Can a college use a student photo for ad without permission?

<p>I have a neighbor from Turkey who recently graduated and she was seeking advice from my manager and another neighbor about her school using her photo during her graduation in an advertisement. It was used in a weekly newspaper here called San Diego Reader which is free because it's mostly funded by advertisements. She said she's the only person in the advertisement. She said her friends saw her photo and assumed she was paid for it. I asked her if she signed a model release and she said no. She was wondering if she's supposed to be compensated or if it was illegal or not.</p>

<p>She may want to read the fine print in whatever agreement she has with the school, governing her relationship with them as a student. There may be a clause that allows the school to use images of students for the school's own promotional purposes. Or not. It's easy enough to call the school's public relations person and ask, right?</p>

<p>Going to the school's public relations office will not help -- their job is to defend the school's image no matter what. If the school has an ombudsman's office, there's a better chance there -- they are supposed to be objective and even go against the university when appropriate. But the best possibility would be to go to the student association of the university where this happened. At some schools, they have either advisors for dealing with university issues, or can recommend lawyers who provide a free half-hour, no strings consultation.</p>

<p>The law varies from place to place, but in general if the event (the graduation ceremony) was organised by the college, and the college took the images or ordered them to be taken, then they have usage rights over them. The actual copyright resides with the photographer, or his organisation (which might be the college as well) </p>

<p>In general the only times an adult subject has any control over images is when they infringe privacy (not illegal in many places, and I don't think a graduation ceremony would count anywhere), when they are defamatory (obviously not in this case as the image celebrates student success), or when the subject/model commissions images for their own use.</p>

<p>This final one is the only reason why model release forms are used, ie to ensure that it is clear that the photographer is the one who is commisioning the image, that the model has been employed to pose for the images by the photographer and therefore the model has no usage rights. It is NOT permission to use the images, just clarifying the circumstances in which the images are produced, so that it is clear who owns the rights. Also there is no requirement for a model to be paid for their work in any case.</p>

<p>If images are taken on private property the property owner can request you to stop taking pictures, but they do not have any rights over any pictures you have already taken - that remains with the photographer, who can use them as they will subject to the provisos above. If picturs are taken from a public road etc of private property there is no legal comeback, again subject to local defamation and privacy laws. The exception of this, of course, is where national security/and some military images are concerned.</p>

<p>Despite all the above a polite letter to the college will not hurt, but I don't feel they have done anything they should not have done, and I am fairly confident you have no comeback on them. </p>

<p>A final thought - if the advertisemment is seen to be an endorsement of the college by an image of a student who is unhappy with the service they received there, there could be a cause for complaint. However if the issue has not already been raised using the formal college complaints procedure, this would almost certainly fail in law.</p>

<p>I just feel that she is being a bit greedy and you should tell her that. She was happy enough to pay the school for her course but now wants to charge for association? This sort of thing simply would not even get mentioned in Turkey.</p>

<p>Matt is right on - most of the forms at colleges and even High School graduations or ceremonies have a fine print line that states something to the effect of </p>

<p>"by signing (or not) below we give (or don't give) the university / school / whatever the right to use images, audio, video for promotional purposes." </p>

<p>You then sign or don't sign depending on the wording and whether or not you agree to allow the use of your image. </p>

<p>Nick - You are wrong on the subject's rights as to images of themselves. In the US, the subject of a photo can control the usage of that image for advertising / sales (in general) unless the person using the images (not the photographer, unless the photographer is self publishing) has their permission. Typical model releases (at least mine) state that the model is 18 + or has an adult's permission (both signatures required) and that I can sell the images and that the model for due consideration gives up all rights to the images except for purposes of his/her portfolio. In the US it is the responsibility of the publisher or user of the images to obtain the release, not the photographer. However, most, if not all stock agencies require a release to be submitted with the photo - so it becomes the defacto duty of the photographer to get the release. Further, in the US (in general) no release is required for news / editorial or artistic purposes. Release is required for advertising and sales usage. </p>

