ALee wrote:
Like almost everyone I am on Myspace. A couple weeks ago I recieved a friends request from this photographer so I added him. He sends me a picture of myself that he "touched up" which didnt bother me I thought nothing of it. Then I went to his page a few days later and my image was on the banner for his buisiness. He did not take this photo!! What should I do?? He is false advertising!!

Under DMCA you need to have the copyright holder a Notice of Infringement (NOI) to Myspace and the offender. Yahoo has pretty good instructions on how to submit this info;

http://docs.yahoo.com/info/copyright/copyright.html

Of course change the info to reflect Myspace abuse department. Under the Digital Millenium Copyright Act, this form is required but the copyright holder your original photographer must file the NOI. I found one of my images on Yahoo and it was removed within minutes, it seems..

Darrell wrote:
Under DMCA you need to have the copyright holder a Notice of Infringement (NOI) to Myspace and the offender.

It is interesting, I have heard this said repeatedly.  It is moot since the guy already took the images down, but I will post this comment anyhow.

You are right, the DMCA has a specific procedure for the copyright holder to use to have an image remove that is improperly posted.  You are also correct that only the copyright holder can send a DMCA notice.  You are also correct that Yahoo, and presumably Myspace, will react quickly.

However, MySpace has a written policy with respect to displaying images of individuals for which you don't have rights.  Particularly they have a policy about taking images from the profiles of others.  Had the offender not taken down the image, she clearly could have written MySpace and asked for the image to be removed because it was taken from her profile.  There was a paper trail supporting that.

The DMCA does not prevent a model complaining about a stolen image posted in contravention of the terms of service for the provider, it merely has a procedure to handle copyright violations.

C R Photography wrote:
Screw the legal system.

Sounds like an ass kicking is in order

right on!

ALee wrote:

Did I make "intense remarks"?? Its fine for someone to show their ability but not to use someone elses work in the process. He is very talented and I wish him the best but I have my own ass to protect. I guess sometimes it just takes someone else to get their attention. Thank you again!!

Regardless of whether or not the dude has photoshop skills, he had no right to post that picture. I've done retouching work before, but never claimed any right to the image or even displayed it in a portfolio.

If he wants to show his skills, he needs permission to create a derivitive work from an original piece instead of just pirating the photos.  Better yet, shoot his own photos and make before and after shots; that is assuming he knows his ass from a camera. My guess is  that he doesn't, otherwise he wouldn't be swiping images.

Thomas B wrote:
best bet is to bluff him. Threaten him with legal action and that you have notified the photographer. Chances are that will scare him off. Hiring an attorney would be too much money and you have to ask if spending that much money for a myspace photo or banner is worth it. I think bluffing with do the trick

Ahhhh...no.

Threaten someone with legal action that you have no intention or ability to pursue is, yes you guessed it, a crime, should he wish to push back.

Let me re-phrase that, it may be a crime depending on what state you're in.

Of course you can always then pursue the legal action making your bluff real thereby avoiding the issue.

SKPhoto wrote:
Threaten someone with legal action that you have no intention or ability to pursue is, yes you guessed it, a crime, should he wish to push back.

Actually, it isn't a crime to threaten a civil action.  You can always threaten that you will sue someone.  It may, in some situations be a crime to threaten someone with a criminal action, whether you intend to follow through or not.

images by elahi wrote:
Wow I cant believe some of the advice..it's totally off...you dont own the copyright but you own the right to your own image and likeness...send him a Cease and Desist Letter....look up rights of privacy on the net...and listen check some of the other threads here and youll get the info you need...it's been discussed over and over and over and over and over...i

Sorry Elahi but I got to disagree,

The model stated she signed a release for the photographer, he (or she) (the photographer) under US law is the sole owner of the copyright unless the release stated otherwise.

In this instance the only options open to the model are to track down the original photographer (even if he is out of business he still retains copyright of any images he shot)  Or perhaps contact the violator and simply inform him that you are aware he is using the image without permission and you have sent the link to the copyright owner in question and have asked him to persue it further.  Even if you havn't this may be enough to scare him into deleting the evidence. (unless he just read my post )

Best wishes, Darren

Alan from Aavian Prod wrote:

Actually, it isn't a crime to threaten a civil action.  You can always threaten that you will sue someone.  It may, in some situations be a crime to threaten someone with a criminal action, whether you intend to follow through or not.

