Ethics? Stolen photo?

Discussion in 'Business of Photography' started by tim_ziegler, Nov 29, 2011.

  1. So I was recently questioned about a photography ethics situation. A local professional photographer had set up a shoot for Christmas. Trees, props, Santa, etc. Subject "N" was attending this photo shoot with her kid. As the kid was posed and the pro started working, subject "N" also started taking photos with her own camera. This happens all the time, but this time the mom in question (subject "N") is also an aspiring photographer and decided to post the shot she took on her own photography website. No mention of the pro's setup etc. "N" claims (since it came from her own camera) that it is her photo. So is it "N"'s photo? Or is it the pro's photo because it was her set-up?
    Any help/comments you can give in this matter is greatly appreciated since I know both of the parties involved, and it's gotten quite sticky!
    Thanks Tim,
  2. It is her photo (subject "N"), since she took the image. But, it is completely disrespectful and should not have been done. If anyone went through the trouble of setting something up, including lights, backdrops, and the sorts, no one else should take photos of the subject. "Behind the scenes" shots aren't so bad, but blatantly using someone else's set up is.
    And, if this image is a "stand out" image in her portfolio, it doesn't speak well to her own abilities. If it is the best looking shot then hopefully people will see all the others and decide this person isn't that great after all.
  3. Tough call - legally, it is her photo, she took it and owns the copyright and since it is her kid, she can post it.
    Calling it an example of her work is a bit of a stretch, since all she did was push the button. She didn't setup the lighting, arrange the backdrop, props, or Santa.
    Personally, I would not post it as an example of my work. I've done similar a few times with a mall Santa, but in each instance we did make a purchase from the kiosk, and used the photo I shot of our kids for items that they didn't offer at the kiosk (Christmas Cards). Never did I even think about posting on my website or other pages as an example of my work, since the mall staff had arranged Santa, etc..
    Again, technically it is her photo since it was her camera, and she pushed the shutter release, and framed the image. But, it's a stretch (IMHO) to show that as an example of her work, since if I'm a customer or potential customer, I may be lead to believe that she either has or can get all the props, backgrounds, lighting, etc... And knows how to use them.
  4. Mom may own the copyright of the photo, but the "copyright" of the set design belongs to the person who designed it. Seems mom did not pay a fee for her use of the set, so. . . . . . pay a fee or pull the photo.
  5. Like Zach said, the photo is hers since she took it. However only a lowlife would do something like this. Many times, the pros who run the photo booth will set it up so that parents cannot easily take pictures to stop people like this. While I usually don't care for these photo setups because the quality of the pictures is usually pretty crappy, this mom is completely disrespectful.
  6. This kind of situation happens so often that it is amazing to me that a professional would be expending too much energy fretting over rights, ethics, theft, etc. The OP did NOT state that the "aspiring photographer" is representing the picture as anything other than a cute snappy of her kid. We ALL do things like that -- take cute snappys of our kids in good looking environemtns, using lighting that we did not set-up or control.
    If said professional is so concerned that someone might use his set, then he/she should arrange for a closed set. If said professional didn't want others at the photo shoot using his/her set, then he/she should have had agreements in place indicating the role and allowable behaviors for those in attendance. In reality, the professional should have said, "please don't shoot using my set" and get on with his/her work.
    I've seen that situation many, many times at the mall when Santa appears. Many professionals in that environment (making money by selling prints) once shooed away anyone who popped up with a camera. That's their right, and anyone who persists in trying to take a private picture on their set after being asked not to is a jerk. But did they "steal" anything -- no. What loss or damages did the vendor incur by the jerk's behavior - nothing really, except that their pride and sensibilities were offended.
    What I've noticed in the past couple of years is that many Santa photo vendors in my area now invite parents to take a picture with their own camera. And what's funny... the parents seem to also buy the prints from the vendor also.
    So regarding this "sticky" situation... maybe the professional you mention needs to be reminded that one catches more flies with honey than with vinegar!