<p>I'm not a lawyer, nor is any of this legal advice - but I'd call the University - start with the PR dept. The question to ask is - Was there a photography release to the university on the graduation application or any graduation form? It is a simple yes or no question. If the answer is no - then she may want to contact the ombudsman or an attorney or both. At a minimum the university would have to stop using her image and or pay some amount. </p>

<p>Dave</p>

<p> </p>

<p>Some really bad information here.</p>

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<p>The actual copyright resides...</p>

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<p>Copyright is irrelevant to the question asked.</p>

 

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<p>In general the only times an adult subject has any control over images is when they infringe privacy (not illegal in many places, and I don't think a graduation ceremony would count anywhere), when they are defamatory (obviously not in this case as the image celebrates student success), or when the subject/model commissions images for their own use.</p>

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<p>This is not correct. Subjects have rights over usage in commercial situations, which this is. It's not clear if there was a condition as Matt references, and that would be a determining factor here.</p>

 

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<p>This final one is the only reason why model release forms are used, ie to ensure that it is clear that the photographer is the one who is commisioning the image</p>

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<p>This is also not correct. Model releases are used in any situation in which usage of that person's image is required. It is not specific to 'commissioning.?</p>

 

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<p>If images are taken on private property the property owner can request you to stop taking pictures, but they do not have any rights over any pictures you have already taken - that remains with the photographer, who can use them as they will subject to the provisos above. If picturs are taken from a public road etc of private property there is no legal comeback, again subject to local defamation and privacy laws. </p>

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<p>Incorrect. If the photos are being used to promote something, the photos cannot be used if there is no release for the people in the photos.</p>

 

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<p>I am fairly confident you have no comeback on them.</p>

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<p>If there is no release, which may come from what Matt says, then there is plenty of "comeback."</p>

 

 

 

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<p> if the advertisemment is seen to be an endorsement of the college by an image of a student who is unhappy with the service they received there, there could be a cause for complaint. However if the issue has not already been raised using the formal college complaints procedure, this would almost certainly fail in law.</p>

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<p>I would love to see a legal citation on this.</p>

<p>Stick to what Matt says.</p>

<p>I have no wish to start a flame war, however I would like to take the opportunity to answer the suggestion that put bad information into my post.<br /> Firstly I assumed the neighbor was in Turkey, not the US, so i did not target my comments on US law, but instead on that in the EU, which Turkey is in the process of joining. The US is one of the few places where a right to privacy exists.<br>

<br /> As regards the model release, this is an agreement between the photographer and the model, but it cannot control any publication as it is not a contract between the publisher and the model therfore its only use, to the photographer, is as I stated.<br>

<br /> I have used many model and property releases, but although all stock agencies ask for them, if it ever came to the crunch, they are only binding on the signatories, not on anyone else.<br>

<br /> Unless defamatory, against national security etc photography in a public place, of things visible from that public place is permitted under US law. This can be looked up online.<br>

<br /> Regarding the rights of the college i suspect that they are within their rights for one of their own graduands at a graduation, but as I originally said, a polite letter is the way forward.</p>

<p>Nick, IANAL but the photo in question was taken in the United States and published in a United States newspaper, so I would assume US laws apply. With that in mind, unless the student signed a model release, the school would not be able to use her image for commercial (including advertising) purposes.</p>

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<p> I assumed the neighbor was in Turkey, not the US</p>

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<p>The post states clearly that it was published in San Diego. That's not in Turkey/</p>

 

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<p> photography in a public place, of things visible from that public place is permitted under US law. </p>

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<p><br />The question wasn't about the photography. It was about usage.</p>

 

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<p>Regarding the rights of the college i suspect that they are within their rights for one of their own graduands at a graduation</p>

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<p>Under what law can they publish an advertisement with an image of somewhat not model release? Only if what Matt says is the case.</p>

 

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<p>As regards the model release, this is an agreement between the photographer and the model, but it cannot control any publication as it is not a contract between the publisher and the model therfore its only use, to the photographer, is as I stated.</p>

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<p>Virtually every model release I have used or seen has language that allows the photographer to assign the rights of the release.</p>

 

