Getty Images

Discussion in 'Business of Photography' started by bmoorhouse, May 31, 2010.

  1. My family recently attended an event on the white house lawn. The event was semi-public in that only those with tickets were able to attend and there was a rather limited number of tickets.
    During the event, A Getty photographer took a photo of my wife and child participating in one of the activities. The photo later appeared on several websites across the world including Life.com and newspapers and news channel websites. My wife particularly liked one and contacted Getty to get a copy. They told her the best they could do was to sell her an electronic copy at a substantial price.
    Is that right? My wife and child are the main subjects of the images, and both of them are clearly recognizable. Clearly Getty has made money off this image, or at least, depending on their contracts, used it commercially, and my wife did not sign any releases for her or our child.
    We are not looking for the images to be taken down, we would just like a copy.
    Is it legal for them to sell and distribute the image without a release? Is it right that we would not at least receive a copy of the image when requested?
     
  2. Spearhead

    Spearhead Moderator

    Is it legal for them to sell and distribute the image without a release?​
    As long as it's been used in editorial, which it sounds like it is, it's perfectly legal.
    Is it right that we would not at least receive a copy of the image when requested?​
    Why would they have to give you a copy of a news photo?
     
  3. As long as it's been used in editorial, which it sounds like it is, it's perfectly legal.​
    It was not used in an editorial. It was used in articles and in galleries.

    Why would they have to give you a copy of a news photo?​
    Because it is of my wife and child, and we did not authorize the commercial use of their image. And to clarify, we are actually willing to pay for it. The "best they can do" fee, however, is unreasonable.
     
  4. Articles are editorial. Galleries (as in photo galleries on a news site) are editorial. Galleries (like an art gallery) are art. Neither use requires a release.
    More to the point, you probably explicitly provided consent by accepting the tickets. There's almost always a catch to these sorts of events, that being that your image can be exploited for any purpose. Could have been on the tickets, could have been signage at entry—if I were a betting man, I'd play big money on the fact you consented, whether you realized it or not. Big PR shindigs are tricky that way.
    If you know who the photographer is (which Getty usually lists), you may be able to contact him directly to see if you can get prints. It'll depend on his agreement with Getty, but he may retain the rights for that sort of thing.
     
  5. While editorials are articles, articles are not editorials. At least, they shouldn't be, though that is often the problem with American media these days. Regardless, the photos were not run in editorials; they were run in news articles.
    Regarding the tickets, that is a good point, and I will have to look at them again. Regarding signage at the entrance, I definitely did not see anything. I am surprised that a sign would be enough though as I would have expected to have to sign away the rights to my image, or perhaps, as you've pointed out, waive them by accepting the terms printed on the ticket.
    I will follow up later regarding what was or was not on the tickets.
     
  6. Also, Getty did not post the images in articles or in galleries. Getty sold the photos to news groups who did. If, for example, a Life.com photographer took the image, then Colin's comments above would apply. Or perhaps Getty could post them on their article and in their own gallery, but they didn't. They sold them.
     
  7. Is it legal for them to sell and distribute the image without a release? Is it right that we would not at least receive a copy of the image when requested?
    Yes.
    Yes, if by "right" you mean not surprising.
     
  8. Thanks, Jole, but by "right" I meant legal or ethical.
     
  9. Yes, if by "right" you mean not legally obligated. :)
     
  10. Ethical ? It's how they make their money so I guess I'm not personally troubled by it. But I understand your reaction. I had a similar experience (not the White House and not Getty). I thought the publisher might give me a copy as a courtesy but it was not to be. I wasn't able to track down the photographer which I think was a good suggestion by Colin. The photographer might retain rights in the photo and may be more amenable to giving you a copy for personal use or for what you consider a more reasonable fee. Good luck. Sounds like a good time in any event. Did you meet The President ?
     
