flower girl's mother said I did not get her permission to use her daughter's photo... did I need to?

Discussion in 'Wedding and Event' started by tara_lindsey, Nov 29, 2009.

  1. I shot a wedding a couple of months ago and the couple signed a contract that states that I am allowed to use the photos from the wedding for promotional and advertising use. The flower girls mother just sent me an email telling me to remove a photo of her daughter from my online portfolio and that she never gave me permission to use her daughter's photo. Did I need to get permission from her? She saw me take the photos, and never said a word to me at the wedding. The girl was the flower girl and was going to have her picture taken no matter what. There is nothing on the photo that says the name of the child or anything like that. I am a parent so I do understand that she may not want her children's photos up all over the internet, but my daughter has been the flower girl in 3 weddings. I knew and expected her photos to be used in a photographers portfolio or displayed somewhere on the photographer's website. I also have never been asked by a photographer at any of those weddings to sign a release.
    I don't really know what to do, I would just take it down and I probably will to make her happy but I like the photo and I want to know if I had the right to use it in the first place. If not I will take it down immediately.
    Thanks for your help.
     
  2. The bride and groom cannot sign away the rights of the flower girl. This is based on US law. You need to take them down or have the mother sign a release.

    The law does get a bit sticky, because a wedding is often considered a public place, therefore people can expect to be photographed. It's not worth the stress or the money to figure out your rights through an attorney.

    It is wise to take the images down off of your site.
     
  3. Maybe try to reason with her. If you're nice enough, you may not only get permission but possibly a client. I have a flower girl photo I haven't posted yet, but I was working for another photographer at the time, and have no specific rights at all; it was going to be a fingers crossed situation that I never heard from the mom! Try not to be defensive, but more complimentary, because it really is flattery that you chose that photo!
     
  4. I'm sorry, but the idea that you should throw an image up and hope not to hear from someone whose permission you need is beyond nonsense.
    Tara, as Bob pointed out, the bride and groom cannot give you permission to use any image that contains a person's likeness other than the couple. So, unless the bride IS the flower girl's mother, you have to remove the image. In fact, it should never have been posted at all.
    She saw me take the photos, and never said a word to me at the wedding. The girl was the flower girl and was going to have her picture taken no matter what.​
    The purpose of a photographer shooting pictures at a wedding is not to build your portfolio, it's to capture the day for the couple. If I go to a wedding and my table at the reception is photographed, my expectation is that the images may or may not be used in the couple's wedding album. I have no expectation, nor should I, that the images will end up being used commercially.
    You had no right to use it in the first place (for that particular usage) and should pull it immediately.
    If the picture is really good, then here's what I would do: knowing that the mother is not wanting her daughter's image on the internet, ask if I can use the image in a print portfolio instead. I may not actually need such permission based on the right of privacy/right to publicity laws of the state I live in (or shot the wedding in) but, in this case, I would definitely ask for, and receive, permission.
    If she says 'no' then don't use the image.
    Remember, beyond the legality of whether or not you can use it, wedding photography is an industry where word-of-mouth is a critical form of advertising and you want to stop this mother from spreading a bad word.
     
  5. I agree with Bob and Rob...........also, remember that P-net is a public forum and anyone that googles your name will see this thread referenced. Welcome to P-net.
     
  6. Thank you for all your help and I will remove the image and then ask her to use it in a print portfolio, which I use as well.
     
  7. Unless the image is being used to explicitly or imply the indorsement of a product, service or cause the image can be used without permission. The image was taken where there was no reasonable expectation of privacy. Using the image to promote your business is not the same as having the person in the image endorse your business. The image is an example of your work, the girl is not endorsing your work.
    In spite of what people think an image taken where there is no expectation of privacy allows that image to be displayed or used as long as it is not endorsing or promoting a service or cause. A wedding is not a location where a reasonable expectation of privacy would be considered. The mother does not have a leg to stand on and you can go tell her to pound sand as there is nothing the mother can do. She will never find a lawyer to take the case and a small claims suit would be tossed in your favor. As the mother to cite the specific law that she is claiming you are violating. Just because the mother thinks it is against the law does not make it against the law.
    But do you really want the mother bad mouthing you to everyone she finds? The mother is clueless but that will not stop her from telling her other clueless friends. Your best recourse is to remove the image or mask the face. Don't even seek permission from the mother as the mother is probably going to ask for money.
     
