notice
objecting to the exhibition has been given by the individual portrayed."

So -- to me, there is some ambiguity about how broad this exemption is -- "exhibit in or about the professional photographer's place of business or portfolio." As a layman, I would interpret this literally to mean the studio premises. Are you interpreting this more broadly, to encompass posting on the internet, and if so, how do you get there?

That's why I said "in certain circumstances." smile To the best of my knowledge there has been no appellate review of a case involving this statute and Internet publication by a photographer under the cited exemption. I could make an argument that a photographer's website should be considered to be part of his place of business and/or portfolio with a straight face. Neither is defined further in the statute or by case law. Whether the court would buy it (no to the first and maybe to the second would be my educated guess) I have no idea.

M

Dec 27 06 03:00 pm Link

Photographer

Emeritus

Posts: 22000

Las Vegas, Nevada, US

Awesome Photos wrote:
If a law like that passes, would it not be unconstitutional?

Yes, it might be, for three reasons:

1.  The Supreme Court has, in some cases, found a Right to Privacy in the constitution.

2.  The constitution specifically provides for copyright.

3.  The constitution also provides that domestic law is superseded by treaties, and we are a signatory to the Berne convention and other treaties involving copyright.

Dec 27 06 03:01 pm Link

Photographer

Pat Thielen

Posts: 16800

Hastings, Minnesota, US

Awesome Photos wrote:
Here is the deal. I think this should put the issue at rest once and for all.

I will try to put a little humor in this so that we can relax and look at this with an open mind. Pardon me if It will not make you smile, but I hope it will bring new light to the subject. In addition, I applogize for any typos because I type fast and do not take the time to make corrections, since the issue here is not my typing.

Here we go:

1. The law is usually based upon reason, logic, and fairness to every one involved.

Does any one disagree with this? ...I see no hands, that is good. LOL.

2. The images we talk about can only be created with collaboration of at least two individuals--the model and the photographer. If either one is missing, there will be no image created. Right?... I see every one knoding. That is great. LOL.

3. Since they both collaborate on the creation of the image, they both have interest in it and should have pretty much equal right to it. Correct? Good. LOL.

4. The model can create a portfolio for herself. Right?....yep.

5. The model can display her portfolio to other prospective clients (photographers and agencies...etc.) for self promotion and getting a modeling job. Agree? Good.

6. The Model or any one else other than the original photographer can not duplicate those photos and use them for commercial purpose to make money on them without the photographers written consent. Otherwise, the photographer takes all the money to himself without sharing it with the model. Not fair. Right?.... Great.

7. Since the photographer has the same rights to the photos, he can create a portfolio for himself and display his portfolio to prospective customers. He has a right to the same image which he created. It is only fair. Right?... Cool.

8. The photographer can not sell the photos in any shape or form to make money off the same images without the written concent of the model. Otherwise, he is making money off the models photos without giving her her fair share of the money. Fair enough?... Good.

It will be a lopsided law if it did not allow for one party of the collaborated effort to use the photos for self promotion and not the other. Where is the reason and logic to that? Where is the "fairness" in that?

If a law like that passes, would it not be unconstitutional?

Regards.

This is nice... but it's simply not the way it works. The photographer has sole copyright ownership of all photographs taken. Period. That's the law. Here's how it's supposed to work:

  1. Photographer takes photos.

  2. Photographer grants license (permission) to the client on how the images can be used commercially.

  We are arguing over what is commercial use, not about copyright law. And the law isn't necessarily fair -- that's a rather bad assumption to make. And what constitutes commercial use will vary from state to state. Therefore, a photographer will usually get a signed model release from the model that will allow him to use the images commercially or for promoting his or her business. And in return will give the model permission to use the images for specific usage.

  -P-

Dec 27 06 03:01 pm Link

Photographer

Sophistocles

Posts: 21320

Seattle, Washington, US

TXPhotog wrote:
There are many paths to knowledge.

Indeed. My attorney charges $300 an hour to give me my path to knowledge - his.

Alas, he doesn't work TFP :-)

Dec 27 06 03:02 pm Link

Photographer

Ed the Healer

Posts: 2384

Addison, Alabama, US

TXPhotog wrote:

Let's see . . .

We have a licensed, practicing Intellectual Property lawyer participating in this thread.  Does he have to read the book to qualify?

I've read (and own) four books on the subject, plus written a number of legal briefs on the subject and won my share of court cases.  Do I have to read the book too?

There are many paths to knowledge.

Sorry man, meant to say, everyone but you...my bad...big OOOPS.