  11. you probably explicitly provided consent by accepting the tickets.​
    Consent is not needed for the images to be taken and/or published in the way described.
    articles are not editorials. At least, they shouldn't be, though that is often the problem with American media these days.​
    Its not a "these days" phenomenon. The use of people's likeness in imagery has been permissible long before the media, as you know it, existed. If your beliefs were actually applicable, we wouldn't even have a visual media. Its actually amusing, somehow, that you are attacking news article use as it is the holy grail and poster child of permissible use of someone's likeness. What next? People can't be verbally described in the news without permission either? Names can't be mentioned either because doing so happens to feature the named person? That's the equivalent of what you are saying. Photographic depictions are not magical, just more detailed. The reality is that you don't have a right to not be depicted, described or seen in society. There are some, uses of one's name/likeness ect. that have restrictions that arose due to special situations go beyond that principle.
    Being featured in an image has nothing whatsoever to do with owning an image. Would you claim that someone mentioned in a newspaper article owns the copyright to the article? No (I hope). Photos are copyrighted by the creator too and work the same way. If your view were the rule, authors could not write about other people because the other people could veto the use. Photography works the same way. The owner of the image owns the image and they have no obligation to give you something they own even if you are willing to pay for it.
    As to selling the images, we can use the author analogy again. Authors own their creations. They own them even when they are writing about other people. They often sell their writings to book and publishers. Stories of and about other people has been a commodity for countless years now. Drawings of other people have been as well. Photos, newer to the scene, are just another depiction of people. If selling these works were forbidden because someone was featured in them, you wouldn't even recognize society as it would exist and you certainly wouldn't know much of anything going on in the world.
    The focus on selling is also misplaced. Let's face it. You would balk if the image were plastered on bill boards or TV even if the image weren't sold. The financial aspect is just "seems" to make it different until you think about with less haste.
    For many years you have read articles, watched shows and viewed photos and never believed anything improper was being done until an image happened to involve you. Your entire analysis is derived from the filter of this tunnel vision. Step back from the trees to see the forest and you will regain your bearings on this issue.
     
  12. This is not a question of whether an article is editorial or whether an editorial comment is an article. The use of the word "editorial" refers to the actual USE of the image and, unless I'm completely mistaken, the law says that uses such as those you described all fall under the "editorial" use license and as such do not require "model releases" or the subjects' consent.
    Now, if they use your image to promote a PRODUCT (even if that product is a service) - in other words if your likeness is used to actively advertise a specific product, then the ADVERTISER would need a full model release from all of you. If you can find such a use then you could easily demand that Getty remove the image from their collection. Otherwise, however sympathetic I am to your plight, I very much doubt you'll get anywhere...I'm sorry...:-( Personally, I'd see if the image appears in print somewhere (maybe the print edition of Life?) and then cut and frame that...;-) After all, how may people can claim to have been published in Life? ;-))))))))))
     
  13. Spearhead

    Spearhead Moderator

    however sympathetic I am to your plight​
    What is there to be sympathetic about? Without the right to publish, the news would die. As John points out, this would be across the board, not just photography, since it's about a principle. Instead, we have freedom of the press. If you don't want freedom of the press and want more control of images, there's always Saudi Arabia, Burma, and Iran.
     
  14. Getty sold the photos to news groups who did​
    Highly doubtful Getty (sold) the images.
    I'm sure they licensed them along with a wonderful "Indemnification" clause that keeps them free & clear of any problems arising from the Licensee's (use) of the images.
     
  15. Jeff and John, there is a huge void between using someone's name or describing them and actually using someone's image. If there was not more significance applied to one's image, releases would never be needed. And John, the problem I light-heartedly mentioned with the media today was specifically about the news reporters' apparent desire to inject opinion into every news article, thus shading the difference between an article and an editorial. It was a cheap shot against today's media, and admittedly had nothing to do with my original question.
    Regardless, you both also missed that I said I have no problem with the use of the image or that I am being charged for it. I specifically said in the OP that I was not looking for the image to be taken down. I just don't believe their unrealistic fee is justified.
    The focus on selling is also misplaced. Let's face it. You would balk if the image were plastered on bill boards or TV even if the image weren't sold. The financial aspect is just "seems" to make it different until you think about with less haste.​
    I am impressed that you able to read me after a single, simple question. Unfortunately, you are completely wrong. You have no idea what I would or would not balk at, and I would appreciate your not making assumptions you are not qualified to make. Regarding haste . . . the event was over two months ago. No haste here.
    As for the photos I have seen in the media for years, I have never "believed anything improper was being done." I have wondered, however, the difference between those photos and my candid street shots, which I was advised to take off my site unless I had releases from the subjects. True, I was not motivated to ask about the difference until my family was a subject of similar photos.
    Bottom line, you guys can spare me the lectures.
     
