Copyright and legal usage

Discussion in 'Business of Photography' started by scott_slusher|1, Jun 21, 2008.

  1. Between October 2007 and February 2008, I photographed a young lady (21 years old) in what amounted to 8 different sessions. These
    images where created strictly for artistic use and have never been sold however, they are publicly posted on not only my personal website
    but also on several other photo networking sites. A few months ago I received an email from the models grandmother stating that the
    model (her grand daughter) was to young and immature to do such a thing (some images are nudes) and requested I remove the images
    from online presence. Out of artistic integrity and that the body of work is good, I refused to remove them.

    Today I received a letter in the mail for a lawyer representing the model asking that I remove the images from online sites. The letter also
    claims that I have been selling the images online as well as in art galleries, which is not true. The images are online strictly to show a
    portfolio of work that is consistent with my style of image making and there is no desire on my part to ever sell them.

    My question is this... as the legal holder of the copyright, do I have a legal right to display those images as they are, regardless of no
    model release being signed. It is my understanding that a model release protects the model from illegal use of the images. As the
    copyright holder of those images I have a legal right to display them as my work.

    Any insight would be helpful.
     
  2. "regardless of no model release being signed. "

    Hmmm. I think you need a lawyer to represent you.

    'As the copyright holder of those images I have a legal right to display them as my work. "

    Not necessarily if the model feels they infringe on her privacy.
     
  3. As Ellis noted, you need an attorney, for many reasons. You need an attorney not so much because somebody is right or wrong, but because litigiousness is often about "muscle". Which means that the party with the financial ability to intimidate the other party usually gets their way.

    Any photographer, professional or hobbyist, who photographs anyone and publicly displays those photos, without an appropriate written contract that clearly specifies copyright ownership, usage rights, and other liability information, is asking for trouble. Sometimes it can be various forms of big trouble.

    When photographing anyone of questionable age, it is also essential to get and keep a copy of the subject's identity papers as well, with proof of age, whether they get photographed with or without clothing. People have been criminally prosecuted for photographing an under age person who lied to the photographer about their age.

    If you haven't noticed already, your present situation is a big wake-up call that it is time to assemble the appropriate legal paper work before you ever take another photograph, whether for professional exhibition, or any other professional purpose.
     
  4. This is simple - contact the young lady in question and ask whether she is happy to have her images publicly
    displayed. Explain that you have received a letter from a lawyer apparently on her behalf, and have been contacted
    by her grandmother. If she is still happy to have them displayed (without any pressure from you), and she was the
    age you say she was when the photos were taken, then fine. She is an adult and able to make up her own mind on
    this - her family's wishes have nothing to do with it.

    BUT on the other hand, if she is unhappy and wishes to have them removed, then remove them straight away, no
    quibbling. Even if a young woman has consented to have the photos taken, and has initially agreed to have them
    made public, if she changes her mind you should remove them. Circumstances change and sensitivity should be
    shown here.

    Copyright is not the same as a model release. A model release is there to protect the model in all kind of ways;
    copyright simply protects you from others making a profit directly or indirectly from your work, and prevents your
    work from being used in a way that you have not sanctioned.

    However, copyright doesn't come into it in this case IMO; This is about respecting the dignity of your model. Keep
    the moral highground. If she wishes for the images to be removed, remove them, and either find another model, or
    display some of your other work.
     
  5. If you have been contacted by a lawyer representing the model the reality of the situation has become that you now only have two viable alternatives:

    1.) That you either agree and take the photos down and hope the matter ends there.

    2.) You speak to an attorney and find out if you have a viable fighting strategy. if you do and decide to fight it out, go down that route your attorney is there to speak for you and represent you. Let him or her do their job.

    With a lawyer on her side doing the talking for her interests. Whether she has retained the lawyer or has been coerced into doing so by her grandmother is irrelevant if the lawyer is representing the model.

    It has now escalated to the point that would be a bad and highly unadvisable idea for you to contact the woman in question directly.
     
  6. http://www.photoattorney.com/
     
  7. "A model release is there to protect the model in all kind of ways"

    Its the opposite.

    "speak to an attorney... ...Let him or her do their job. It has now escalated to the point that would be a bad and highly unadvisable idea for you to contact the woman in question directly."

    The best possible advice obtainable here. The errors and confusion shown in the last paragraph of the original post make this even more necessary. Don't accept legal advice from an internet forum which is riddled with authorative sounding yet, incorrect, statements. Discussing a matter such as this publicly online is ill-advised as well.

    Lawyer up dude.
     
  8. I want to thank all that have posted in reply to my question. I guess I should have made one thing clear in all of this. I
    am not a professional photographer and do not make a living from this. My background is in art and therefore my
    images are posted on my site as such. In the past few hours I have done some research and here's what I have come
    up with:

    Artistic exhibitions (and publications) are considered editorial and are protected, by the First Amendment, from the need
    to have consent from a subject in order to publish a photo of him, her or "it" (like a building or other property). This
    means that you can exhibit your photos of recognizable people or things in galleries, public fairs, photo contests,
    magazines, newspapers, postcards, posters and coffee table books (or books of any sort, so long as it's not one that's
    distributed with a product, like a camera manual). In fact, "art" in any of these forms can be printed without a release,
    regardless of the medium in which it is printed, because of that First Amendment permission.