Dec 27 06 03:06 pm Link

Photographer

StMarc

Posts: 2959

Chicago, Illinois, US

Awesome Photos wrote:
3. Since they both collaborate on the creation of the image, they both have interest in it and should have pretty much equal right to it. Correct? Good. LOL.

Incorrect. Bad. LOL.

Both under current law, and under a reasonable analysis, this is not necessarily so. I can think of circumstances where the model should have the lion's share, if not all, of the rights. But for the most part, since the photographer is the one who selects the "decisive moment" to capture, while models are valuable contributors to the process, they do *not* have the same artistic power over the individual image that the photographer does.

5. The model can display her portfolio to other prospective clients (photographers and agencies...etc.) for self promotion and getting a modeling job. Agree? Good.

Disagree. Bad. If she hasn't the right to display the images in her portfolio, she shouldn't do it.

6. The Model or any one else other than the original photographer can not duplicate those photos and use them for commercial purpose to make money on them without the photographers written consent. Otherwise, the photographer takes all the money to himself without sharing it with the model. Not fair. Right?.... Great.

"You keep using that expression. I wonder what your basis for comparison is."

If I paid her, then what she agreed to take is, by definition, fair. If I didn't pay her, then why did she sign the release? Also, you seem to be switching subjects in the middle of this item.

8. The photographer can not sell the photos in any shape or form to make money off the same images without the written concent of the model. Otherwise, he is making money off the models photos without giving her her fair share of the money. Fair enough?... Good.

"Fair enough" is in the eye of the beholder. It seems under your approach that if I pay the model for pictures I expect to sell, but end up not selling, that I should get my money back. That's fair, right?

It will be a lopsided law if it did not allow for one party of the collaborated effort to use the photos for self promotion and not the other. Where is the reason and logic to that? Where is the "fairness" in that?

What's unfair about allowing people to enter into agreeements freely and of their own accord? You are basically saying that models are innocent flowers who need protecting from the big bad photographers. If I were a model, I'd be offended.

If a law like that passes, would it not be unconstitutional?

No. LOL.

M

Dec 27 06 03:08 pm Link

Photographer

Analog Nomad

Posts: 4097

Pattaya, Central, Thailand

I dunno - I'm pretty happy with my position -- but always willing to learn more -- and always willing to admit I could be wrong. Did I say anything in this thread you think is incorrect?

Regards,
Paul

Ed Goodwin Photography wrote:
At the very least, why doesn't everyone go out and buy "Business and Legal Forms for Photographers" by Tad Crawford and hold off on posting on this topic again until you all have read and understood the book.

Dec 27 06 03:08 pm Link

Photographer

Brendan Barry

Posts: 157

Boston, Georgia, US

Blah (not to you, but in general). I would just take them down. I shoot enough stuff that I can just easily replace them.


bang bang photo wrote:
Yeah -- but the question is less, how MUCH you shoot, but how LONG you've been shooting. As models age, and get increasingly responsible positions with increasingly uptight companies, suddenly, all those pictures they took in their wild, misspent youth begin to look like a liability, and they'd just like to make them all go away.

My prediction is -- three or four years out, you're going to start getting the emails and phone calls asking you to take stuff down. I've had three or four, out of a couple hundred. Not bad. I expect to get more.

If they're nice about it, I just take 'em down. If they threaten and shake lawyers at me (none have done that yet) I would make them buy them back.


Dec 27 06 03:11 pm Link

Photographer

Sophistocles

Posts: 21320

Seattle, Washington, US

StMarc wrote:

No. LOL.

M

Wait a minute. Unconstitutional? I don't think this is an issue of constitutional law.

If such a law were to be passed it would surely conflict with existing law - but constitutional? Am I missing something when I posit that that is irrelevant?

Dec 27 06 03:13 pm Link

Photographer

StMarc

Posts: 2959

Chicago, Illinois, US

StMarc wrote:
No. LOL.

M

Christopher Ambler wrote:
Wait a minute. Unconstitutional? I don't think this is an issue of constitutional law.

If such a law were to be passed it would surely conflict with existing law - but constitutional? Am I missing something when I posit that that is irrelevant?

There are umbral issues (copyright, privacy) but by and large there is no real substantial Constitutional issue here.

I think the problem is that a lot of people seem to believe that the Constitution contains some sort of guarantee of fair treatment - with their own particular definition of "fair" controlling. As you know, it does not. The Constitution, while I have serious issues with it, was a great and noble experiment in jurisprudence. It was framed by wise men who knew that you could not make everything "fair" by means of law: the best you could do was level the playing field as much as possible.