  16. Thank you, Marios and Jole. I appreciate your responses. They were the type of helpful, informative answers I was looking for.
     
  17. Highly doubtful Getty (sold) the images.
    I'm sure they licensed them along with a wonderful "Indemnification" clause that keeps them free & clear of any problems arising from the Licensee's (use) of the images.​
    And I am sure that license would be free ...
    Actually, I revisited Getty's website and was able to find the photos in their archive. I then had the option to BUY the image for use in editorials, texts books, and for use in wall displays and advertisements for non-profits among other uses. Oddly, some of the pricing is less than what they offered me on the phone.
     
  18. Robert:

    In the world of licensing photos, commercial doesn't mean what you think it means. If the photographer (and/or agency) received payment is moot as it has no bearing on if a use of a photo is editorial or not. It breaks down to (simplified):

    Commercial: Photo is used to sell or promote a product or service. Such as adverts for instance. For commercial use a release is commonly required.

    Editorial: Use of image inside a newspaper, magazine, website, books etc (not in adverts though) doesn't require a release.

    Look at my work as an example. I photograph law enforcement and prisons. I license a large amount of images every year of people being arrested, cops busting a drug house, inmates in prison, parole hearings, etc. My images are mainly used in text-books, kiddie books (I know, surprising), and magazines. My images are never released by any of the people in the photos, meaning I don't have their explicit permission to use/sell/license/publish/etc the photos any way I want. Because the way my images are used (Editorial), there's no need for any releases. This is what I do (mainly) for a living so yes, I most certainly get paid.

    A photo can be used both editorially and commercially. Take the photo of your wife and daughter. The photo could indeed be licensed to (say) a text-book publisher for use inside a book with no permission needed from your wife or daughter (or you). The very same photo used in an ad to promote anything should be released though. Without a model release on file the image falls substantially in value for Getty. If you see it on Getty's website and they claim to have a release I suggest you e-mail and/or call them and let them know that your wife and daughter never signed a model release and that you all expect them to not license the photo(s) commercially. As others have said though there might be something on the tickets or in the information from the WH that spells it out that you accept some sort of model release by taking part in the event.

    If something like that is legally binding and a "good enough" release I don't know since IANAL.

    That Getty doesn't want to give or sell you a copy for a small amount very likely comes down to policy. It can sure seem petty but I can see how they would get absolutely swamped with requests if they did offer this service. It would be hard and a lot of work for them to establish that the individual making the request for a photo is indeed in that photo based on only e-mails or phone calls. Me I merrily provide prints to people I photograph if they want one, free of charge. But I'm not Getty and for the small amount of requests for this that I get per year (maybe 200 at the very most) it's no big deal for me. What it eats up in costs it more than makes up for in pr and goodwill which in turn makes it easier for me next time I want to photograph a particular agency/department/prison/jail/court/individual etc.
     