    In the case of Nussenzweig v. diCorcia, Defendant Philip-Lorca diCorcia's show "HEADS" appeared at the Pace Gallery
    in Chelsea (Manhattan) in September and October 2001. The exhibition featured photographs of 17 people taken without
    their knowledge in New York, Tokyo, Calcutta and Mexico City. The photographs, tightly focused on their individual
    subjects and printed at four-feet-by-five-feet, created uncommonly intimate likenesses. In addition to the Pace exhibition,
    the photos appeared in a catalogue and numerous advertisements and reviews. This court case was also the basis for a
    decision for a dispute between a top photographer and the Orthodox Jew whose picture he surreptitiously took at Times
    Square, then sold 10 prints of at $20,000 to $30,000 each. As commerce, the picture would be subject to a model
    release; as art, it would not. Supreme Court Justice Judith J. Gische has ruled it is art.

    In another court case, Mattel, Inc. et al. v. Walking Mt. Productions, Mattel sued an artist and his company for copyright
    and trademark infringement based on the artist's use of BARBIE dolls in a series of photographs depicting them in
    various unflattering poses, and use of the BARBIE mark in connection with the photo series. The court found that the
    photos are permitted under "fair use" professions, which precludes Paintiff's trade claims. Furthermore, the artist may
    sell postcards featuring the same photos displayed in the exhibit, since an artist is permitted to sell his own artwork in
    other formats. In the court's opinion, the average person would not necessarily assume that the Mattel Company was an
    advocate or sponsor for the photos depicted.

    Publishing photos of recognizable people in editorial books (which includes almost all books) never requires releases. It
    was thought at one time that the one exception is a book cover, which was considered commercial in nature because it's
    considered the part that "sells the book." But it turns out this isn't true either. This is according to the 11th Circuit court,
    which ruled on July 18, 2006, "amazon.com did not violate a person's right to privacy or commerce simply because the
    photo was used as the cover of the book, and that amazon.com displayed it on their website."

    The exception to when "art" isn't really art brings us to the example where you have a portrait studio in a shopping mall.
    That's a commercial use because you are promoting your business. Here, the photoラor "art" in one of its formsラis
    being used in a commercial context because it is very specific to the nature of the business. This is quite different than
    a restaurant, where artwork is not so clearly a part of the establishment's "business model." Here, it's more widely
    accepted as being part of the decor. (One can argue that decisions to eat at a place aren't based on its artwork.) What's
    more, it is generally accepted that eating establishments have always been venues for art. This de facto standard has
    been established long ago, and courts usually uphold such traditions.

    Art exhibitsラand indeed, the sales of photos as artworkラare exempt from requiring a release from subjects that happen
    to be portrayed. Courts have decided repeatedly on this matter, including those situations where other potential conflicts
    may be intertwined.

    Posting photos on websites for the purpose of selling/licensing of images is not a form of publication that requires a
    release. The courts call this a "vehicle of information," and has been established by the Illinois Appellate Court in
    JAMES BROWN, THE NEW JAMES BROWN ENTERPRISES, INC., and JESUS MUHAMMAD-ALI v. ACMI POP
    DIVISION. As noted above, photos on a website that are for sale is considered a "vehicle of information." So, these
    photos do not require a model release so long as you are only selling the photos, not promoting a third party product or
    service. Nor can you attribute (or imply) that someone (in a photo) advocates your business, an idea, or anything.
     
  9. None of this addresses the actual issue you face. I will ditto my previous post but add this long chronicle to the confusion being demonstrated.
     
  10. "As the copyright holder of those images I have a legal right to display them as my work."




    Without a signed release from the model, you are not in a position to have 'public display' of your artistic work.



    You can fight the issue, but that would depend on how much money and time you plan on investing to find out if your in the right on this issue. [Future idea: get a signed model release at the time you use your camera.]
     
  11. Scott, since you have the answer, you can go about your business without worry or a lawyer. You have demonstrated that you are just as savvy and legally sound as the lawyer of the model that you photographed as an artist. Since you are so smart and informed, just disregard the same advice you requested here. It appears you have convinced yourself that you are right and you can now challenged this model, her grandmother, and their lawyer. Good luck...

    I would just contact the model and ask her if she wants the photo/artistic design removed. If she does, then remove it. If she does not, then have her sign a model release.
     
  12. <br>Simple and easy:
    <br><br>
    - How much would it cost to have an attorney to reprensent you? How long this will last?
    <br>Vs<br>
    - How much would it cost to hire a "real" model, with a real model release form, to shoot and have fresh new
    photos for your website?
    <br><br>
    Of course there is much to say about your rights and ownership of the photos but it would take so much time and
    money, sometimes, to make youself heard.
    <br>
    And now you know that a piece of paper can save you big times.
     