  7. All the rest aside, the illegality may be in the fact that the image was made on private property without permission, and subsequently published without a property release.
  8. And: does she have a release from the Santa actor? If she's using it promotionally on her site, that's a show-stopper, right there.
  9. ... interesting to note: Santa's not the one complaining and expecting compensation/restitution/credit/acknowledgement/satisfaction.
  10. comments you can give in this matter is greatly appreciated since I know both of the parties involved, and it's gotten quite sticky!​
    The more important, but unasked, question is why get involved? If you must, it can be suggested to "N" that it would be polite to mention the set up and to tell the Santa photographer that its not that important to get too upset over. i.e. grow up people.
    I'll save discussion of a set-up being copyrighted for another day.
  11. Bravo... a well stated response. I could not have been so succinct.
  12. I think it depends entirely on the use of the image. If it is for her personal use, more power to her. She is absolutely free, legally and ethically to take pictures of her own child. It would seem to me she is also absolutely entitled in every respect to record the event of the professional photographer taking pictures of her child. The set would really have to be something special for the pro to have any copy protection in them.
    If she is using the images commercially, she has the same issues all pros do -- does she have the release from everyone in the images for the intended uses? If a professional is shooting in any kind of setting to which the public has access, this sort of event will occur and the photographer does not have a lot of legal or ethical grounds to stand on. This is why sets are closed! The only way to truly protect the intellectual property rights is to control access. If access is not controlled the person standing right next to the photographer has all the rights the photographer does -- subject to the releases, of course.
  13. it


    If that is what N has to do to get decent shots for N's site, I can't imagine N is going to have much of a photo career. I would just forget about it.
  14. I belong to a photo club that regularly holds portrait parties. Basically we pick a theme, and then build a set and get people in appropriate costumes to pose for any photographers that chose to come that evening.
    We build the set, our members light the scene, and if the model is to be paid, it comes out of our coffers. However, the guests take the photos. As has been said, we (the club) have no inherent rights to the photos that are taken. We do ask that guests label all photos as having been taken at the Adirondack Photographic Society, but we don't have any legal rights past a polite request. We let them in the door, and then they took the photos that they took. There might be a case for licensing (ask one of the Johns) since we did most of the work and were not working-for-hire, but no matter how you slice it, the guest owns the rights to the photos.
    As mentioned, the only possible recourse I can think of is the lack of various releases leading to a cease-and-desist order if the photos are used professionally.
  15. If she is using the images commercially... ...does she have the release from everyone in the images for the intended uses?
    the only possible recourse I can think of is the lack of various releases leading to a cease-and-desist order if the photos are used professionally.​
    These are an issue for the people depicted to assert if they can, The photographer has no standing. I wouldn't give the photographer more pointless reasons to fret over this silly affair.
  16. People take pictures on private property without direct permission and without property releases all the time. That's a non-issue. Unless, of course, one thinks that wedding pros have "property" releases from all the venues they've shot, blogged, included in their ads, etc.
    Malls or other businesses setting up Santa shoots can restrict photography but that takes notices, barriers, eternal vigilance. Some do, many don't. It can depend on who is making the money and who has spent the money for the set-up. If all the business wants is to get families into the "mall," then the photographer needs to be wary and look out for themselves, in pricing, set design (photo angles), etc. If the photographer needs to make the sales to make the money, they need to control the environment or cut a different deal. If it's her "private" shoot, whence cometh the kid and the access to Santa's lap?
    The child isn't going to sue Mom for infringing on her privacy rights. Santa? I doubt there's anything going to come from him in this either. Assuming one could establish him as readily identifiable?
    It's a matter of poor taste and poor judgement but new pros have been known to go to outlandish measures to build "portfolio."
  17. Oh,yeah, it's probably best to do everything you can to stay out of the fracas between the other two photographers.
  18. In our local-area mall, you would likely be *hammered* by mall security for toting and (gasp) using a camera on the mall property. That posted rule limits the would-be photographers from snapping a shot of their kid with the mall's Santa setup for Christmas...