  19. "Is it right that we would not at least receive a copy of the image when requested?"
    " I just don't believe their unrealistic fee is justified."
    They can set whatever price they desire for the photo they made.
    The difference between media photos and personal photos of newsworthy events is, in some sections of the country: none. Read up on the Branzburg case; note, that the decision for Branzburg was not honored evenly across all US District Courts. End result is, for most uses, in the US the First Amendment right lets pretty much anyone print or reprint anything; but, making money off of a publication is another matter. Branzburg is significant in that those trials ended up being about borderline matters: where one set of laws and their influence ends, and where another might begin. Particularly, it's a commercial matter more than an informational matter.
    Printing and publishing are not the same thing.
    One of the best explanations between printing and publishing can be found by closely reading the FAQ pages and other info at www.copyright.gov
    Printing has to do with the mechanics of the picture. Publishing has to do with payment for the public display of information. They're not the same thing.
    As far as privacy goes, there may be no expectation of privacy at the White House whatsoever, as it is a government building. What privacy you received there was probably under the gentlemanly auspices of The President and his officers. The whole issue of expectations of privacy on government properties is, in practice, complex; but, for the most part can be summarized with "none." That is, no expectation of privacy is available there which would be comparable to that you might have within your own home.
    How much privacy you might receive socially, and how much you might expect as a right, are two different ideas.
    Probably the same gentlemanly conduct which got your family member invited up to the White House would be the same gentlemanly conduct which got the Getty Photographer on the lawn of the White House.
    If the Getty photographer's work, or his agency, is not cutting it for you, the alternative thing to do would be to make your own photo. This is what most of us do.
    If I were you, I would just calm down and pay the fee, if you want that picture; get an 8X10 and tell people how proud you were that the wife and kids made it to the White House lawn for a visit. That's the main idea about the event for y'all anyway, isn't it?
     
  20. For the printing and publishing, I don't know if I was clear:
    in general purpose photography for personal use, people may have a lot of experience with printing. Yet, they may not get it with publishing. Some of those matters with publishing are probably affecting what Getty is telling you.
    P.S. Congrats on the White House visit.
     
  21. Mikeal and John, thanks to you both for the very, very informative responses. I understood the public/privacy issue, but through your postings, I have learned quite a bit about commercial and editorial photos and printing and publishing.
    While I like the photos the Getty photographer took, you better believe I snapped off several of my own too. I was interested in his, however, because there is an obvious reason why he works for Getty and I do not :) Then again, the difference between his and mine in this case is not worth the fee Getty wants for the image.
    Honestly, though I did not appreciate a few of the replies above, I am not upset about the situation with Getty at all. It just provided me the motivation I needed to ask about a topic I wanted to know more about. If I was upset, I would have gotten on here two months ago instead of waiting until I got around to it.
    Following Colin's advice above, I have searched for and found an email for the photographer and have tried contacting him directly. Assuming it is the right guy (Getty did not provide contact info), maybe, Mikeal, I will get lucky and he will reply in the same manner as you would have.
     
  22. Robert, also don't be fooled by the word "buy" in the context of "buying" an image for use in, say, a newspaper, magazine, web site display, etc. In such circumstances "to buy" means "to acquire" certain (often non-exclusive) rights.
    And also #2: contrary to your belief, in the context of editorial vs. commercial, there is not much (or maybe any) difference between someone's image and someone's words if you think of it in terms of advertising (= commercial). Most people would no more want their words taken, without authorization, to sell (advertising/commercial) a product than they would their image. (I am sure there are legal cases revolving around exactly such circumstances but don't have any citations on hand.)
     
