Can a photographer sell my pictures without a release? (UK)

Hi everyone,

I have a basic but confusing question.

A few years ago (I was 18) I worked for a year with a photographer on a TFP

basis. I was new to the industry and indulged in the shoots to enable both of

our portfolios.

I never signed a release.

I have just now found my photographs on a website for sale.

I am furious to be honest but not entirely sure if there isn't a loop-hole in

the law I am unaware of.

He vanished off the face of the earth and took all my pictures with him, he

refused to answer any of my emails or calls.

The girl in the pictures with me was only 16 at the time.

Thanks for any advice, please feel free to ask any questions,

Thanks again, Angela Roberts.

Ps moderator please feel free to move this post if it is wrongly placed.

My take on this is that a photographer can't publish identifiable photos of you (including on a website) without your express consent - but a photography website isn't the best source of legal information...This link may help. http://www.sirimo.co.uk/ukpr.php

 

Reading between the lines of your post, I'm wondering whether you may also consider these photos to be libellous...

 

The question is, what can you do about it? You might like to consider writing to the ISP of the site concerned and pointing out that you strongly object to the publication of your photos and that you have not authorised their publication. In my experience most ISPs will either remove pictures or take the site down to protect their own position

No he can't. No model release means he can't be licensing them for anything except for editorial usage. That goes double for your friend who was 16. end of story.

 

As he is already avoiding you, You and she now need to contact a lawyer. The attorney 's first thing to do will be to send a cease and desist letter. The next step will be to discover if he or his agent(s) have made any sales of these images and to whom. Among other things you may be entitled to the proceeds from any sales he may already have made.

 

I'm not a lawyer but I know that there is a ton of established legal precedents on your side.

 

p.s. This issue has nothing to do with his ownership of the copyright to his images.

Are these pictures of you, i.e., showing your face, body as in a portait?

 

Or are they pictures made by you behind the camera, taken by you as photographer?

 

Might be a huge difference and from your words and Ellis' jumping to conclusions, we might not truely understand what you mean.

Actually, assuming he owns the coyright in the images (which he probably will if he took them) then yes he can. He can do what he likes with them, regardless of your wishes.

 

There is an exception under the Copyright Designs and Patents Act (1998) if the pictures were commissioned for private/family purposes, but this would appear not to be the case.

 

The only thing he can't do is defame you: associate your name with a product that makes you look bad, tell lies about you using the photgraphs, photoshop your picture onto a police wanted poster - that kind of thing. Apart from that, the pictures are his to do what he likes with. Sorry.

 

I am not a lawyer, and you may find one who knows a way to prevent him using your pics - but - and I have a vested interest in having researched this - once you've consented to having the pictures taken (or they were taken in a public place) you have no say whatsoever over what happens to them.

... and to continue, it matters not a whit as to whether anyone in the pictures is under 18, or is or isn't recognisable. You have no rights in your own image in the UK.

Well, as I said orginally, a photography forum isn't the best place to seek legal advice. The best place in my personal experience is from a specialist (and very expensive) solicitor and it's a good idea to avoid GP solicitors, whose advice on this type of subject is often wrong but still expensive.

 

There are legal forums in the UK (Google will find them for you) where at least many of the people posting on them are legally qualified

Hiya,

 

I live in the UK and used to work as a UK based pro advertising photographer. On the face of the information given I agree with Alec.

 

As far as I am aware, in the UK, the photographer who shoots the images retains copyright of anything he shoots unless he specifically signs away those rights. In other words, he can do what the hell he likes with them as long as it is legal and proper.

 

However, if it does bother you that much, I would take legal advice, which may cost you..

 

cheers Steve.

I do agree that this isn't the place to come for a legal opinion. One of the reasons for this forum is for people to share information, so if Angela does get some professional advice, it would be nice for her to let us know, so we can all be a bit better informed!

As I said above, this doesn't involve copyright.

 

Is this really true: that a UK citizen person has no rights to their likeness being used for commercial purposes ( in other words advertising, not editorial, not "art") in the UK?

Ellis, my take on this is that UK residents (whether citizens or not) do have rights in this area, unless they have signed those rights away in return for a consideration. But that's just my understanding of the legal position, hence my heavy disclaimers.

