Attractive female physician paid a photographer to take partial nude artistic photographs of her. Can he post/sell these? Is he "responsible" for where these could end up?

Discussion in 'Business of Photography' started by jane_lay, Jul 13, 2014.

  1. Hello all,
    I hired a photographer to take partial nude artistic photographs. I paid him the day of the shoot. The photos turned out beautifully and he edited the ones I wanted and emailed them to me. I was not a model, I was a paying client.
    He emailed me a "contract" a few days before the shoot. It read like a "contract" but looked like a receipt also. I am HOPING this was just a template his uses for models and wasn't thinking when he emailed this to me and it was just generic. I talked to my friend who is an attorney about this. He read the "contract" and said this was unusual contract language because I HIRED HIM AND PAID HIM not the other way around. He said the contract reads like something you would make a model sign. I DID NOT SIGN THIS though, it was just emailed.
    I have extreme concerns now because they are partial nude and I will be a practicing doctor in the community in a couple years. After the shoot, he had mentioned putting one of them on his website just as an idea in passing. I was opposed to this. I state this now in this forum because his demeanor about all of it didn't seem to "get"having a partially nude photograph of yourself on any website is extremely damaging to one's professional career as a doctor, no matter how "artistic" it is.
    I have concerns about these photographs being on his hard drive now. What is if he decides to sell these someday if he's "down on his luck"? What if his hard drive gets stolen... is he responsible for where they would end up? What if I am a wife of a politician or something like that in 20 years? You always hear of these types of photos popping up... I think Judge Judy had something like this happen. She had topless pictures of her appear out of nowhere from when she was younger. I think she sued the crap out of a lot of people and they were taken down.
    The photographer and I dated briefly after the shoot also for a month or so. I told him I did not want to date anymore. I just don't know how to bring this up to him? Or have an attorney right a letter to him?
    I would like for him to sign something saying he will destroy these off of his hard drive.
    This was my first time hiring a photographer. I am just so put off by the entire thing now. How can a professional woman pay a photographer to take partial nude artistic photographs and not worry they will end up on some amateur nude/porn website someday or appear in a tabloid if she becomes a well known figure in the community?
    Thanks
     
  2. What Country / Legal Jurisdiction are you in?

    Your best option is to talk to a lawyer about copyright and who owns the photos. Copyright law is different in different countries.
     
  3. "Can he post/sell these? "
    I AM NOT AN ATTORNEY AND WHAT FOLLOWS IS NOT LEGAL ADVICE.

    If the photographer has a signed model release from you stipulating that he can, yes he can. If he doesn't have signed
    model release , no the photographer cannot.

    If you are really worried about this kind of thing, the answer is simple: don't knowingly take your clothes off in front of a
    camera.
     
  4. Your in the wrong place, seek an attorney.
     
  5. This is not a copyright issue. It's a privacy issue. In absence of a contract that says otherwise ,the photographer owns the
    copyright to the photos. The person in the photo owns the right to their likeness especially as it relates to commercial
    exploitation.

    Some states in the USA have recently been passing laws targeting so-called "revenge porn" where an ex lover or spouse
    publishes or threatens to publish (unless otherwise paid off) nude photos of their ex.
     
  6. SCL

    SCL

    Jane - Just as you would go to a doctor to diagnose an illness, you NEED to go to an attorney to diagnose exactly what your present and future rights are in your jurisdiction. Only then can you decide how to best proceed. Good luck in your quest.
     
  7. Reminder - anything you post in public, like this forum, is accessible on a Google search, etc.
     
  8. Warning - the sins of youthful indiscretions can often have lasting implications.
    Good luck to you in cleaning this one up. This could be very difficult both legally and emotionally.
     
  9. "I would like for him to sign something saying he will destroy these off of his hard drive"
    You can make a new bargain with the photographer about the future use and existence of the images. I gather your attorney friend who discussed contracts with you could draft one consistent with the new deal.
    On the other hand, the lawyer thinks its unusual for a subject to pay a photographer to shoot photos of themselves. That's a woefully uninformed opinion.
     
  10. If the photographer has a signed model release from you stipulating that he can, yes he can. If he doesn't have signed model release , no the photographer cannot.​
    That's too much of a blanket statement. Normally editorial use (everything but advertising/endorsement use) does not require permission of the subject. Because of the partial nudity other "right to privacy" issues could possibly apply but it is a matter where the shooting and usage circumstances will matter. The other posters are correct. Seek advice from a knowledgeable lawyer in the jurisdiction on this one.
     
  11. "How can a professional woman pay a photographer to take partial nude artistic photographs and not worry they will end
    up on some amateur nude/porn website someday or appear in a tabloid if she becomes a well known figure in the
    community?"