  8. Well Tara, after reading Rob's post and Raymond's post, you should now be coming to see why it's best not to ask what is essentially a question of law on a photographer's forum. And if you do, remember that the answers come from people who are wholly unqualified.
    Also bear in mind that the vehemence with which a point of view is stated and the strength of language used to express it bears no relationship to the correctness of the answer.
     
  9. Agree with Alec 100%. Oh, and my step-son is a 2nd year law student. Does that mean my comments should be given more wieght? Um...... no. :)
     
  10. Using the image as an example of your work, on your website or in a print portfolio or on your wall, etc., promotes your business. While there may be subtle differences from state to state as to what you can do without explicit permission, generally speaking, portfolio or website uses are commercial. A gallery that is used to display/sell the images can use the images - an image can be used to sell itself. If the use is artistic/editorial, the use doesn't require a release (like the local fishwrap running a series of shots of the Jones wedding on the society pages, etc.)
    You need to find out the way the laws work in your state when it comes down to the details. But no state that I'm aware of allows anyone but the individual (or parents, etc., for minor children) to sign off on that individual's privacy/publicity rights.
     
  11. There really are two questions here - usage and privacy.
    The usage question will be debated endlessly - as to whether or not using a photo in a portfolio is "commerical" or an "endorsement" - As Craig and others have pointed out - only the subject or the parent / guardian can sign away the usage rights for a photo - meaning bride and groom can't sign away anyone else's rights.
    The second is one of privacy - we as a society are especially in tune with the usage of "minors" and the photography of the same in any setting. Parents are always on the lookout for images of their children on the web and are very sensitive to images of their children a) being taken and or b) being shown - for any purpose - on the web. Did the mother forfeit the right / expectation of privacy by having her daughter be a flower girl in the wedding? Debatable - since, unless the wedding was in a public park or other "public" location, it was probably an invitation only event.
    I'd say that about 90% of us (wedding photographers) have wording in our contract that says something to the effect of - we reserve the right to use the photos in promotion / publicity of our business. In 5 years of doing weddings / events, only once has a client (a lawyer no less) stricken / struck that provision from my contract prior to signing it. 99% of the time - the parents or subjects of a photo either don't know the law or don't care about it. And I'd go even further and say that 99% of the time - the 1% that do know the law and rules aren't going to say anything about it to you anyhow.
    So - you got the .01% of the population that knows the rules and said something about it! I think you're taking the right approach by pulling the photo and talking to her. Maybe a print or two for her would be enough to sway her to allow you to use the photo.
    Of course the other, darker possibility is that there are legal or personal issues as to why she doesn't want her daughter's photo on line. I've had cases where I was told not to talk photos of certain competitors at events or if I did to not post them due to restraining orders and custodial issues.
    Dave
     
  12. You could leave the photo up and just blur the face of the flower girl with photoshop.
     
  13. The flower girls mother just sent me an email telling me to remove a photo of her daughter from my online portfolio and that she never gave me permission to use her daughter's photo.
    This is really a non-issue. Why would anyone argue with a mother wanting her child's photo removed from public view? (Even if you have every right to show it). Should you refrain from ever doing it again? Of course not. Just take this one down right away and tell her you understand.
     
  14. I agree with RT Jones ... why drag it into the shark tank and chum the waters? Just remove it and let go at that.
    Doesn't mean never put up another image for your portfolio because you didn't get releases from all 200 people at the wedding. If that ever becomes the case, then all wedding portfolio photos will be of the B&G only, with everyone else blurred out like they were in the Witness Protection Program or something ... LOL!
     
  15. I agree with Raymond.
     
  16. I agree with RT. If someone doesn't want thier kid's face posted on the Internet, the respectful thing to do is either remove the face from the photo (blur the face, mask the kid out, crop the photo, etc), or take it down.
    Remembering that the business is largely based on referrals; you should ask yourself, is it worth it to anger a possible future MOTB over a single photo that you want to use in your portfolio and self-endorsement.
    Then answer should be clear.
     