 

The problem as I see it is that the laws that I believe to apply are frequently ignored or misunderstood - for example, wedding photographers may include a contractual term with their clients to publish their photographs on their websites but don't (can't) get model releases from all of the guests who also feature in the shots

I suspect that the law that applies will be the law as it stood when the photographs were taken. You might try posting at the site Garry linked to here:

 

http://www.sirimo.co.uk/ukpr.php/2004/11/19/uk_photographers_rights_guide#comments

 

(scroll to bottom to post, and read comments to see if your situation has already been commented on)

One point that is clear in English law is that a signed release is not needed - a verbal contract is quite sufficient, and if you originally gave consent then you don't have the right to rescind that unilaterally. Prima facie, you gave consent "to enable both of our portfolios" as you admit in your post.

"Is this really true: that a UK citizen person has no rights to their likeness being used for commercial purposes ( in other words advertising, not editorial, not "art") in the UK?"

 

In respect of advertising, there is a code of practice (I forget which) that all the major publications adhere to which says that "consent should be obtained", but it's not enshrined in law.

 

My understanding is that you might have a claim for libel if you were shown in an ad to be falsely endorsing a product by the use of your image; but this is a fairly tenuous case to argue - you'd still have to show your reputation was damaged etc etc.

 

Photographers of course are still wise to get releases, to avoid "misunderstandings" at a later date, and for international purposes, and because I gather agencies insist on them - for the same reasons.

 

It sounds like the problem in this instance is not so much advertising, as commercial exploitation - photos being sold as a product in their own right. Again, I know of no requirement for any kind of consent for this to be an entirely lawful use of someone's picture.

 

The recent Hello vs. OK magazine spat regarding the pictures of the Douglas/Zeta-Jones wedding through up a few interesting side arguments regarding breach of privacy, commercial confidence, and also breaches of the Data Protection Act: one must consent to personal data being stored on a computer, and there may be arguments that storing collections of images on a computer constitutes a database. While the Data Protection Act has an exemption for artistic purposes, you might argue that this doesn't apply to commercial images for sale. Again, apart from the Douglas/Zeta-Jones case I have found no precedent in any court decision on this subject.

 

Nonetheless, the lengths that Hello/OK case went to (to the House of Lords, on appeal, on lots of technical issues) illustrate that lawyers can still find plenty to argue about.

 

I should say that I'm not professionally qualified to give advice on the subject, but I am interested, and the above is how I understand the position to be through plenty of reading.

 

Ellis, you're right in that it's (probably) not a copyright issue, but if there *were* a demonstrable breach of copyright that would be a much more straightforward way to prevent publication! Sadly that may well not be the case here.

 

Linda McPherson (who is a solicitor in the UK) who wrote the guide referred to above at http://www.sirimo.co.uk/ukpr.php also answers questions on exactly these matters in the "comments" that follow that page, so that would be a good point of reference.

Like everyone else here, we are 'bar room lawyers'. However, my understanding of UK employment law is that if you worked with/for a professional photographer as his employee/apprentice, paid or unpaid, then he owns any photograph which you took during working hours unless you had a written or verbal contract whereby you supplied or rented your equipment and were only paid for sold photographs.

 

Even if you were a self employed sub contractor I would expect the same conditions to apply especially if he supplied some or all of the equipment.

I think in order to make an informed judgement of whether you need legal advice, we need to see the "infringing" content. Please give the URL to the website so we may comment.

Its actually very simple...If you photograph someone without their permission in a place where that person can rightfully expect privacy, ie Say like they were standing in their back garden and you took their picture over the fence or say they were inside their house and you took their picture through a window or they were in a restaraunt and you walked in and snapped them eating...Then you cannot publish those shots commercially, without obtaining their consent.

However if you take their picture in a PUBLIC place, (like their front garden or in the street or on a beach, where they cannot rightfully expect privacy, then they have no rights over the use of the pictures at all and you can do anything you like with them.

This is how the paparazzi can get the shots they do and can do what they like with them, they just make sure they take them in a public place.

I know it does'nt specifically help AL but I just thought you should all know.

Geoff, I think it's clear from the post that the issue here is about photographers taken OF her, not BY her.

 

Alf, I think it's clear from the post that this is about unauthorised commercial usage of images, not editorial use.

 

Or am I reading it wrongly?

Garry,

 

It doesn't make any odds - commercial or editorial use of images, same restrictions (i.e. basically none) in the UK.

I think it's even simpler: there was a contract with consideration (TFP basis), and consent was given at least "to enable portfolios". I don't read anything that says that consent was restricted to disallow sales, any more than permission to use the photos to help gain modelling assignments.