When I was much younger a Minnesota judge explained this to me during a bankruptcy hearing (not mine).  Threatening to sue someone, if you lack the ability, ambition, or basis to actually do so, is a civil crime.

Making "legal" "threats" is illegal unless you have the wherewithal to actually follow thru.  "Legal" "threats" can also be construed at the very least as harassment if it can be shown that you have made no move to follow thru on your threats, at worst defamation if you have any facts wrong.

Perhaps the laws have changed, certainly the number of people doing just this thing has increased beyond the realm of dealing with.  Unless you're in a state that has gone thru tort reform.

Yes Martha the waters are muddy.  Basically don't threaten someone with something you can't do, a lot of people are richer and more ornery than you might ever be on your worst day.

Kdakmmt wrote:
another reason for sticking with film photography. Its easy to prove your images if you have the negatives:P

The original out of cameras have EXIF data, that includes date, time all camera and flash settings.

So someone lifts a 72 dpi 500x667 image, and I have the 3003x2002 pixel image with all the EXIF data, I can prove ownership.

You can also subscribe to a service like Digimarc that can track your images over the web.

Alan from Aavian Prod wrote:

Ty Simone wrote:
First, Right to publicity / privacy is automatically waived for a photoshoot.

Ty believes that when a model steps in front of a camera, she waives all rights to her likeness and that a photographer can freely use her images, with one exception.  Ty defines "commercial use" as explicitly endorsing a product.  Except for such an endorsement, Ty feels a photographer could use an image for anything, including posting on a membership pay site, without a release or consent from the model.

I found several of my images on a website. I politely asked for them to be removed the offender stated "they're on the Internet, and can be found via Google, Yahoo etl al Image Search, therefore they are in the "Public Domain" I issued a NOI, Notice of Infringement, and the webhost shut him down. I will futher pursue the matter shortly, I have the webpages archived and I am sending a non-renewable  Invoice for the period (based on the datestamp of the webpage creation).

He's unlikely to pay my Invoice, however the judgement for non-payment can be enforced as easily as copyrights.

Alan from Aavian Prod wrote:

Ty Simone wrote:
First, Right to publicity / privacy is automatically waived for a photoshoot.

Ty believes that when a model steps in front of a camera, she waives all rights to her likeness and that a photographer can freely use her images, with one exception.  Ty defines "commercial use" as explicitly endorsing a product.  Except for such an endorsement, Ty feels a photographer could use an image for anything, including posting on a membership pay site, without a release or consent from the model.

Not true Alan, Do not try to make it seem like I am saying something I am not.

Right to Privacy means that a person can not simply photograph you, without your permission, where you are recognizable, and then use the image publicly.

It has been held by the courts that a pre-arranged photoshoot automatically negates right to privacy for the model.

Right to publicity means that your image can not be used in a commercial means (as defined by the US Supreme Court) without your permission.

commercial means denotes that it is Directly endorsing a product or service, such as using her image in a Nike Ad.

right of publicity: an overview
The Right of Publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.

In the United States, the Right of Publicity is largely protected by state common or statutory law. Only about half the states have distinctly recognized a Right of Publicity. Of these, many do not recognize a right by that name but protect it as part of the Right of Privacy. The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness,unreasonable publicity and false light. See Restatement (Second) Of Torts §§ 652A - 652I. Under the Restatement's formulation, the invasion of the Right of Publicity is most similar to the unauthorized appropriation of one's name orlikeness. See Restatement (Second) of Torts § 652C (http://cyber.law.harvard.edu/privacy/Pr … ctions.htm), comments a & b, illustrations 1 & 2.

In other states the Right of Publicity is protected through the law of unfair competition. Actions for the tort of misappropriation or for a wrongful attempt to "pass off" the product as endorsed or produced by the individual help to protect the right of publicity. See Unfair competition (http://straylight.law.cornell.edu/topic … ition.html).

