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

TXPhotog wrote:
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

None, all other things being equal and so long as her copy is lawfully possessed. He didn't limit his example to purchased prints, he stated it as an absolute. For instance, if a model prints out pictures from a web preview gallery without the photographer's consent, that's bad.

M

TXPhotog wrote:

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.

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.)

Perhaps there's a bit of confusion going on here due to the nature of the typical TFCD photo sessions many of us do. If you give a model a CD of the images from the shoot then you'll need to include with it a license for the model to be able to make prints or use those images online. That's because in order for prints to be made, or for the images to be uploaded to a website copies of the images will have to be made. This will violate copyright law. The model could show the CD to as many people as they'd like, but they would not have the right to copy any of the images without the photographer's permission.

  If the model is given prints then these photographs can be placed in a book and shown to anyone for any purpose. However, the model cannot make copies of those prints without the permission of the photographer.

  As I understand it, in its most simple definition copyright is about who has the right to make copies of a  created work.

  -P-

Pat Thielen wrote:
If the model is given prints then these photographs can be placed in a book and shown to anyone for any purpose.

bang bang photo wrote:
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

ok, and im no legal expert

but my "take" is as follows:

if a photog places the photo amongst a group of similar photos in a "GALLERY of photos as in an exhibiton of works" whether online or in his studio then it is not considered "advertsing his business". as his "studio" doesnt have to be a brick and mortar, his studio can merely be an online presence.

however, if the photog takes the photo and uses it as the background, or adjacent to his name, or likeness, or isolates it, or makes any attempt to make it appear that the model is "endorsing" his prescence/business then it is a violation of the "likeness" law

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.

Right TX we have been there before about NY and MS and there does not seem to be a definitive answer or any case law. Depends on whether the courts in dispute would interpret that wording literally as limited to a bricks and mortar place of business, and to that question there is no ready answer.

Studio36

Chili wrote:
ok, and im no legal expert

but my "take" is as follows:

if a photog places the photo amongst a group of similar photos in a "GALLERY of photos as in an exhibiton of works" whether online or in his studio then it is not considered "advertsing his business". as his "studio" doesnt have to be a brick and mortar, his studio can merely be an online presence.

however, if the photog takes the photo and uses it as the background, or adjacent to his name, or likeness, or isolates it, or makes any attempt to make it appear that the model is "endorsing" his prescence/business then it is a violation of the "likeness" law

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.

Oddly enough, I just got that plus a few more books on the subject for Xmas.

StMarc wrote:
That's why I said "in certain circumstances." 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

Actually Mark NY litigated something with common questions to that presented with the "place of business" question here, that provides a small pointer as to how a NY court might see it. It was a state v. insurance broker case on remote services provided by the broker's tele-presence to an office at which there was no actual broker but from where customers could communicate with the/a broker who was physically located at a different location and at a registered office.

Held that... the remote location and tele-presence could not substitute for the legal requirement that a broker meet customers face to face for the purpose of the sale of insurance products. Thus, the remote location might be used for customer service or mere enquiry purposes but not for contact with customers involving an actual sale of an actual insurance product, and it did not serve the purpose or meet the requirements in NY statutes [regarding the insurance industry, in particular] as a factual place of business.

Now that presumes that you are dealing with a NY regulated business; located in NY; and the customer is also in NY. As soon as you move interstate and in a non-regulated business [e.g. photography] then things will change because the heavy duty defence argument will turn on the [Dormant] Commerce Clause which would, if accepted by the court, override the more restrictive NY specific statute provision. NY lost one of those on tobacco advertising and sales via the internet but it did not specifically turn on the "place of business" question so much as NY trying to impose NY regulation on interstate commerce and out of state businesses which did NOT maintain a bricks and mortar presence in NY state only a virtual [Internet] presence.

Studio36

StMarc wrote:

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.


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.

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.

Thank you.  Now, if I may ask you to indulge me with one more answer, I'll stop bothering you.

According to the PPA, Illinois is one of 9 states requiring a written subject release.  I would assume that a proper release will detail the consideration offered the model in exchange for her granting permission to use her image for whatever purposes are stipulated in the release.

My question is, is the mere offer of consideration sufficient to seal the deal?  Or, is the release contingent upon fulfillment of the consideration offer?  For example, let's say a model signs a release in which she is to be paid $500 by the photographer for permission to use her image(s).  The photographer pays her with a check drawn on a closed account.  The photographer never makes good on the bounced check.  Would the release be in force under such circumstances?