  13. By the way, did she get paid for doing the shoots?

    With 8 different sessions, it is difficult to say, from her lawyer point fo view, that the model didn't consent to pose or to be taken in photos...
     
  14. Much good information is being exchanged in this thread.

    However, I hope it is worth it to repeat, as others have tried to point out, that "right and wrong" are not necessarily the major issue in Scott's situation. His situation is about a party who feels aggrieved, whether or not they have a viable legal case against Scott. Scott may be on decent legal ground, but if someone with financial clout starts a fight, the party with the money to fight will often go to extreme legal lengths to get their way. Despite that, a threat letter from an attorney is a far cry from being served with a summons and complaint from civil suit plaintiff. Scott's situation hasn't reached that threat level at present.

    I would also like to point out that once an attorney makes contact and portends to represent a party, contacting that party directly will usually ruffle the feathers of the attorney. Hiring an attorney, with clear instructions that you want to start with a response letter from your own attorney, may be all that is required to quiet the other party. However, only an attorney who has thoroughly evaluated all the details of the situation can answer those questions.

    After all that has been written here by people, from what I read, the usual lesson applies to anyone who reads this thread looking for something to glean from it. The morale of the story is that every photographer, amateur or professional, needs to have photographic subjects sign a contract with them before taking their photograph. Without a written contract that contains clear specifications of rights, liabilities, waivers, indemnifications and so on, the headaches above, and all too often lamented in threads on sites like this, far too frequently follow later.

    By the way, I think it is also important for John Henneberger to disclose that he is an attorney and that his casual discussion here is not him providing legal advice.
     
  15. Legal right or not; I would consider the sensitivity of the family over your own interest and withdraw the images. After all you can create another image.

    You could get into serious legal problems with high cost and stress; so just put this down to experience.
     
  16. Thank you for your concerns Summer. My only advice has been and is for Mr.Slusher to obtain counsel.
     
  17. This is why a model release was created. Two very famous cases come to mind. (1) Vanessa Williams a former Miss
    America posed nude and did some sexually oriented shots. Photographer sells images is sued, wins because of the
    release. (2) Photographer shoots Cameron Daiz tries to sell images without a release is sued into the ground to make
    matters worst he forges release and is placed in jail.

    You have two fronts you are trying to fight, both are of your arguments are falling apart with out the release. These shots
    that you have posted could be consider advertisements for your services, yes it is broad but lets say you posted on
    modelmayhem.com. That is a site promoting yourself as a photographers and models promoting their services. These
    images would be consider commercial because they are advertising your services.

    With case law being what it is without a release all the model has to state is that these images were for private use. You
    have no witness and even if you did the Judge would most likely side with the model.

    My advice is simple pull the images and get a lawyer. For at this moment you are trying save financial damage to
    yourself.
     
  18. Ralph Berrett: Has given you some very good advice follow it and you will stay healthy : less grey hairs this way:
     
  19. "it is difficult to say... ...that the model didn't consent to pose or to be taken in photos"

    Have you given any thought to the difference between a shoot and a display of the shoot?
     
  20. Get legal advice from lawyers. Model releases can document a number of different sorts of permissions. One is use in a promotional situation, the individual's right of publicity. They can also document that the model has approved publication or uses that might seem to have crossed over into uses that may involve the model's privacy rights.

    Copyright may allow you to display or publish works, it doesn't provide any protection from the consequences of infringing on another person's rights. The 1st Amendment, likewise, does not provide blanket protection from the consequences of infringing on another person's rights.

    One should not accept general business advice from non-lawyers as applying to the specific's of any given legal situation. You will probably (or should have) noticed that sites prepared by attorneys typically point out that their information should not be taken as legal advice applying to a specific situation either.

    Lawyer up!
     
  21. Model release grants you use of the images commercially and sometime covers all possible uses. Problem is, you can still get lawsuit regardless of model release or not. Even if they lose in court it will cost you so much time and money, that pictures probably not worth it. Take your losses and remove pictures, hire another model and reshoot. I know it is not fare, but ...
     
  22. If the young woman was under age at the time of the session, I think you need to contact an attorney.
     
  23. Please contact a lawyer to help you with this situation.
     
  24. I know that this has been put forward as a legal question first and foremost; and clearly Scott you believe you have
    every right to continue to publicise these images, and to the extent that you believe that if this went to court you
    would win.

    I have always believed that talking to people face to face has some value over dragging everything through the courts,
    and can often save a lot of grief if things are handled the right way. That said, your dogged belief that you are right
    seems to have over-ridden this basic art of communication and is probably why you are finding yourself with a legal
    challenge.

    I personally still cannot understand why you would wish to continue using images for public display when your model
    is so apparently unhappy with you doing so (regardless of how good the images may be).

    It may be worth considering how you might feel if the model in question were a member of your own family.

    You have told us that photography is not your profession; in my opinion this is all the more reason to not get yourself
    into debt and trouble over something that you can remedy easily at the moment: remove the images, do the right
    thing.
     
  25. I agree Jo. The time to consult with the subject of the images was when the relative called. This artistic integrity and "good body" of work rationale and summary refusal was unfortunate.
     

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