    Now that everyone with a cell phone also has a camera (in most instances,) I don't know how the mall security folks will cope with it this year.
    The photographer who set up the background needs to make a sign or two (property of S.L.H. Photography, Phone ###-###-####) in the background, so if it happens again, she would *maybe* get some free advertising. Or hire a couple of tall basketball players from the high school to create a barrier for those wishing to shoot from the side area.
  19. All the rest aside, the illegality may be in the fact that the image was made on private property without permission, and subsequently published without a property release.​
    You don't need permission to take a photo on private property, nor do you need a property release.
    A land owner may forbid photography by posting a notice or just informing you that it isn't allowed but until you are notified you are legally allowed to take photos.
    Dan Heller's blog has an interesting post on the topic of various photography myths - scroll down to number 4 and 5.
  20. My experience is that this kind of behaviour is unfortunately quite common amoung photographers, amateur or professionals.
    E.g. some years ago a well-known glamour photographer in the Netherlands organized a demonstration in his studio with models, a make-up artist etc. for his collegues of a Dutch organisation of professional photographers. Afterwards a number of the used pictures they shot while he was taking photo's of the set organised by him on their own websites, taking all credits and without mentioning him and ignoring his (copyr)ights. From a legal point they took the pictures, and were allowed to take some snaps, but the organiser never expected them to be so shameless to use the pictures as decribed. Obviously he never did that again.
    I myself got burned many years ago when I was still a student and organised a shoot with some model friends and make up artist. I had met a socially handicapped photographer (you know the type, clumsely hanging around and hardly daring to speak to anyone, let alone the models, with as sole activity looking in the camera and checking an resetting the camera all the time) whom I allowed just for fun and admittedly out of pity to take some shots as well of the sets I made. During the shoot he to my surprise in strong words refused to give any assistance when some equipment broke down, which should have warned me. Later it turned out he used the pictures I had allowed him to shoot for his exam portfolio at the institute he was studying at, which were even selected to represent that school in several adverts.
    Having that experience some years ago I refused a high profile amateur photographer to organised several shoots for him, where he expected me to take care of the models, styling, make up and technical support, while he wanted to use the pictures afterwards for an exhibition he intended to organise for himself. He was quite cross to say the least when I told him so, as well as of the costs it would take him, as he expected all this would be done for him for free.
    So yes, some photographers have a brick wall in front of them, thinking themselves as (great) photographers while they expect others to organise everything, do the technique etc, while they only do 'click' without any input or creative idea, just sniping around and IMO stealing the pictures. Only solution is closed sets, signed forms, or just kicking them out, all IMO of course
  21. It's N's photo, but it sounds like it was done in poor taste. The local Pro should probably just view this as a compliment to his setup. In the end, I think that this really should not be a surprise or a shock to anyone anymore. I'd bet that at most weddings these days there is at least one aspiring photographer who is snapping images of the Pro's setups or poses and using them as examples of their (the aspiring photographer's) own work. It's the state of things these days, and we should probably just accept it and move on (as long as the aspiring photographer is not in the way or causing a distraction, of course).
  22. It's not a "these days" issue Jeremy... it's been going on for a long, long time.
  23. We ALL do things like that --​
    No, we don't. I have never even taken a camera to another photographer's gig, let alone take one, use it and publish the images. The fact that this is a photographer shooting Santa at the mall is not relevant nor does being capable of reproduction give someone the right to infringe on another person's livelihood.
    If I knew the woman I'd berate her, tell her in no uncertain words to take down the image and suggest the next time she wants shots of her kids- do it herself. Once a shooter is to the point of publishing they need to stop being such hacks, exercise some restraint and hopefully show a bit of class. I won't hold my breath.
  24. Wow, lot's of lawyers (or wannabees) on this site. Amazing there aren't more lawsuits regarding photography. Like there aren't real problems to deal with in life...