Ed Goodwin Photography wrote:
My question is, is the mere offer of consideration sufficient to seal the deal?  Or, is the release contingent upon fulfillment of the consideration offer?  For example, let's say a model signs a release in which she is to be paid $500 by the photographer for permission to use her image(s).  The photographer pays her with a check drawn on a closed account.  The photographer never makes good on the bounced check.  Would the release be in force under such circumstances?

Gee, I go out to dinner and look at all of the hub-bub that ensues.

I might as well get involved.  St. Marc can give you a better answer than I can, but you have created a complicated situation.

Let's take a look at this from two different perspectives.  First, let's take almost the same scenario you have here.  A model shoots with a photographer, he agrees to pay her in thirty days, she signs a full release but then the photographer doesn't pay her.  Most people presume that the release is invalid.  The answer, in my view is that the release is probably enforceable, but what has happened is there has been a breach of contract on the part of the photographer.

Put another way, the model voluntarily posed for the shots and agreed to model, it was not the fact that she modeled that she found objectionable, it is the fact that she didn't get paid.  And there is the rub.  If she took the photographer to court, so long as it had been his intention to pay her, the limit of her damage may well be the amount she was to have been paid, plus court costs.  So if the model was hired for a day for $500, in all probability, she could end up just getting a judgement for $500, since that would make her whole.

You now raise a different situation though.  Your scenario is identical except that the model is paid with a check written on a closed account.  We now have a totally different situation.  What we have is fraud.  The photographer, by writing the check on a clsoed account, appears to have intentionally procurred her services with the intent to defraud her.

That changes the playing field.  A contract which is entered into through fraud is often voidable.  Likewise, in many jurisdictions, one can collect punitive or exemplary damages as a way of punishing the individual for fraud.

So, there are two totally different situations here, but writing a check on a closed account clearly changes the equation.

But, since I am not a lawyer, St. Marc would be better suited to comment.

Ed Goodwin Photography wrote:
According to the PPA, Illinois is one of 9 states requiring a written subject release.  I would assume that a proper release will detail the consideration offered the model in exchange for her granting permission to use her image for whatever purposes are stipulated in the release.

My question is, is the mere offer of consideration sufficient to seal the deal?  Or, is the release contingent upon fulfillment of the consideration offer?  For example, let's say a model signs a release in which she is to be paid $500 by the photographer for permission to use her image(s).  The photographer pays her with a check drawn on a closed account.  The photographer never makes good on the bounced check.  Would the release be in force under such circumstances?

Consideration is not required for a model release to be valid in NY and, I suspect although it hasn't been litigated, in IL. However, if consideration were offered and then withdrawn, the model could make a good case that she had been fraudulently induced to sign the release and that therefore it shouldn't be valid. Better to not say anything about pay than to offer it and then not give it.

M

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:
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

Why, thanks Paul - for assuming that I'm one of those "old farts who have been in the business forever . . . assuming that just because they've always gotten away with something, they always well".  You are more than welcome to go shout it on the mountain and sing it on the rooftops about your interpretation of the law - and my portfolio will continue to benefit from my "illegal" images.

JAY carreon
PHOTOGRAPHER

rp_photo wrote:
Without getting into the details of this situation, here is some common sense advice to help reduce such problems in general:

Models - Don't be in a hurry to undress, especially when starting out. I am amazed that the mentioned photographer got paid by the model AND got her topless!

Photographers - Give the new models a break and don't talk them out of their clothes too soon. Many don't realize what they are doing and possible future regrets. Show them some positive leadership

Riiiggght . . . . okaaaaaay - you do that.

JAY carreon
PHOTOGRAPHER

Ed Goodwin Photography wrote:
According to the PPA, Illinois is one of 9 states requiring a written subject release.  I would assume that a proper release will detail the consideration offered the model in exchange for her granting permission to use her image for whatever purposes are stipulated in the release.

My question is, is the mere offer of consideration sufficient to seal the deal?  Or, is the release contingent upon fulfillment of the consideration offer?  For example, let's say a model signs a release in which she is to be paid $500 by the photographer for permission to use her image(s).  The photographer pays her with a check drawn on a closed account.  The photographer never makes good on the bounced check.  Would the release be in force under such circumstances?

StMarc wrote:
Consideration is not required for a model release to be valid in NY and, I suspect although it hasn't been litigated, in IL. However, if consideration were offered and then withdrawn, the model could make a good case that she had been fraudulently induced to sign the release and that therefore it shouldn't be valid. Better to not say anything about pay than to offer it and then not give it.

M

Haha, you are probably right.  I guess it is better to lie to the model about paying her than to defraud her.