  23. there is a huge void between using someone's name or describing them and actually using someone's image.​
    Well, no. There isn't. As already explained, an image merely provides more detail of what someone looks like or serves as different means of identifying someone. This is why the the law in terms of using identifiable information about someone using photos, video and written communication is so similar.
    If there was not more significance applied to one's image, releases would never be needed.​
    This assumes releases are not needed for similar written uses but releases are, indeed, needed for commercial use of identifiable people in written communication for certain uses just as there is with photos with identifiable people. If I write, in an advertisement, that Robert Moorhouse endorses my brand of coffee, I need your permission to do so just as much as if I used your picture instead to suggest the same thing.
    you both also missed that I said I have no problem with the use of the image or that I am being charged for it.​
    "Getty has made money off this image... ...and my wife did not sign any releases"
    "Is it legal for them to sell and distribute the image without a release? we did not authorize the commercial use of their image."
    "I would have expected to have to sign away the rights to my image"
    "by "right" I meant legal or ethical."
    "They told her the best they could do was to sell her an electronic copy at a substantial price. Is that right"
    "we would just like a copy."
    "Is it right that we would not at least receive a copy of the image when requested?"
    You might be forgiving of someone thinking so after making all these remarks and not mentioning that you had no such problem.
    You have no idea what I would or would not balk at... ...I would appreciate your not making assumptions you are not qualified to make.... ...you are completely wrong.​
    After questioning, at length, the ability use of the images in websites and newspapers, we are to believe you would not harbor such reservations "if the image were plastered on bill boards or TV"?
    I have wondered, however, the difference between those photos and my candid street shots, which I was advised to take off my site unless I had releases from the subjects.​
    That is a good question and the answer depends on how they were being used (or if they were a result of "intrusion" which is a different issue). If they were merely being displayed for art or general enjoyment of photography (so called editorial uses) then you were given erroneous information unless there are other factors we are not told about.
    Actually, your original questions were good too. The reason for busting your chops a bit was that it was apparent, at the time, that you had a strong belief in what the answer should be and seemed resistant to accurate responses that did not fit that model. Shaking the tree you were in (to make a pun of the trees/forest analogy I used) was designed to provide situational awareness and I think you are well informed of the overall situation now.
    I would be glad to help with other questions if I can.
     
  24. (Belated addendum to my post above: I meant to refer to "name and/or verbal description" in addition to "words.")
     
  25. Just out of curiosity, how old is your child? Could there be possible concerns if the child is a minor and his/her image is being used for potential commercial uses with parental consent?
     
  26. Could there be possible concerns if the child is a minor and his/her image is being used for potential commercial uses with parental consent?​
    If there is parental consent then such an issue is resolved but it was not an issue here since the use was wasn't commercial. The age of a child is not an issue either because the actual issue is simply whether they are a minor or not.
     
  27. Spearhead

    Spearhead Moderator

    You might be forgiving of someone thinking so after making all these remarks and not mentioning that you had no such problem.​
    Exactly.
     
  28. The age of a child is not an issue either because the actual issue is simply whether they are a minor or not.​
    I'll amend this slightly in that there may be jurisdictions that treat people under 18 but over a certain age as being bound by certain contracts they sign but I have not researched that question.
     
  29. Getty photographers shoot both editorial stock and regular stock. The difference is where the photos end up and what they are providing. Editorial stock is simular to your newspaper photographer's photos and are used for news purposes. The "editorial" tag is broad and can be used in alot of different ways, however it cannot be used for commercial use (ie: you won't see your photo being used on a box of cerial). Can you imagine the news photographers having to get model releases from everyone they shoot pictures of? Can you imagine photographers stopping the president and having him sign a hundred different model releases from each speech that he gives?
    The paparazzi make their money the same way. In fact alot of them are Getty. Alot of people hate them, but alot of those same people subscribe to People magazine and are paying the paparazzi to continue. David Thomas is on the right track, unless your photo is being used for commercial use (ie: products...not magazine, newsarticle, or galleries) then the photographer's use of the image is legal. If it were me, I'd search gettyimages.com and see if you can find your photo. If you do find it on their website, contact the photographer directly. That seems like the smartest option.
    PS: you can check out getty's editorial policy here:
     
  30. This is the kind of greedy, thoughtless, arrogant behavior that gives photographers a bad reputation. Every story like this makes it MORE DIFFICULT for other photographers to take legitimate photos of people in public places. Given that Getty is ALREADY MAKING MONEY from this image, they should give Mr. Moorhouse and his family a copy of the photo for the price of a postage stamp.
     