<p>My college has a very definite policy on the matter. No student's photo can be used in any way without a specific "photo release," and they provide faculty and staff with the forms. Keeps us out of trouble.<br>

Recently a textbook publisher contacted my department looking for photos of students engaged in learning activities. I had to track down some former students and get releases before I could submit the photos.</p>

<p>The bad advice continues.</p>

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<p>Stick to what Matt says.</p>

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<p>Matt suggested:</p>

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<p>She may want to read the fine print in whatever agreement she has with the school, governing her relationship with them as a student.</p>

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<p>Do you know how difficult it can be for a student or former student to obtain that fine print? Entering students receive an acceptance letter which says they are subject to all relevant university regulations, but they're not provided a copy of those regulations, which are different in different colleges within the university, different departments, etc. The only regulations which are made relatively clear are those regarding academic dishonesty.</p>

<p>Matt also suggested:</p>

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<p>It's easy enough to call the school's public relations person and ask, right?</p>

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<p>Sorry, but the PR office at most universities is a source of BS, and not one of useful answers. The first answer she will get from such an office is likely to be that her photograph was taken and used in accordance with university regulations, although a copy of the relevant part of those regulations will not be attached. The second letter from the PR office , if she persists and is lucky, may be a promise to look into the matter. Then she is likely to wait forever for the results of their looking into the matter, because they know many complaints will just fade away.</p>

<p>I like universities. I've received several degrees at universities (real ones, not honorary) which prepared me for rewarding work. I have taught at a couple of universities, both at the graduate and undergraduate level. If you're within the university, or have an issue from when you were, you don't go to the PR office, of all places, for information or to bring up a complaint.</p>

<p>I just searched the archives of UCSB, where I have taught a couple of graduate courses and served on some Ph.D. committees, advising students, and where my wife still teaches. The Office of the Student Advocate is the appropriate first office. However, even though their site contains many links, none helped with this issue in the time I was willing to give it.<br>

Don't stick to what Matt says (on this.)</p>

 

<p>Guys - can we all at least agree that the best advice, which I think we have all said in one form or another is for the party who may well have been mistreated by her college to talk to the college.</p>

<p>I am sorry if my comments have been misconstrued, but I would just like to confirm that they are all based upon information I have taken to be true, upon reasonable evidence of the quality of the source.</p>

<p>While not conclusive I have looked through a number of student registration forms, both for institutions I have taught at, and also online, and most include a photographic release for publicity purposes. It is interesting that these are of variable comprehensiveness - some defining the media concerned, but many just giving the purpose. Issuing a form when a phopo is taken appears to be a less used that a blanket permission on registration. </p>

<p>The law rarely permits something to happen, the context is usually to control, and any other activity of 'a reasonable man' (solely a legal entity!) is not controlled. Therefore there is no need to have a law under which something can be published, but only laws that say what can happen under certain circumstances (Infringrment of privacy, right to publicity, defamation) if it is published. </p>

<p>The only point that I would like to add before withdrawing from this (I hope friendly) discussion is that most of us appear to go beyond what is legally necessary in our business dealings. Checking the text I use for model releases shows it does include a right to reassign - but if wikipedia is consulted there are a number of sample forms, including one from the NY Institute of photography (who I have heard of 'across the pond') None include a right to reassign. A further search shows that almost all sample forms are similar, except for those specifically written for stock library use - and not all of these either.</p>

<p>Please lets part with the agreement that the college should be consulted, and that while some of what I have said may not apply under your jurisdiction, it is correct under all those I checked before posting.</p>

<p>Seeing as this is a photograph of an event (the graduation) and is used to promote the college itself and not a portrait studio or the like, I think you'll find that model releases may not be as necessary as if it was a posed photo of a person. Again, not legal advice - but I think the legal outcome would be something like, "No model release is necessary, but the college will stop using that photo anyway because it's easier than going to court."</p>

<p>If you check the fine print (which as some say may be hard to find, or may be readily available), I think you'll find that colleges generally have a clause that says all photographs taken on campus by a campus photographer can be used however the college wishes. Students may be able to 'opt out' (again, because it's easier than a legal battle), but they aren't required to opt in.</p>

