Photos for sale with no release form

<p>Well, title has it. I have a been "shooting" around for a long time,<br />and recently, I started lerning and using Adobe Light room</p>

<p>I have found some pictures which I processed with light room, and now it looks like a very nice art work. The imag is of a model posing, but at that time light was very bad and she was all dark, I could not use it anywhere. But, now I learned how, and made it as a piece of art I, or others could hang on the wall.<br>

The image is very recognizable. That is you can see it is a girl, but no face is rendered and it's in black and white.<br />Can I sell those on ebay, or use them in any other way for profit, given I don't have release form anymore, and don't have any record from who that model was?</p>

<p>I apologize, I just realized that I made a mistake, and meaning can be wrongfully understood. "I have found" photos that I made long time ago, on my hard drive. I am talking about my images, not what I found online.</p>

<p>If the person is not recognizable (face obscured), you don't need a release. You say that "no face is rendered," so maybe that qualifies.</p>

Similar question was asked a few days ago on PN.

 

[LINK]

 

With respect to the U.S., I agree with Jeff's answer.

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<p> or use them in any other way for profit</p>

 

</blockquote>

<p>And there, I believe, lies the rub. I agree with Jeff Spirer on the thread referenced by Mr Katz; but that's clearly print -related. The sentence quoted above throws the whole thing wider open. If Mr Dima wants to step inside the commercial usage arena, I believe he should have a release if the model is in any way recognisable -whether the face is rendered or not. Most stock agencies don't accept photographs of people's hands (to quote an example) unless the photographer has a release. </p>

<p>Bear in mind that it is the publisher of a photograph, not necessarily the photographer, that is liable. So on the one hand if <strong>you </strong>carry out a commercial application ( eg use the image as a book cover, or in advertising your services) and the model recognises herself and decides to take action, then that action will be against you. However if you sell the right to use an image to someone else who uses it for commercial purposes, then it is they that would be potentially liable in an action. Of course it might not end there - firstly because many agencies and clients wouldn't accept the image without a release, or insist that you indemnify them against any matter arising from their use of the image- which can get complicated really fast when you're not in control of the exact form of use. </p>

"However if you sell the right to use an image to someone else who uses it for commercial purposes, then it is they that would be potentially liable in an action." No really. The subject, or the hired attorney, will go after the photographer and the client. That said, folks use the word "licensing" instead of "sell" we never sell our images unless you are giving your © to the client or doing WFH.

If there is not model release then you can only use the image for editorial articles, magazines, newspapers, online news etc. Any commercial usage will need a solid model release. Even if the model's face is dark and someone can recognise it, or the model has a copy of the image then they already have the proof needed in court.

If you sell a print (at whatever price someone will pay), that is generally not considered "commercial use." At least in the USA. Location could matter with this because laws are not the same everywhere. For commercial use, a release is needed. Selling a print for someone to hang on their wall is not commercial use (whether or not you make a profit has nothing to do with it).

https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

Nussenzweig v DiCorcia

Key concepts: Right of Privacy/Publicity

 

Philip-Lorca DiCorcia photographed Hasidic Jew Ermo Nussenzweig walking on a public street in New York without his knowledge or consent. DiCorcia sold 10 prints of the image for between $20,000 – $30,000 through the Pace/McGill gallery. Nussenzweig sued DiCorcia and the gallery for privacy and religious reasons.

 

The court ruled that the photograph was art, not commerce, and protected by the First Amendment.

 

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https://www.rcfp.org/browse-media-law-resources/news/appeals-court-allows-artist-sell-painting-tiger-woods

No less that Pro Golfer Tiger Woods found that Art is protected. Woods sued the painter for selling images of Woods - and Tiger lost.

In the US Editorial and Art are protected. You can still be sued but generally will be OK. Commercial use is a whole different animal.

https://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

Nussenzweig v DiCorcia

Key concepts: Right of Privacy/Publicity

 

Philip-Lorca DiCorcia photographed Hasidic Jew Ermo Nussenzweig walking on a public street in New York without his knowledge or consent. DiCorcia sold 10 prints of the image for between $20,000 – $30,000 through the Pace/McGill gallery. Nussenzweig sued DiCorcia and the gallery for privacy and religious reasons.

 

The court ruled that the photograph was art, not commerce, and protected by the First Amendment.

 

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https://www.rcfp.org/browse-media-law-resources/news/appeals-court-allows-artist-sell-painting-tiger-woods

No less that Pro Golfer Tiger Woods found that Art is protected. Woods sued the painter for selling images of Woods - and Tiger lost.

In the US Editorial and Art are protected. You can still be sued but generally will be OK. Commercial use is a whole different animal.

 

Both of these deal with public spaces and are specific to that situation and may not be relevant to this situation.

>>>or use them in any other way for profit<<<

 

"And there, I believe, lies the rub..."

 

---Making profit by selling an image is irrelevant. It does not amount to commercial use. Commercial use involves uses relating to endorsements, promotions and advertisements.

 

"many agencies and clients wouldn't accept the image without a release, or insist that you indemnify them"

 

---The OP is contemplating direct sale art images, mentioning ebay specifically. releases and indemification won't be an issue.

"The subject, or the hired attorney, will go after the photographer and the client."

 

---Unless there is a claim for intrusion, disclosure of private facts or false light, there is no legal basis to "go after" a photographer for a third party misappropriation. claim.

"Location could matter with this because laws are not the same everywhere."

 

---For a claims of intrusion, yes, For a claim of disclosure of private facts, mostly rarely. For claims of false light, very rarely, For commercial use/misapproriation, no. Location is irrelevant. The issue will be if the likeness is used for endorsements, promotions and advertising. In all states.

This is a happy tour for me to read on this post. After reading the whole post, we can get solutions to deal with the trouble quickly and safely. Thanks for your nice sharing.