  31. John H., I asked two questions, both of which you just conceded were good questions. Rather than simply attempting to answer them for me, you proceeded to draw your own conclusions on my "believes" and my "views," and accussed me of "attacking news article use as it is the holy grail and poster child of permissible use of someone's likeness" when I did no such thing. I described the situation, providing every detail I thought was pertinent, and asked a question. You can list any number of quotes from my posts you like, but I only need to reply with the two you ignored: "We are not looking for the images to be taken down" and "And to clarify, we are actually willing to pay for it."
    You also mis-read my "these days" comments, perhaps because I was not aware of the two uses of the word editorial. Prior to posting in this thread, I thought it refered only to an article based on the opinion of the author. From the posts of others, I now know it is also a type of Clearance. From you, I received only accusations that I want to bring an end to modern media.
    Finally, in your last post, you accused me of being resistent to accurate responses. The only thing I resisted were your assumptions and the wrongful conclussions you came to about me. I thanked nearly everyone else who replied and acknowledged ideas I would follow up on based on their input.
    In the end, however, I will say you answered my question regarding the difference between my street photos and news photos very well, and I do appreciate that. It is nice to know that I was probably not in the wrong for posting them when I did. If you do help with other questions of mine in the future, I hope it is with the thought that went into this last one and not the personal attacks I read in your first couple of posts on this thread.
     
  32. Jeff R., thank you for the response. I appreciate the explanation and the additional information.
    I did search GettyImages.com and have the name of the photographer. Unfortunately, I cannot seem to find any contact information for him. I located and emailed another photographer by the same name using google, but he has already replied to tell me that he is not the person I am looking for. Are you aware of a directory of photographers on Getty's website that has contact information for the photographers themselves?
    Thanks again.
     
  33. Editorial is anything that isn't advertising, in journalistic parlance. This is often confused with editorial opinions, that appear on the opinion page in newspapers, etc. To further confuse matters, to editorialize is to express an opinion. But editorial usage refers to news gathering, both text and photos.
     
  34. If, however, you ever see this image used to sell something, as in an advertisement, unless you've signed a model release then you/family would be entitled to compensation/sue.
     
  35. It's my understanding that photographers are allowed to take photos of anything or anyone (without a release) as long as (a) they are on public property and/or (b) they have consent of the property owner. In your case, I would think the White House lawn would be considered public property and since the photographer was invited to the event too, I would assume he had consent from the property owner (the US government).
    I take photos for a couple local bars all the time when they have special events. They want to use my photos of people partying and having a good time in their promotions and on their websites. And I run into people all the time that think I need their "permission" to take their photos. I sometimes have to tell them "I am employed by the owner, the bar has signage saying photography may happen and if you don't want your photo taken, you are more than welcome to leave the property."
    Of course 99% of the time I'm not a jerk about it. Usually if someone asks me to not take their picture I won't. Or if I take one and they ask me to delete it, I'll usually show it to them and try to talk them into letting me keep it. Usually they say "ok" once they see it's a pretty good photo. But if they insist (nicely), I'll usually delete it in front of them. I only us the line above for the people to automatically get pissy with me and try to bully me.
     
  36. Unfortunately if you were taken in public venue, which you were by all sounds, you have no "reasonable expectation of privacy" and therefor your picture can be used for "editorial purposes" without any compensation.
    As also noted, your ticket stub may have waved away further protections. See here for more on "Model Releases":
    http://asmp.org/tutorials/property-and-model-releases.html
    Consider the alternative - the NYT sends out a reporter to cover the local Tea Party. (S)he takes pictures which of course may have dozens or more identifiable persons in a frame. The NYT then prints the photo(s), which the NYT being a "for profit" is essentially making money off of the subjects of the photo, but is still "editorial" in nature.
    Should the NYT have to track down and get "model releases" for everyone they take, potentially in a fast moving crowd?
    Obviously not.
    Now selling mugs is another thing.
    That said, the right thing to do as a photographer (or Getty) in this case, would be to supply copies free of charge as a goodwill gesture. If nothing else, it helps avoid the kind of angst we see here. But they're a big ugly company, so there you go.
    BTW - also see the section here on "Public places":
    https://ssd.eff.org/your-computer/govt/privacy
    This too:
    http://asmp.org/tutorials/frequently-asked-questions-about-releases.html#q4
    Clearly there is a fine line between "editorial" and "for profit" use though...
     