    Hire someone with an established reputation who can provide you with references - same as you'd hire a doctor, attorney,
    plumber, or architect.
     
  12. I have a question for you Jane...since you did not agree with the contract and you did not sign it, then why did you go ahead with the shooting?
     
  13. You need proper legal advice as to what the contract(s) you signed may or may not protect.
    As a doctor, I'd expect you to be reasonably familiar with the legal issues regarding patient privacy. You need permission to divulge patient info. Photographers, while holding copyright, must still be respectful of the subjects privacy/publicity rights. So like medical providers, they will often incorporate "release" provisions into their contract documents. These releases could have the language that would allow uses that the subject would otherwise have control over in the areas of privacy and publicity. This opens up added revenue paths. Perhaps to use for their own promotional uses or for sale to other end users with other uses in mind. This might explain why the lawyer thought it seemed like the kind of document provided to a professional model. Other photographers, dealing with the sensitivities of their customers do not seek out this kind of release and are careful in the handling, storage and copying of images that aren't supposed to get broader distribution.
    The problem you could run into is that once the pictures are taken, even with reasonable contract protection and permanent undying goodwill on the part of the photographer, there are circumstances where the images could get out. (Much like extreme controls being placed on celebrity medical records, there are periodic incidents where unauthorized individuals access them or authorized individuals mishandle/divulge records).
    The ultimate problem is that, if divulged, for whatever reason, there is little you can do to "unring the bell."
     
  14. Thanks for the responses!
    I am in the United States. Jane Lay is a pseudonym.
    ELLIS, I just looked up what you said. I live in a U.S. state where "revenge porn" law passed a couple months ago. They call it "unlawful distribution of private images". It is considered a Class 4 felony. Up to ~ 4 years of prison time.
    The state law is the following:
    "Criminalizes the intentional disclosure, display, distribution, publication, advertisement or offering of a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to disclosure."
    From reading this, it seems to me this would apply to a photographer that did not get consent from the "model" or person photographed to distribute or advertise an image with any nudity. They would face prison time and would be a convicted felon.
    The law says "intentional". So if God forbid his computer got stolen or something, is he still responsible for the images.... is my question? I wouldn't think he would be.
    I am going to contact an attorney for advice this week. I was just wondering what your experience was in this regard... or what you have heard. Thanks for your advice!
     
  15. Panayotis,
    The "contract" was on the same page as the invoice for the charges. I was looking at the charges on the invoice only. I overlooked it.
    It only came to my intention when I told my friend who is an attorney that I had partial nude photogrpahs taken. He asked me, "Did you sign a contract? If you're going to be a known member of the community, you don't want this popping up someday. Once its out there its out there". I said "No, but here is the invoice that he emailed me before the shoot.".
    However, technically speaking, There was no "contract" in this case because nothing was signed and doesn't apply anymore.
     
  16. Craig,
    I did not sign anything. So I believe you are correct in saying that,
    "The problem you could run into is that once the pictures are taken, even with reasonable contract protection and permanent undying goodwill on the part of the photographer, there are circumstances where the images could get out. (Much like extreme controls being placed on celebrity medical records, there are periodic incidents where unauthorized individuals access them or authorized individuals mishandle/divulge records)."​
    It would just be a case of if his stuff was stolen or something outside of his control.
     
  17. At this point you can ask him to delete all copies of the photos. Whether you decide take the polite or strong arm
    approach is up to you.

    Strangely enough, in thirty years of making photos for private and commercial clients, as well as for friends,lovers, family,
    and myself, I've only shot nudes twice. The first time was I college for a friend for her boyfriend, and the other time was
    for a friend n the early 1990s. In both cases I gave them the negatives afterwards. So many people do it that It just is not an area of
    photography I've ever felt I had anything to contribute to. I'm not a prude and if someone asked I'd probably do it, but it
    isn't something I've ever pursued.
     
  18. ... or maybe the middle ground. Instead of asking yourself (your history with the photographer may end up working against you) have a lawyer send a "letter of demand" asking that all files associated with your photo shoot be deleted. The lawyer can also mention the threat of legal action if that is not done or if the images are used in any way. The lawyer will know how to say this stuff firmly but politely. These letters are rather inexpensive and can be quite effective.
     
  19. It should be acknowledged that the photographer has some rights here. You are asking him to destroy some of his work.
    In return what are you willing to offer him in the way of compensation? Make it a straight up business deal, a quid pro quo.

    Jane your "lawyer" friend, as John H. pointed out, is way off base when he suggested that people don't sign those kinds of contracts with those terms when they hire a photographer. I suggest you find better and smarter legal counsel.
     
