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Copyright question
Okay. I've run into a little problem with some users on the site. And thought I'd turn to the professionals  Person A is a manager/agent and is complaining about Person B's photos (photographer). Person A says that Person B has his clients photos up without signed model releases so he has no permission to use them. Person B says he has copyright. Person A says it doesnt matter because he doesnt have model releases. So who's right? Sorry if this has been asked before! And sorry Ty Simone for not reading the links you posted... was just looking for a quick answer so I can go back to working on the site  Jul 12 05 11:40 am Link Tyler, I've asked if anyone can show a court case where it was ruled that a model release was needed for an online portfolio. I haven't seen one case yet... BTW, If the photographer is claiming they are art, he doesn't need a release. Jul 12 05 11:47 am Link Posted by Tyler:was just looking for a quick answer so I can go back to working on the site Really quick answer? Jul 12 05 11:49 am Link Posted by piers: Posted by Tyler:was just looking for a quick answer so I can go back to working on the site Really quick answer? So if I make claims about you, Tyler should just delete your pics and let us settle it? Jul 12 05 11:50 am Link Posted by Tyler: Unless the "manager" can show that he owns the copyright side for the photographer. Does the photo in question have any word attributed or anything else that damages her reputation? Jul 12 05 11:54 am Link Posted by XtremeArtists: That is right, but claiming art isn't enough here. The photographer needed to publish first and has to have at least one exhibition. Just by claiming it, a photo isn't automatically art. We had cases like that in Germany... Jul 12 05 11:54 am Link Posted by piers: Heh. I was going to actually make a rule so I did'nt have to deal with these hassles. If there is a complaint and the two parites can't resolve it on their own, both parties will be removed from the site. Haha. But, then that could probably cause more problems than it's worth. And could be pretty unfair to people with legitmate claims and what not. Or people with legit photos and false claims. Jul 12 05 11:56 am Link Posted by Mike Cummings: Nope. Just simple pics of the models. Jul 12 05 11:58 am Link Posted by XtremeArtists: K, cool. Jul 12 05 11:59 am Link This is very interesting reading on the subject: http://www.danheller.com/model-release.html It does a good job of explaining how much of a grey area model releases really are. But I will quote: "There are some uses of images that don't need a release, even if you can clearly identify the person or thing. News, editorial comments, and satire are but three of numerous examples." Anyway... I would suggest you NOT TAKE SIDES. One party or the other must prove a violation for you to take action. This is a private dispute that should be worked out between the individuals. If you take arbitrary action for or against either side you might create problems for yourself. Jul 12 05 12:01 pm Link If the picture is posed then the model knew her photos were being taken. There is no expectation of privacy. If the photo does not have attached to it anything that puts the model in a "bad light" such as "I make love to eight people a night" or has no product attached to it. Then the photographer has every right to show HIS work. Tell the "manager" to get bent. Jul 12 05 12:02 pm Link Posted by Mike Cummings: I agree! Jul 12 05 12:05 pm Link Posted by XtremeArtists: Posted by Mike Cummings: I agree! *thud*... sorry I just fell over. ;-) Jul 12 05 12:06 pm Link Posted by XtremeArtists: Posted by piers: Posted by Tyler:was just looking for a quick answer so I can go back to working on the site Really quick answer? So if I make claims about you, Tyler should just delete your pics and let us settle it? exactly, This needs to be done the right way. Jul 12 05 12:08 pm Link The misunderstandings of the law on this site never cease to amaze me. Tyler - you are running a service, even if you don't charge money. As such, you have liability. I suggest that you consult an attorney TODAY and get a professional opinion and not rely on anything anyone on this site tells you unless they're prepared to do so, on the record, as your attorney. I am not prepared to do so - anyone else? If this costs money, and it will, post what it costs along with a paypal donate link, and I'll be the first to contribute. But the bottom line: free legal advice is worth what you pay for it. GET. AN. ATTORNEY. TODAY. Jul 12 05 12:10 pm Link Posted by XtremeArtists: Posted by Mike Cummings: I agree! I agree also. Inherent obvious contract when a model shows up to a shoot. Nudes or freaky stuff is different. It is even more strong if the model is from an agency for there are standard practices that are followed with regards to use of images. Jul 12 05 12:10 pm Link Tyler, It has been ruled by the courts that a website owner is not responsible for items posterd by members on his site. First Ruling If he truly thinks he has a case, he needs to do the following: What he needs to do Since he is not the Copyright holder, his claim will fail. You are perfectly safe. Jul 12 05 12:13 pm Link Remember one lawyer is just a human so get a few different educated opinions. Only a court is the true judge of