  17. The California case of KNB Enterprises v. Gregory W. Matthews discusses federal copyright pre-emption issues in the context of endorsement vs. non-endorsement use as to rights of privacy/publicity. Read carefully, very carefully.
     
  18. An easier read is Montana v. San Jose Mercury News, Inc. (California 1995) where, among some bigger issues, a newspaper had right to republish stories (including a picture of a sports figure) in commercial manner to show the quality of its work product. This is the closest I have seen yet on the issue (in California at least).
     
  19. yes blur the face or all of her if its the background. as silly as it sounds the person has to be without reasonable doubt ID'able and bluring solves this.
     
  20. bluring solves this.
    In a 'we had to destroy the village in order to save the village' kind of way. Bluring will destroy the whole point of using the image.
     
  21. I agree with RT, but I like Marc's answer - paragraph 2! I vote for Marc. :eek:)
     
  22. John -
    I was waiting for you to weigh in on this... thank you.
    Although she legally has the right to use the image for promotion, based on precidence, she probably would get better word of mouth publicity by doing as the mother asks.
    Although - that too is going down a slippery slope, since the mother will now think that she is right... sigh...
    Perhaps something along the lines of "Legally I don't have to remove the image, but I will in this case since it is causing you concern." or perhaps even better worded...but conveying a similar message.
    Dave
     
  23. Thank you all for your responses! I really do appreciate them! I never thought I would get so many because I just joined after lurking for like 2 years (sorry). I removed the photo and was leaning toward doing it when I asked the question because of what some people mentioned.. word of mouth. I didn't want to upset her. I never meant to. I kinda just wanted to see if I "had to" by law or anything.. or if I was breaking this huge rule I was unaware of. I always thought that they were aware that a photographer might end up using the photo for something. I will be more aware now and will ask parents next time. I always ask about portfolio usage when I do portraits but this was a wedding. This is the first time I have ever delt with someone asking me to remove something. I have had some other events that they requested the photos not be used for my portfolio and I of course followed their wishes!
     
  24. What about a photo of the bride and groom and the flower girl is in it? Can the mother ask the photographer to take it down? Or if it is from the back of the child so the face is not facing the camera, should the photographer take it down if the mother asks him/her to? I mean from legal standpoint and not business standpoint.
     
  25. "Unless the image is being used to explicitly or imply the indorsement of a product, service or cause the image can be used without permission." But a minor child use-of-image requires a signed release by a parent or guardian. Or you may take your chances -- the cost of a lawyer for a concrete answer would be a valid business expense, along with anything a judge might award if the girl's mother decides to find her own lawyer.
    As noted above, remove the image. Then contact the flower girl's mother and see if anything can be worked out.
     
  26. http://library.findlaw.com/1998/Feb/1/130405.html
    has this to say about Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 40 Cal.Rptr.2d 639 (Ct.App. 1995) .
    "In Montana, the California Court of Appeal affirmed summary judgment against football star Joe Montana's claim that a newspaper's poster reproducing its Super Bowl cover story violated his Section 3344 and common law rights of publicity. Noting that Section 3344(d) does not require consent for use of a "name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign," the court held that 1) the posters represented newsworthy events, and 2) a newspaper has a constitutional right to promote itself by reproducing its new stories."
    The flower girl wasn't originally in a news story published about the wedding. The use was not editorial to begin with. I suppose you could manipulate it that way but I wouldn't count on it. The image can be used to sell the image. Note that Monana's posters weren't being used to convince you to use the San Jose Mercury News to shoot your wedding. However, suggesting the mother doesn't have legal basis for asking for it to be taken down is just asking for her to find a lawyer and take you up on that and it will be adjudicated under your local laws.
    On a side note, that link has the Ca. Civil Code section which includes this:
    (1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.
    Again, this is the Ca. code so this standard may not apply to other states. I'd expect that these days there will eventually be some sort of criteria for on-line uses but this suggests that the "picture" would be viewed in court at the size it appeared in print. That is no enlargements, magnifying glasses, etc.
     