  20. It would seem to me that if an attorney, any attorney, had the last word, then we wouldn't need courts, judges, jury, and litigation.
    Intractable conflict is at the heart of every dispute where disagreements can only be resolved through the legal system. In this case, I think Brian's second post is probably a sensible approach as a preemptive maneuver against the risk of potential future harm independent of ones current legal position.
    The photographer will be free to ignore or comply with such a demand, but he will also have been forewarned that he will be pursued to the fullest extent of the law for the consequences should Jane Lay' s professional and/or personal reputation is in any way diminished, or her career is in any way negatively affected by the unauthorized released of the subject photos, from his side.
    Only the photographer will be able to predict his future conduct with any accuracy, but I'd like to think he would be foolish to take such a warning lightly.
     
  21. I live in a U.S. state where "revenge porn" law passed a couple months ago. They call it "unlawful distribution of private images".​
    That is probably the toughest law of that state which is of benefit to the poster here. It has come under criticism for 1st Amendment issues. The more larger concern for the poster may be an exception in that law which states that it is inapplicable to "images involving voluntary exposure in a public or commercial setting." The scope of what a commercial setting being the critical issue.
     
  22. Hi Jane,
    I can't contribute more to this issue than the others who have advised you to seek the help of the attorney.
    However, if you had asked for the advice before the shoot or if you are planning to have more pictures of you taken in the future I would like to offer you the following tip:
    As a paying client hiring a photographer you should create your own contract spelling out what the photographer has to deliver for the money that you will pay. Better yet, find the photographer to do the 'work for hire' for you - this way you will own your pictures and the copyright to those pictures.
     
  23. "That is probably the toughest law of that state which is of benefit to the poster here."​
    I meant to write toughest law in the country (USA). As you can see, I wrote in a rather hasty manner. I looked around online for info on the scope of commercial settings and there was very little found. Unless I missed something, It looks like most useful info will have to come from lesser available legal source material.


    From what was found, there was short passing commentary. One writer alluded merely to commercial transactions being involved. I noted that, at least, one state used that commercial transaction language rather than settings. Another commentator used a magazine shoot as an example. It was unclear if it were meant as a clear cut example or if they meant that there was a minimal distribution or disclosure element involved with commercial settings. I don't know if these writers actually have any real knowledge of the scope or whether it was speculative assumptions. Even judges will probably have differing conclusions. Much of this is so new and untested.
    The photographer will probably not find testing this as worthwhile. Indeed, they may have no intent to show the imagery to anyone. Chances are good they will come to a reasonable agreement. The value of these images seem to be minimal.
     
  24. How can a professional woman pay a photographer to take partial nude artistic photographs and not worry they will end up on some amateur nude/porn website someday or appear in a tabloid if she becomes a well known figure in the community?​
    1. Hire a reputable professional with a track record of satisfied clients and discreet business practices.
    2. Agree to the terms of the contract before any photos are taken.
    3. Don't "date" the photographer. (If your case is ever litigated, this decision might raise some questions.)
    4. If your reputation is that critical, don't pose for nude photographs.
     
  25. To Dan's list, one more:
    If your'e going to pose for photos that might prove embarrassing later, make sure that if you date someone with political
    ambitions, understand that you are morally and as a matter of preventing more pain and shame later, practically obligated
    to let them know as soon as the dating gets serious. It stops being just about you. This holds true whether you are male
    or female, "attractive" or not.
     
  26. Jane, I am a lawyer, and I would respectfully suggest that you plan to buy the images (all copies, in all media) from the photographer if necessary and/or pay him to keep them private. Expect to have to pay more than you would like, because you may not have much leverage in this negotiation. Your lawyer could perhaps start this process by sending a letter asserting your right to privacy of these photos, that any violation of your privacy will be met with legal action, and that you would be willing to pay a reasonable fee to buy the images and/or to assure that your wishes are carried out and your privacy is protected. This type of agreement, if breached, has damages that are not possible to calculate, so you would be entitled to injunctive relief (a court order that prevents the photographer from doing whatever with the photos) and with liquidated damages (a set amount of money that is large enough to be a disincentive on his end, without regard to your actual, incalculable, damages). But in order to get those remedies, you will probably need to enter into a new contract with the photographer that sets out all of this stuff and these remedies. You need a lawyer who knows what he or she is doing to negotiate and draft this contract for you. A lawyer who drafts business contracts may be a good choice. It is going to cost you some money to solve these problems at this point. So far as "commercial setting" is concerned, that generally means a transaction in which money is exchanged for services or goods. A non-commercial transaction would be a boyfriend taking photos of his girlfriend. Get a good and thoughtful lawyer to help you, and do it soon before something happens to those photos.
     

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