Alan from Aavian Prod wrote:
Haha, you are probably right.  I guess it is better to lie to the model about paying her than to defraud her.

Especially where one course of action makes you a criminal but the other makes you merely a lying bastard. LOL

Studio36

Vito wrote:

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

Still working my way through this thread, so my apologies if this has already been posted: 

Copyright Overview
Work Made for Hire

Generally, the author of a work is its creator. However, the Copyright Act makes an exception for what are called "works made for hire." In this situation, the employer or other person for whom the work was prepared is considered the author and owner of the copyright, unless there is a written agreement to the contrary.

Carole Hayes

Copyright Overview
Work Made for Hire

Generally, the author of a work is its creator. However, the Copyright Act makes an exception for what are called "works made for hire." In this situation, the employer or other person for whom the work was prepared is considered the author and owner of the copyright, unless there is a written agreement to the contrary.[/quote wrote:

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

Carole Hayes wrote:
Still working my way through this thread, so my apologies if this has already been posted:

Copyright Overview
Work Made for Hire

Generally, the author of a work is its creator. However, the Copyright Act makes an exception for what are called "works made for hire." In this situation, the employer or other person for whom the work was prepared is considered the author and owner of the copyright, unless there is a written agreement to the contrary.

That doesn't mean quite what you think.  If a model hires a photographer to take her headshots, he is a contractor, not an employee.

The word "employee" means someone on your payroll.  This has been discussed on these forums many times before, and aparently while I was writing my reply, Bang Bang also addressed the same issue.

Paying someone to take your pictures is not what the language in the act is about.

Carole Hayes wrote:
I just read the last two posts -- I'll keep reading....

I have an email in to a lawyer, just to get a professional opinion.

Back to page two....

Carole Hayes wrote:
I have an email in to a lawyer, just to get a professional opinion.

It is always better to ask a lawyer a legal question than it is to ask a photographer.

Alan from Aavian Prod wrote:

It is always better to ask a lawyer a legal question than it is to ask a photographer.

That was my reasoning....  ; )

bang bang photo wrote:
Carole,

Go to this page on the US Government's Copyright site -- it explains the ins and outs of work made for hire. The key thing to understand is that a work is "made for hire" not when it is purchased or paid for, but when it is created by an employee - in a very technical sense of the word, "employee."

If you hire an independent contractor, the work is not automatically "made for hire;" instead the contractor has to agree to make it so -- in writing.

http://www.copyright.gov/circs/circ9.html

Thanks for the link!  I'm finally caught up here....

After reading all of that, it DOES seem that we aren't really dealing with a copyright issue at all, and there are just too many unanswered questions to figure out how right to privacy/publicity affects it.

This all seems like it shouldn't be so complicated -- but what a MESS!

We never did find out if she signed a release or not, did we?

MEMasonPhotography wrote:
If she paid him, and no release was signed, then it falls under the law as "a reasonable expectation of privacy". Therefore she does have the right legal action. To force their removal and possible damages.

Hopefully it was not a cash transaction, or if it were,  she got the photographer to sign a receipt for payment as proof that she did pay him?

The distinctions among privacy rights, publicity rights, and copyright are best illustrated by example, as follows: An advertiser wishes to use a photograph for a print advertisement. The advertiser approaches the photographer, who holds the copyright in the photograph, and negotiates a license to use the photograph. The advertiser also is required to determine the relationship between the photographer and the subject of the photograph. If no formal relationship (e.g., a release form signed by the subject) exists that permits the photographer to license the use of the photograph for all uses or otherwise waives the subject's, sitter's or model's rights, then the advertiser must seek permission from the subject of the photograph because the subject has retained both privacy and publicity rights in the use of their likeness. The privacy right or interest of the subject is personal in character, that the subject and his/her likeness not be cast before the public eye without his/her consent, the right to be left alone. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation.

That seems to be a pretty clear explanation.  Based on that explanation, I would say that if no third party exists, then the photographer takes the position of BOTH the advertiser AND the photographer in the above illustration -- meaning that, without a release, he would need the subject's permission -- or he'd be violating the subject's right to privacy.

If I'm wrong about that, could somebody please explain how/why?

Thanks!  : )

Carole Hayes wrote:
That seems to be a pretty clear explanation.  Based on that explanation, I would say that if no third party exists, then the photographer takes the position of BOTH the advertiser AND the photographer in the above illustration -- meaning that, without a release, he would need the subject's permission -- or he'd be violating the subject's right to privacy.