If a person can establish an aspect of his or her identity as a trademark, protection may be provided by Federal law. See Trademark (http://straylight.law.cornell.edu/topics/trademark.html).

The Federal Lanham Act can also provide protection where a person's identity is used to falsely advertise a product or designateits origin. See § 1125 of The Lanham Act. (http://www.law.cornell.edu/uscode/15/1125.html)

See also:
The Right of Privacy
The Right of Privacy: Access to Personal Information
The Right of Privacy: Personal Autonomy

This is from a legal website.
Unless that banner DIRECTLY ENDORSES his product or service (which by definition on MySpace, it can not!) it is perfectly legal in all states except California.

Not all artists need be starving, a Manhattan judge has ruled.

A dispute between a top photographer and the Orthodox Jew whose picture he surreptitiously took at Times Square -- then sold 10 prints of at $20,000 to $30,000 each -- turned on the question of whether the photograph constitutes commerce or art.

As commerce, the picture would be subject to the restrictions set forth in New York's right-to-privacy laws; as art, it would not.

The disputed photograph, Supreme Court Justice Judith J. Gische has ruled, is art.

"New York has been fairly liberal in its protection of what constitutes art," Justice Gische held in Nussenzweig v. diCorcia, 108446.05.

New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character," Gische noted. "This analysis recognizes that first amendment protection of art is not limited to only starving artists. ... A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes."

Before you go off spewing crap about people, at least try to get your facts straight.

Ty Simone wrote:
Right to Privacy means that a person can not simply photograph you, without your permission, where you are recognizable, and then use the image publicly.

Wrong.  The Second Restatement of Torts lists four distinct torts under "right of privacy" (or invasion of privacy).  Your own quotation says that.  Some states recognize all of these torts, others none; some have passed statutes to explicitly define the nature of the torts, others rely solely on common law.  In at least one state it is a matter covered in the state constitution.

Ty Simone wrote:
It has been held by the courts that a pre-arranged photoshoot automatically negates right to privacy for the model.

Which courts?  Where?  Privacy rights are matters of individual state law.  A court decision on the issue in one state based on the laws of that state do not determine the issue in any other state.

Ty Simone wrote:
Right to publicity means that your image can not be used in a commercial means (as defined by the US Supreme Court) without your permission.

Wrong again.  About half of the states recognize a "right of publicity".  Just as with privacy rights, these are derived from the individual statutes and common law of each individual states.  The US Supreme Court does not decide those issues, except perhaps to interpret the laws of a particular state as it applies to that state.

Ty Simone wrote:
commercial means denotes that it is Directly endorsing a product or service, such as using her image in a Nike Ad.

Wrong yet again.  Could you please give us a source for that claim, and tell us which jurisdictions it applies to?

Ty Simone wrote:
Unless that banner DIRECTLY ENDORSES his product or service (which by definition on MySpace, it can not!) it is perfectly legal in all states except California.

Once again, wrong.  Could you please provide us a source for the statement that California's law is more expansive, but that none of the other states have more expansive laws?

Hint:  I can tell you of a state whose laws are a LOT more restrictive than California's.

Not all artists need be starving, a Manhattan judge has ruled. . . . . (snip)

That case was with respect to a photograph taken in a public place, of a person who was not posing for the photographer, and who had no understanding with the photographer in any form relating to the potential uses of the shot.  It is not applicable (without a lot of caveats) to a case where a model does a shoot in a photographer's studio under some understanding of the purpose of the shoot.

Thomas B wrote:
best bet is to bluff him. Threaten him with legal action and that you have notified the photographer. Chances are that will scare him off. Hiring an attorney would be too much money and you have to ask if spending that much money for a myspace photo or banner is worth it. I think bluffing with do the trick

I agree with this.. i once had a club promoter steal an image of mine to use for a flier.. which i had posted when it was used for a flier that I designed for a club promotion company i worked for... I hit him with a cease and desist letter threatening legal action by  X-pose.net (My photography), Iconmakerdesign.com (my graphic design) and Intrepidjam.com (the club/concert promo company i worked for) .. he realized he may be sued by three companies at once and quickly took it down and sent repeated appoligies.