<p>On a related note, how many people here are aware that many art colleges hold the copyright to any work you do for your classes, and that it is only <em>lisenced</em> to you? They won't sell copies or anything, but they do this so that they can use anything they want on their websites or in their newsletters without tracking down everyone.</p>

<p>The law in California makes no exceptions for the type of business (whatever) that is using the image promotionally. College, church, strip club, etc.</p>

<p>http://library.findlaw.com/1998/Feb/1/130405.html</p>

<p>I'm pretty sure the college can find the registration agreements/signatures that would apply - if they have them. If not, they can find their checkbook. One doesn't need to speculate on these things, the internet makes it quite easy to find accurate, relevant information on which to at least start considering what actions might be possible or appropriate.</p>

<p>Jeff is right as is Matt. Absent some agreement or condition that whereby the student signed some sort of waiver, absent a release, the person's image can not be used for any commercial use, as commercial use is defined in (this case) California and U.S. law. Editorial use is not "commercial" use, but an advertisement most likely is. Also, the OP didn't say weather it was a school paper either. If the university is a public university in CA, she can file a public records act request and probably obtain a copy of the at least the form of any school clauses or such that would bear on use of photos. </p>

<p>Barry- Keep in mind that the agreement to have your likeness used on campus may not be a separate piece of paperwork. It could very well be fine print written into your acceptance contract with the school. Your acceptance letter, which must be signed, dated, and returned before you start classes, may read something like, "I agree to hold the school harmless for any use of my image or likeness as pertains to college activities," or similar.</p>

<p>Again ... use in a limited-circulation newsletter is different than a full-scale advertisement. It may not be different according to the letter of the law, but the fact is that a judge or jury is more likely to find in the student's favour in the case of a full-scale advertisement, meaning that a school is more likely to back down in that case. California law may not differentiate between the two, but human feelings most certainly will. But it won't get that far.</p>

<p>Whatever the specifics, it's safe to assume that your friend isn't going to get paid. It's far more likely that the school will just drop her photo, and run one of the other hundreds that were shot the same day.</p>

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<p>she is being a bit greedy and you should tell her that.</p>

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<p>The question is merely "<em>if she's supposed to be compensated or if it was illegal or not.</em>" There is not indication of any actual effort to obtain money. Its just a question about what her rights, if any, are. Someone should tell you that.</p>

<p> </p>

<p>Here is a primer on the four situations, in the U.S. in general, where someone can be liable for displaying images of others (intrusion often doesn't even require the display)...</p>

<p>http://www.rcfp.org/pullouts/photographers/index.php?pg=primer</p>

<p>See the statutes and case law of the state jurisdiction for the specific law there.</p>

 

<p>Gotya Zack, if so, I actually think if you went to the school and asked them if there was that type of language in your acceptance contract or whatever else, they would probably show you. They may not, but you'd be surprised. If they are a public college or university, you should be able to get it with a Public Records Request. It is not that difficult.</p>

<p>Barry, you're probably right. They may not be required to tell you what the wording means (and the clerk may not even know), but they ARE required to show you your signature, public school or not.</p>

<p>Did the University PAY for insertion of the ad?<br>

In the US a person does have control of their image for commercial purposes.<br>

Checking with an attorney who practices intellectual property/copyright law is the only way you will find the answer here.<br>

In general, an ad featuring one person implies that person endorses what the ad is about. Just being a student may not be enough to take the school off the hook if this person did not consent with knowledge that they were consenting to their likeness in a paid advertisement.<br>

Some athletes are sueing their former schools and the NCAA for using their image after their playing days for the school are over. This is the kind of information to look for as it may well apply to this situation as well.</p>

<p>Tell the young lady I feel her pain. I never made a dime from the epic movie Woodstock. Yup I was there, never signed a waiver now at 61 I feel I may NEVER get paid. I'm going on the offensive. Download a copy of that gawky kid with black glasses buying a pack of smokes at the concession stand, and I will be happy to autograph it . (prices on request) RIGHT ON!</p>