anything. But it would be nice to have things like this resolved once and for all. Jul 12 05 12:17 pm Link OK, longer answer. Unlike most of the other, seemingly similar threads, this one (assuming it is not hypothetical) might just have repercussions for the site - which unless I'm mistaken, is run voluntarily. So I'd suggest leaning heavily on the side of caution. Correct me if I am wrong, but I believe there is case history of both copyright and libel cases being brought against community based sites. The significant issue is whether the site or the poster is responsible for the content posted by the users (ie not the site admin). As far as I am aware the Courts take the view that the site is not liable in the case of infringement PROVIDED the site removed offending matter if requested to do so - the claim being against the poster. Now, if you want to take a more robust approach, you would need to make a decision about whether the accuser is even connected with the images. Even if they are, is there actually a case to answer - in the UK the answer would be no, but hey, you guys don't live here ;-) Your lawyer will be able to advise you. Some might like to play brinkmanship with this kind of stuff - and I'm sure there are those who find it fascinating (myself included)- provided it is done with someone else's money. Lets face it, similar subjects have kept more than a few threads going here. But my advice remains: if there is a real risk and you are in doubt, delete and get legal advice. Jul 12 05 12:17 pm Link Posted by Ty Simone: Tyler, if you rely on this, you're in trouble. Jul 12 05 12:18 pm Link He who shoots, he who owns the copywrite. Simple enough "I have never seen a bad picture everyone is a work of art" Andy Warhol PS i might not agree with that every pic is art after all i seen some really crappy photographers but each one of us does own the copywrite for our own "ORIGINAL" work Jul 12 05 12:20 pm Link Posted by Cristan: Really? How do you reconcile that with a work for hire? Jul 12 05 12:22 pm Link Most likely a decision would fall under the threshold of exploitation. If the display of the image does not go beyond the limitation of simply promoting one's own individual work for capital gain, then it rightfully couldn't be held up that revenues were gained for purpose other than artist entitled self-promotion. It is unlikely a court will challenge one's ability to seek gainful employment or compensated work through promotion of their creations using those without release unless that promotion was deemed to cause harm (such as promotion of images in places that may damage the reputation of the person in question). Should the individual take the next step however, and seek capital gain through commercial sales of such images through stock photography sales, prints/posters or other means, then a likely cease order would take place in addition to royalty payment on those sales. Jul 12 05 12:24 pm Link Posted by Chris Ambler: Posted by Ty Simone: Tyler, if you rely on this, you're in trouble. Chris, Jul 12 05 12:26 pm Link BTW guys this is NOT a copyright dispute, it is a contract dispute. Having or not having a model release does not diminish the copyright. Jul 12 05 12:26 pm Link Posted by Chris Ambler: Posted by Cristan: Really? How do you reconcile that with a work for hire? Work for hire is an exception. Jul 12 05 12:28 pm Link Hey when did we all become French? What are we all a bunch of pansy pussies? Take up a collection and fight the retarded internet model manager and find out the truth. Enough of this hiding under the furniture afraid all the time. fight now when you do not have much money. Fight I say, fight, fight, kill, kill, I am tired of hearing about people being frightened of going to jail for littering. Jul 12 05 12:35 pm Link Right to Puiblicity Law for Florida: Here Note this section! 3) The provisions of this section shall not apply to: (a) The publication, printing, display, or use of the name or likeness of any person in any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes; (b) The use of such name, portrait, photograph, or other likeness in connection with the resale or other distribution of literary, musical, or artistic productions or other articles of merchandise or property where such person has consented to the use of her or his name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof; or Tell the Manager to F*ck Off! Jul 12 05 12:36 pm Link Does person A have power of attorney for the model in the pictures? Without it, how is it any of his business? I've heard conflicting information about whether or not online portfolio display would require a release. Most say no, but how many cases have been brought one way or the other about online portfolio display without a release? Jul 12 05 12:37 pm Link Posted by Ty Simone: Sounds like consent had to be granted at some point according to the law. Since we don't know if it was or was not, that section is moot. Jul 12 05 12:40 pm Link Posted by Chris Ambler: A "work for hire" can take on many forms. One of which is creating imaging while under the employ of, such as a journalist working for the LA Times, in which the Times becomes the image owner. Jul 12 05 12:41 pm Link The amount of bad advice here is amazing. I think the best advice is get a lawyer. First of all, this isn't a copyright issue, it's a usage issue. Having the