M

Dec 27 06 03:17 pm Link

Photographer

Sophistocles

Posts: 21320

Seattle, Washington, US

StMarc wrote:
The Constitution, while I have serious issues with it, was a great and noble experiment in jurisprudence. It was framed by wise men who knew that you could not make everything "fair" by means of law: the best you could do was level the playing field as best you can.

Having just completed a fantastic biography of Franklin that paid a lot of attention to his contributions, I couldn't agree more.

Dec 27 06 03:20 pm Link

Photographer

Ed the Healer

Posts: 2384

Addison, Alabama, US

StMarc wrote:

That's why I said "in certain circumstances." smile To the best of my knowledge there has been no appellate review of a case involving this statute and Internet publication by a photographer under the cited exemption. I could make an argument that a photographer's website should be considered to be part of his place of business and/or portfolio with a straight face. Neither is defined further in the statute or by case law. Whether the court would buy it (no to the first and maybe to the second would be my educated guess) I have no idea.

M

OK, lemme ask you this, pro bono, of course.

Based on what the earlier poster posted, is it correct to say that the IL statute provides that the photographer may display commisisoned works in the manner specified even absent any language in his business contract with the customer addressing display of the work?  Sort of like a backstop to the contract?

And a follow-on question, if I may.  Can the photographer include language in his business contract that provides for use of the images for purposes beyond display at his place of business or in his portfolio?

Dec 27 06 03:21 pm Link

Photographer

Mickle Design Werks

Posts: 5967

Washington, District of Columbia, US

Awesome Photos wrote:
1. The law is usually based upon reason, logic, and fairness to every one involved. Does any one disagree with this? ...I see no hands, that is good. LOL.

Depends on your philosophic point of view of the law.  Ideally it would be based on  reason, logic and fairness but historically it’s not always the case (e,g. slavery, voting rights, jim crow, etc.).

I have a more cynical point of view.  The law is based on the golden rule- he who has he gold makes all the rules.  Thus the reason why a wealthy person caught with a pound of cocaine can get less prison time (if they get prison time) than a person caught with a few ounces of crack.

Awesome Photos wrote:
2. The images we talk about can only be created with collaboration of at least two individuals--the model and the photographer. If either one is missing, there will be no image created. Right?... I see every one knoding. That is great. LOL.

Agreed.

Awesome Photos wrote:
3. Since they both collaborate on the creation of the image, they both have interest in it and should have pretty much equal right to it. Correct? Good. LOL.

Nope.  The photographer makes the decision on when to press the shutter, therefore the “decisive moment” in creating the image.  This is why the copyright goes to the photographer as a default. The model has a right to privacy with respect to commercial use of the image but the mere act of sitting for the photographer implies privacy consent for personal/non-commercial or self-promotional use.

Awesome Photos wrote:
4. The model can create a portfolio for herself. Right?....yep.

Yes if given licensed  to do so by the photographer. Remember the images belong to the creator of them, which in this case is the photographer.

Awesome Photos wrote:
5. The model can display her portfolio to other prospective clients (photographers and agencies...etc.) for self promotion and getting a modeling job. Agree? Good.

Yes, again if she has been given licensed to do so by the photographer.

Awesome Photos wrote:
6. The Model or any one else other than the original photographer can not duplicate those photos and use them for commercial purpose to make money on them without the photographers written consent. Otherwise, the photographer takes all the money to himself without sharing it with the model. Not fair. Right?.... Great.

OK, I’m confused with what you are saying here. No one can duplicate the images with out expressed consent by the photographer. Also the photographer can not just sell the images. The right to privacy covers the model to certain extent.  This is why model releases are used; they specifically spell out the right and usages for the images. So if a photographer (or anyone else who “owns” the image) sells an image of a model not adequately covered by a model release then they are placing themselves at significant legal risk.  Ask Nestle about it how risky this is:

http://www.timesonline.co.uk/article/0, … 76,00.html
http://www.editorialphoto.com/resources … licity.pdf


Awesome Photos wrote:
7. Since the photographer has the same rights to the photos, he can create a portfolio for himself and display his portfolio to prospective customers. He has a right to the same image which he created. It is only fair. Right?... Cool.

Yes.

Awesome Photos wrote:
8. The photographer can not sell the photos in any shape or form to make money off the same images without the written concent of the model. Otherwise, he is making money off the models photos without giving her her fair share of the money. Fair enough?... Good.