  27. Thanks Craig. So, for your websites, do you use only bride and groom pictures or in case of other people such as the flower girl or ring bearer or wedding guests, you ask permission from the parents/person or not put those pictures at all? The thing is, we sometimes find great pictures during the processing and at that time, we may not know how to contact the parents or guardians or even the person in the picture although we may ask the bride and the groom. Or just put those pictures and if there is complain, we just take it off? May be we better be playing safe. Too bad, because those children are so cute in the pictures.
     
  28. Ferdinand -
    I don't live in CA and I use the images I want from the wedding for my portfolio, unless the couple has specified otherwise. As I mentioned above - I've had that happen one time in five years of using that contract.
    If someone contacts me regarding removal of an image -- I will work with them to get signed releases or rights to use the photo. If we can't come to agreement, I'll take it down. Knock on wood - This hasn't happened to me - Yet.
    Dave
     
  29. I suppose lots of parents are unaware that their kids' pics may be on public websites. If that changes, then I suspect more photographers will receive requests to take down some pics.
     
  30. Why does everything have to be a matter of law and why do so many issues have to turn into disputes?
    Talk of signed releases and resolving disputes is just plain silly.
    A mother would rather you didn't use a picture of her daughter on the web. You say "Okay, no problem. I'll take it down."
    End of story.
     
  31. The flower girl wasn't originally in a news story published about the wedding.
    A good point. Indeed, this distinction is why I mentioned that the case is the "closest" I have seen on the topic (in California) rather than a more bold statement that it seems to settles the matter If I have time, I'll look at whether the opinion seems to make the work quality demonstration grounds stands on its own as editorial use or needs to be linked to the original news event publication like other grounds were. I agree with the comments that it practical to just make the mother happy especially since its just one image.
    What about a photo of the bride and groom and the flower girl is in it? Can the mother ask the photographer to take it down?
    If someone has grounds to demand that a use of an image of them or their child be discontinued, its not going to matter whether other people are in the image (unless its a "face in the crowd" type exception which is not like your example). If your face were shown in an ad endorsing a product, do you really think that the fact that the other two people gave permission for the use of their likeness is going to mean your permission is not needed? One can't just sign away someone else's rights unless they are a parent, agent, conservator ect.
    As usual, I'm not giving anyone legal advice. Just commentary.
     
  32. John Mottershaw , Dec 01, 2009; 08:31 a.m.
    Why does everything have to be a matter of law and why do so many issues have to turn into disputes?​
    Well I would say because the rights of others are being trampled by those who think they know the law and want it their way when in fact they are incorrect. I think this goes along the lines of the security guard from the local bank running out of the building telling you cannot photograph the building because it is copyrighted even though you are on public property. Or the over zealous police who stop people from taking a picture of a bridge or a military boat in a harbor then demanding the memory card when the person taking the image is clearly on public property.
    If these misconceptions are left to continue then the urban myth will become the standard. That will be a sad day indeed.
    Regarding the situation of the image the mother has no legal grounds for anything, no compensation, no recourse period. The mother needs to be told this. But the bad word of mouth is not worth it and the image should be removed while explaining to the mother that she is legally in the wrong and that the image is only being removed out of respect, not the law.
     
  33. Telling the Mother she has no recourse, and taking the image down will not stop negative word of mouth. Parents protect children. It's what they do. Conversely, 5 or so lost clients shouldn't brake the back of your business. Take it down, solicit new business with clients who concur with your business practices.
    J
     
  34. While a wedding is considered a "public place" for the purposes of US law (as it pertains to images/pictures created), if you were hired to shoot, you are subject to another set of rules.
    In short, what Bob Bernardo says is sage advice IMO.
     
  35. I think some religions have this type of thing covered so that it will not occur. Remove the image, I can not see that any photo would be worth the stress. Feel sorry for the child and mother.
     