copyright on an image doesn't necessarily give one the right to use it in all circumstances. The model release is how the model grants certain usage rights to the photographer. The photographer does have certain rights to usage without a release but some usage requires the permision of the model. As Xtremeartist alluded to, posting in an "internet portfolio" is a gray area that as far as I know hasn't been tested in the courts yet. So you can't get a straight answer. A "posed shot" does not automatically give the photographer the right to publish that image. The question is whether an internet portfolio would be considered "published". My 2 cents on how to handle it: tell them it's between them and up to the courts to decide, not you. If Ty's info is accurate, sounds like you have legal precident to support you in this stance. But you really should consult a lawyer  Jul 12 05 12:41 pm Link Posted by theda: The Faloona v. Hustler case addressed under the publication of private facts heading also claimed an invasion of their right to privacy through the commercial appropriation cause of action. To this claim, the court had several responses. First, the court observed that "mere publication of a person's likeness in a commercial newspaper or magazine does not create a cause of action for misappropriation. The public must be able to identify the person from the photograph or drawing -- and the defendant must have capitalized upon the likeness of that person in order to sell more magazines or newspapers." The court found it to be significant that Hustler did not identify the plaintiffs in any manner. Their names were not listed in any caption alongside the pictures. Furthermore, Hustler did not publicize the magazine issue based on the pictures of the plaintiffs: "Hustler did not exploit the photographs in a publicity campaign designed to sell more magazines. Indeed, the "preview" in the November 1978 issue for the coming excerpt from The Sex Atlas uses a nude picture of other children, not the plaintiffs." Faloona v. Hustler, 607 F. Supp. 1341 at 1360, (1985, ND Tex). Jul 12 05 12:45 pm Link Posted by theda: Posted by Ty Simone: Sounds like consent had to be granted at some point according to the law. Since we don't know if it was or was not, that section is moot. I thought I read he had a release. Sorry. Jul 12 05 12:48 pm Link Posted by Tyler: Something to prove to make the case stronger. Did the model ever use the images online or in her portfolio? If the model did so in the past, then I would think that the model would have a harder time to assert that she did not ever want the images to be used for promotional uses. Jul 12 05 01:04 pm Link theda is right, it is none of the "manager's" business. Usage disagreements are none of MM's business. Jul 12 05 01:14 pm Link TY! You have a serious site here, lots of traffic, lots of potential issues. You are probably on the cusp of charging small administrative/set-up fees to help the site grow and to keep bogus ports off. Take a little of that money and put it towards a legal advisor that will sit down and clarify and define all the various issues/rights/duties that will come out of this site. (copyright, usage, and a host of other irritants will likely pop up like 'shrooms after rain) I am an inactive member of the California State bar, I can't advise you, on how to proceed....but you, or any business owner, owes it to themselves to get educated/protected so that you know when to tell someone to take a flying F*ck and when you need to pay attention. Jul 12 05 01:43 pm Link I have no idea about the sites responsibility or liability in this issue. But I do know that the head legal counsel for the ASMP advises that portfolio and other self promotional usage does constitute advertising and does need a release. And either Jack Reznicki, Gary Gladstone or both have also said thier own IP attorney's have given the same advice, as have other others in the APA and ASMP. Jul 12 05 01:52 pm Link If he paid for the shoot with the model then he has copyright, no release required to do what he wants with them. Provided he kept the proof showing he paid for them. If the the model went to the photog behind the agency back then it becomes an issue with the model and the agency if she broke any contract they had together. If the Model changes her mind and all of a sudden does not want him to use the photos, he can fall back on the payment issue. If the model did the photoshoot for free and no contract they are still his images, he took them. The downside to this is if he posts/uses them in places where it would hurt her personaly. If it came to court this last one is the only one the photog would lose. Just so you know if the site owner knows about such activities and turns a head to them and the model recieves personal injuries due to them being posted, you could be names in the lawsuit as well as an accessory. Plain and simple you would be told to remove them, you are not liable to any other extent. Of course this is how i would look at it but i am not a lawyer but i would def cover my ass. Nobody needs to make money off you personaly when your trying to help others. Jul 12 05 02:02 pm Link Posted by Peter Dattolo: I would very much like you to please cite the law or decision that leads you to this belief. Specifically, the "do what he wants with them" part. Jul 12 05 02:06 pm Link |