Yes. However this hinges on how “commercial use” is defined by the local jurisdiction – and it varies from state to state.

As with the Nestle case linked above, the use was clearly commercial and Nestle paid the price for not securing a proper release (not adequately compensating the model).

Awesome Photos wrote:
It will be a lopsided law if it did not allow for one party of the collaborated effort to use the photos for self promotion and not the other. Where is the reason and logic to that? Where is the "fairness" in that?

If a law like that passes, would it not be unconstitutional?

Regards.

The responsibility for securing usage rights in on the all parties involved and should be negotiated BEFORE shooting so that everyone knows the deal going in.

Copyright is part of the Constitution (Article I, Section 8, Clause 8 of the United States Constitution) and it gives that right to the creators of an image.  The photographer is legally recognized as the creator of the image.  It is the model’s responsibility to recognize that and negotiate the usage with this in mind.

Dec 27 06 03:24 pm Link

Photographer

Emeritus

Posts: 22000

Las Vegas, Nevada, US

Awesome Photos wrote:
5. The model can display her portfolio to other prospective clients (photographers and agencies...etc.) for self promotion and getting a modeling job. Agree? Good.

StMarc wrote:
Disagree. Bad. If she hasn't the right to display the images in her portfolio, she shouldn't do it.

OK, I'm with you on the rest of this, but please 'splain this one to me.  If the model has purchased prints from the photographer, and puts them in her book, why can't she show them to prospective clients for self promotion and to get a modeling job?  What "rights" other than physical possession of (a copy of) the picture does she need?

(I'll grant you that there are meanings of the word "display" that might get a little dicey, but I didn't use that word.)

Dec 27 06 03:29 pm Link

Photographer

none of the above

Posts: 3528

Marina del Rey, California, US

bang bang photo wrote:
So -- to me, there is some ambiguity about how broad this exemption is -- "exhibit in or about the professional photographer's place of business or portfolio." As a layman, I would interpret this literally to mean the studio premises. Are you interpreting this more broadly, to encompass posting on the internet, and if so, how do you get there?

TXPhotog wrote:
I have the same question.  This has come up before about the NY and MA laws, which are similar.  I've never seen a good answer to it.  I'm assuming it means what it says, not Internet use, but don't know that it has ever been litigated in any of those states.

Christopher Ambler wrote:
That's the most-common answer I get when I talk to my attorney about these things. He gives me his opinion, and then tells me that his opinion is worthless until a decision is reached by a court on the issue, so the answer to my question isn't "yes" or "no," but more often "probably" or "probably not."

TXPhotog wrote:
Agreed.  But perhaps this issue has been litigated, and I'm just not aware of it.  Hence the question.

the most likely reason is due to the cost of litigation based solely on promoting photos on the internet (personal site) in and of itself.  any likely suit probably goes far beyond that to defamation of character and not just posting photos on a personal site.

just a logical guess.

--face reality

Dec 27 06 03:32 pm Link

Photographer

StMarc

Posts: 2959

Chicago, Illinois, US

Ed Goodwin Photography wrote:
Based on what the earlier poster posted, is it correct to say that the IL statute provides that the photographer may display commisisoned works in the manner specified even absent any language in his business contract with the customer addressing display of the work?  Sort of like a backstop to the contract?

In the most basic situation where a photographer is hired to produce a portrait of a subject, and retains copyright as they would absent specific contractual language to the contrary, it is my opinion that the portrait could be displayed under the language of the statute despite the fact that it was a commissioned work. My opinion is not to be taken as legal advice: I cannot provide a definitive answer as none exists.

And a follow-on question, if I may.  Can the photographer include language in his business contract that provides for use of the images for purposes beyond display at his place of business or in his portfolio?

They most certainly may (the viability of such language would depend on jurisdiction and scope.) For instance, my portraiture sales agreement specifically provides that I can do anything I want with the portraits except sell them or use them to advertise the goods and services of a third party. My sister had a portrait done with her daughter* which the photographer used to advertise his studio (including in newspaper ads and some nice illuminated vinyl displays.) She asked me (jokingly) if she could sue him. I asked to see the sales agreement. She dug it up and it had language quite similar to my own. I told her that she could try to sue him, but unless Iowa (where everyone involved lives) had some sort of bizzare law to the contrary, she'd probably lose.

I said that she should ask him for the vinyls when he replaced them. smile

M

*Those of you who know me personally may find this difficult to believe, but my sister is very attractive and her daughter is an absolute angel. The photograph was quite nice.

Dec 27 06 03:35 pm Link