  36. Why is there such a lack of common business savy on these topics? Turn a negative into a positive. Whether you had a right to use/not use the picture is moot. The girl's mother knows the b/g and is likely a part of their inner circle. Send the mom a personal note that says I've removed the picture at your request. Here's a complementary 8x10 photo of the child and discount coupon for holiday/school/whatever portrait sitting.
    If you feel you need to justify your position, add a paragraph that states the common practice among photographers is to showcase their work and you had an agreement with the b&g to post pictures of their wedding for other guests and those unable to attend to enjoy reliving the event. Then advise her your sorry for any miscommunication and you have notified the b/g (your clients) that at the request of the child's parents you removed the picture from your site.
     
  37. I agree with Mark!
    Is your legal right to have that perticular photo that important to your portfolio? If it is, meet with mom holding your hat in your hand apoligize profusely and come to a mutuial agreement with her.
    In busness a rule of thumb is: Litagation is a lose, lose propasition. If you were to go to court and win, you would lose in the court of public opinion. Public opinion is where your bread is buttered.
    Make peace with mom, meet with her face to face, and I personally like Mark's sugestion because that's your best chance to win in the court of public opinion.
    Besides it'll be a lot less expensive that an "inexpensive" attourney and will get your more work
    wlt
     
  38. I don't have anything to add to all the other common sense replies, you did the right thing by taking it down. My thought is the FG's mother is probably pissed, she probably assumed she was getting free pics from the B&G, and got none. I've seen stuff like this happen before, family relationships, it's 99.9% based on money and assumptions. The FG mom in her passive aggressiveness thinks she is punishing the bride by requesting the photog remove her kids pic. Man I don't miss wedding photography at all.
     
  39. Just as a point of interest, here in the UK we are less legally bound. Virtually ANY photograph of a person taken in a public place with or WITHOUT the subject's permission can be used in just about any way you please. You are only breaking the law if you are doing it as a form of harrassment or using it as a way of damaging someone's reputation. I'm sure there are other techinal exceptions but I think this is the general rule.
    Having said that, if I was contacted by some who wanted their image removed from my website I would just remove it. There's no point upsetting a client and risking the image of your business over such trivialities.
     
  40. According to the US Copyright Law, the flower girl's mother has no right to demand that you remove the photo of her girl. You would only need a model release in case of the photo being published (i.e. in an online news source, or a book). You took the photograph, and therefore all ownership as well as right to distribute is yours (unless you waived or transferred those rights as part of your wedding photo contract). Displaying the photo on your own site does not constitute it being published. I'm sure other people took photos of the flower girl, and I'm sure those people shared that photo via e-mail or blog. Did the mother demand everyone who photographed her daughter to cease the image's distribution?
    If you'd like to be on good terms with her, do it as courtesy, but know that you certainly do not have to.
     
  41. You might offer to take the photo down for a fee, then use that fee as a down payment toward a family photo session for the holidays!
     
  42. In Calfornia, the right of publicity, Civil Code Sect 3344 is clear. If you use the flower girl on your website advertising your services, you'd better have prior permission. The law, codification, common law, etc., does vary in detail from state to state. As I'm not a professional photographer, I'm not selling my services so any postings I make from invited or family functions, etc., don't need releases. But that doesn't mean I'm casually or negligently unfamiliar with the relevant code sections where I am.
     
  43. You might offer to take the photo down for a fee, then use that fee as a down payment toward a family photo session for the holidays!
    Wow. I'm not quite sure how to react to this. I can't tell if you're serious. :)
    According to the US Copyright Law, the flower girl's mother has no right to demand that you remove the photo of her girl.
    But the issue here has nothing to do with ownership rights. The mother is not claiming the picture as her own work. She's just asking that it be removed - not turned over to her.
    here in the UK we are less legally bound. Virtually ANY photograph of a person taken in a public place with or WITHOUT the subject's permission can be used in just about any way you please.
    It's the same here in the U.S. but I think you'll find that even churches in the U.K. are not properties owned by the public. Somebody's name is on the deed and it isn't the government. And unless the OP's wedding took place in a public park or the janitor's closet of a local courthouse then the mother has all the rights bestowed her under the law.
     
  44. I would delete all her images from the album. Lets see how the mother would react when her daughter is ignored completely.
     