  25. but the "copyright" of the set design belongs to the person who designed it.​
    But she didn't make a copy of the set, just a photograph of it. Infringing the copyright of a set would involve making an identical (or very similar) set.
    In the same way that a photograph of a building does not infringe the architects copyright of that building but constructing another similarly styled building does.
  26. It's only ever going to be N's photo. If the Pro is a real Pro she shouldn't even give it a second thought - but it might be worth her adding a line to any web site she has which says 'Set design by Pro' - it's clearly that good that she may be able to make some folding notes helping out amateur photographers with some set design.
  27. If I go to a museum and take a really good picture of an Ansel Adams, does it make it my own original? I don't think so.

    Let me share an incident that happened some years ago. A photographer I knew sold his business (with all equipment and photos in the store) as he was getting near 90 and too old to keep up anymore. The lady who bought it changed the name of the business and continued to display the original owners work in the windows for years. When customers came in, she even went as far to use the old man's older albums (which were left behind), to present what they could expect from her studio. To make a long story short, the studio only lasted 2 yrs. If you show a client something they can expect and don’t have the experience or knowledge to actually deliver, it’ll come back to you eventually. The man who owned it before had around 60 yrs of work. She had maybe 3. People will know in a matter of time weather she really set that shot up or not, or was just lucky.
  28. Many compnaies, when sold, include in the sale their name, intellectual property and "past performance"... essentialy their reputation. It is not unusual. But it is really only valid if the new owner can maintain the standards of the past work.
  29. Just 2 weeks ago, I assisted a pro in the same type of shoot. This pro gives parents plenty of opportunity to take their own photos of his set up. A few of the customers had nicer cameras than I do. The customers pay up front, so the pro, Santa, and the organization are not "out" anything by the parents' taking their own photos of the set up. So there's no question that the parents own their photos. And I'm sure a number of the photos ended up on facebook. However, posting the photos on a commercial web site is different. I don't think it is right for "N" to post the photo without giving credit to the pro for the setup - if in fact that is what she did. To do so would give the impression that "N" does that kind of work commercially, when she apparently doesn't.
  30. Some of this does get out of hand from time to time. Many years ago I was doing a garment catalogue shoot for a national account at a race track location. In the background and out of focus was a horse. The owner of the horse sued claiming I never got a release to use the image of the horse - he wanted $5,000. This was over 40 years ago. The suit was dismissed and the claim went no where and I didn't pay anything. But, this just shows how crazy this issue gets at times. Since then I went on to law school, practiced for 30 years and am now returning to photography as a hobby and finding it a lot more fun.
  31. Granted, the woman's claim that this is her photo is reprehensible in the extreme and she is basically a thief of intellectual property. However, it's a fight that no one can win.
    Prevention is a key here and one old wedding photographer I heard talking one day many years ago, had a great solution to the posed portrait shot-nappers. He always used a multiple light set up and simply attached small slaved flashes like the Vivitar 283, to his stands and pointed BACKWARD toward the crowd.
    Sad how such flashes firing directly into the lens creates so much flare.
    Perhaps the Santa set up photographer might consider the same solution.
  32. I have no problem with what this woman did - none whatsoever. I do have a problem with a photographer whose ego is so fragile he can't stand another photographer standing next to him. Ever seen the sideline at a major sporting event?
  33. Phil hit the nail on the head! Our local Malls collect a basic sitting fee for every kid on Santa's lap, then immediately after the shoot, you get to look at electronic proofs on computers set-up at the same angle as the studio camera. A minimum purchase is required in advance to get onto Santa's lap, so everybody wins!
    One more thing--sort of like using that 283 for flare......not every big umbrella has to have a strobe head that's actually turned "on". This gives the "Mommy Snappers" a side image taken from behind the fence, not the same image as what the studio is selling with both Santa & the Kid looking into the camera.
    There's more than one way to skin a cat!

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