You're asking photographers again.  The problem with both privacy rights and the right to publicity is they vary totally, from state to state.

So while your quote is a good generalization, it is just that, a generalization.  A lot of it has to do with how a photo is used.  Depending on the state, there are different uses which may or may not be permitted without the consent of the subject.

Obviously the best policy is to get a release wherever possible.  While a release will not guarantee that you won't have a disagreement, it does provide a memorialization of the agreement between the parties.

If someone insists upon publishing a photo without a release, the best advice is to contact an attorney familiar with that area of the law in their state.

bang bang photo wrote:
So, not to derail a nice conversation -- does anybody know yet if the bitch signed a release or not?

lol  ..just catching up on this thread and blurted a little upon reading this post of yours yeah, that's what I was looking for ..to find out if she signed a release or not and what the release stated....

Leo 3 wrote:
Get someone to break his legs

I second that

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.

SLE Photography wrote:
Oddly enough, I just got that plus a few more books on the subject for Xmas.

I have a copy of that book myself I got it a while back

StudioMona wrote:

lol  ..just catching up on this thread and blurted a little upon reading this post of yours yeah, that's what I was looking for ..to find out if she signed a release or not and what the release stated....

Alan from Aavian Prod wrote:
You're asking photographers again.

Oops -- forgot where I was!  I'll wait for a reply to my email....

Carry on.

; )

bang bang photo wrote:
Well yeah -- I was laughing when I wrote that -- glad to see you caught my humor!

Since we still don't know whether she signed a release or not, I am guessing she did sign a release AND, to top it off (no pun intended ), ALSO paid the photographer and now she has misgivings about it and who wouldn't? I think there is a big lesson to learn from all this..... jmho.

Hey, Jason.
Sorry for taking so long to reply.  I just got my lap top and wasn't
able to get a connection for a bit there.  The bad news:  I did sign a
model release that said he could use the photographs.  It was simply his
word that I trusted that the only photos used online would be the ones
that I approved of (clearly not the topless ones).  Is there no hope for
me?  It is 2:45 and I have been traveling back home since 7 am, now I
have to get ready for work.  Please email me back, and maybe I can call
you tomorrow, if that's cool.  I have the day off.  Thank you for your
help.

The only thing I can think of is to ask the photographer if he would be willing to take them down.

Jason McKendricks wrote:
I finally received a reply from her:

Hey, Jason.
Sorry for taking so long to reply.  I just got my lap top and wasn't
able to get a connection for a bit there.  The bad news:  I did sign a
model release that said he could use the photographs.  It was simply his
word that I trusted that the only photos used online would be the ones
that I approved of (clearly not the topless ones).  Is there no hope for
me?  It is 2:45 and I have been traveling back home since 7 am, now I
have to get ready for work.  Please email me back, and maybe I can call
you tomorrow, if that's cool.  I have the day off.  Thank you for your
help.

Jason McKendricks wrote:
The only thing I can think of is to ask the photographer if he would be willing to take them down.

Well now we know.

Alan from Aavian Prod wrote:

Jason McKendricks wrote:
I finally received a reply from her:

Hey, Jason.
Sorry for taking so long to reply.  I just got my lap top and wasn't
able to get a connection for a bit there.  The bad news:  I did sign a
model release that said he could use the photographs.  It was simply his
word that I trusted that the only photos used online would be the ones
that I approved of (clearly not the topless ones).  Is there no hope for
me?  It is 2:45 and I have been traveling back home since 7 am, now I
have to get ready for work.  Please email me back, and maybe I can call
you tomorrow, if that's cool.  I have the day off.  Thank you for your
help.

Well now we know.

Yeah the suspense has been killing me.

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

One thing that has been bugging me about this.  How does someone get "talked into" taking their top off?

Now guys, we've all been there...on a first date or on a romp with some drunk chick we picked up at a party.  Even under the best of conditions, it usually takes some amount of effort to get their tops off.

So, I guess I'm having a little trouble with the notion that a couple of "models" go to the studio of some old, flabby, bald-headed photographer, pay him $600, and then take their tops off for him too.  Not a very likely situation unless they wanted to do girl/girl nudies and then thunk better of it later.

Ed Goodwin Photography wrote:
So, I guess I'm having a little trouble with the notion that a couple of "models" go to the studio of some old, flabby, bald-headed photographer,

I resemble that remark!

Mickle Design Werks wrote:
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.

Ben Franklin, Thom Jefferson, et al in the THE UNITED STATES CONSTITUTION wrote:
Article 1/Section 8.
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Now, where is Copyright part of the Constitution?