  45. I don't miss doing weddings either, but I do miss the money. I have never had a problem with a Bride or Groom, but the mothers are a whole different story. In this case I would just remove or stick a different face on the flower girl. Of course before I did that I'd contact the mother and ask what she would be willing to take(money wise or service wise) for the use of her daughters shot in your portfolio. If she comes up with a sum I would then say, "No thanks, I just wanted to see how serious you were about protecting your daughter." I would then tell her the picture of her daughter has been removed. I guess I'm just a smart a$$, but I like to get people to think about their actions sometimes. JohnW
     
  46. The flower girl wasn't originally in a news story published about the wedding.
    Following up on Craig's observation, I looked at the full Montana case and the quality of work demonstration of the newspaper (including the imagery) which was deemed permissable was clearly part of a section where the premise was based on a prior news publication under the news exception to the California statute. While this makes good fodder for making a legal argument that wedding photographer portfolio demonstration is allowed, it is also good fodder for arguing the opposite since there is not a portfolio exception. The case, while close to the issue, is not really on point.
    I agree with Craig's view that a strict reading of the statute will mean that the commercial portfolio use will not fly when challenged but the California courts have been trending away from strict interpretation with exceptions not written into the letter of the law. Such use are made editorial use as a result. Based on that, I won't share Craig's certainty until more authority is available. I personally think his statutory interpretation is correct but I don't make the court decisions.
    I don't embrace Raymond's absolutist approach either (in Califonia anyway) because I have not seen any authority that is as definitive as his conclusions. While some states have specific laws requiring an element of endorsement, the California statute does not have such language.
    My personal opinion, which is not to be used as advice, is that the permissability of the use is unsettled but trending towards endorsement as a dispositive factor where it is not made so expressly.
     
  47. even churches in the U.K. are not properties owned by the public
    If we're on the subject of the UK, then here what constitutes "in public" or "in a public place" is entirely different from "on publicly owned property". You have no expectation of privacy at a wedding in a church, or while in a shopping centre, or even at a ticket-only event - or anywhere you might reasonably expect to be seen by other members of the public, regardless of who owns the property. Incidentally, by law, wedding ceremonies must be open to the public so that anyone who wishes can attend and raise an objection to the union. The celebration can be as private as you wish - but the marriage ceremony must be open-doors.
     
  48. What the Bride and Groom signed was an adult release that really pertained to them. I am sure this Flower Girl was a minor, so a separate release, signed by a parent or legal guardian is required by law. The law is very specific about this. The way I see it, you have two choices, remove the photos or get the mother or father to sign a minor release form.
     
  49. Since when does having a family member not yet through law school make anyone qualified to answer this question? And even if that person were graduated and admitted to the bar, I would make sure that they were familiar with constitutional (1st amendment) and codified laws before I sought advice from them. This is like saying that "(fill in the blank with an opinion about medicine)" because my niece/nephew is a third year medical student. These forums are not the place to get legal advice. The best advice I have seen on here are the types that help you do deal with the person in a manner that will keep your reputation intact and perhaps gain a customer. Marketing research tells us that an unhappy customer will tell five people about their encounter, while a happy person may only tell two. Make the woman happy and take down the photo. Good luck to you, Tara!
     
  50. "The purpose of a photographer shooting pictures at a wedding is not to build your portfolio, it's to capture the day for the couple."
    Says who?
    And if your future customers want to see your work, you show them what? Think before posting such harsh statements.
     
  51. Since when does having a family member not yet through law school make anyone qualified to answer this question? And even if that person were graduated and admitted to the bar, I would make sure that they were familiar with constitutional (1st amendment) and codified laws before I sought advice from them.
    Mark, you do realize I agree with you? I can't tell from you comments. Don't bash me, please. Not necessary.
     
  52. I agree, take the photo down. But, having said that.....is that mother crazy? The flower girl? One of the top people in a wedding and this woman thought her daughter was not going to be an important part of the ceremonies and therefore the pictures. Some people just don't think!
     
  53. Just take the photo down and save yourself a lot of heartache. There are some people out there who are hyper-paranoid. They'll blow up at the slightest provocation. Maybe she thinks it puts her child at risk...who knows. Look like the good person, take the high road and come out like a rose.
     

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