  37. For profit or not has no bearing at all if a image usage is editorial. None. 99% of my images are used editorially and I'm paid for 100% of the usages (unless someone use my images without a usage license obviously). I am certainly not a non-profit.

    Please folks, let's not confuse the terminology here - there is enough misunderstandings regarding editorial/commercial as it is.
     
  38. My point was a "for profit" company could use it for "editorial purposes" and the fact that they were "for profit" doesn't matter. The NYT is "for profit" but uses editorial shots all the time without compensation. It's only when the use of the image implies endorsement that issues arise.
    Anyway, another good link here:
    http://www.danheller.com/model-release-primer.html
     
  39. Spearhead

    Spearhead Moderator

    That said, the right thing to do as a photographer (or Getty) in this case, would be to supply copies free of charge as a goodwill gesture.​
    This is a ridiculous idea. Photographers shooting for wire services, stock, editorial may shoot hundreds of people a day. They should provide photos to all of them? I did a shoot of a street event, it ended up with a double page spread in a local newspaper of my photos. Probably fifty identifiable people. I should prep and make 50 prints for people? The newspaper should do it? One more time, we have a free press. That means that the press is free to use newsworthy (including "human interest" or what is usually called "feature" in the business) photos without obligation. The newspapers, wire services and stock agencies would all quickly go out of business if they made prints for everyone in the photos. Or even the ones that made requests.
     
  40. Robert, it will be counter productive to spend more time analyzing what various comments tend to suggest. I'm confident that your questions have been answered and that you have a solid perspective on them as well. Please feel welcome to ask more. If I can help, I will. To the question about finding the photographer you could post the name in the title of a new thread (i.e. I'm looking for photographer so and so) and someone may recognize the name and respond.
     
  41. This is a ridiculous idea.​
    I think "ridiculous" is a bit overly melodramatic thank you.
    The point was, the OP said, to quote:
    My wife and child are the main subjects of the images​
    Now if I were the photographer and it was posted in several places, I, being a nice guy that I am, would offer to give a copy if they asked. I think it's the right thing to do. A small gesture frankly. I made money frankly off of these people as main subjects.
    I did not, however, as you have read into my words, imply that this should be general "modus operandi", nor suggest that they were in any way obligated to. Also, if it was a big deal because of the numbers as you suggest, then I would just say, "I'd love to, but I get these requests all the time and I can't afford to." However, this seemed a very specific case based on the main focus of the image.
    I'm not a pro, so the chances of this happening to me are small. You have to decide what is right for you, but I don't think I'm "ridiculous" for suggesting it.
     
  42. if you were taken in public venue, which you were by all sounds, you have no "reasonable expectation of privacy" and therefor your picture can be used for "editorial purposes" without any compensation.​
    Reasonable expectation of privacy has nothing to do with "editorial purposes" analysis. An image can be used as such even if the image were not taken in a public venue. You might refer to your own site that you cited to see this. If the image were taken in a way that amounts to the tort of intrusion, however, the the conduct is actionable even without publication. A completely separate issue and analysis altogether.
     
  43. Reasonable expectation of privacy has nothing to do with "editorial purposes" analysis. An image can be used as such even if the image were not taken in a public venue. If the image were taken in a way that amounts to the tort of intrusion, however, the the conduct is actionable even without publication. A completely separate issue and analysis altogether.​
    I see what you're saying there - I'm mixing the law, though the end in this particular instance doesn't look that much different. Correct me if I'm misinterpreting:
    1. In a circumstance with the "expectation of privacy", I cannot take your picture period without consent. That consent however does not have to be in the form of a "Model Release", but just some sort of indication that you accept my taking of photos. If I take photos in this case without consent, then I am in "tort of intrusion" territory and committing a crime regardless (ie: I'm a "Peeping Tom" of sorts).
    2. If the subject consents in a situation that otherwise has an "expectation of privacy", because of the consent I am now free to use the images for "editorial purposes".
    3. If I take the image in a "public venue", then there is implied consent and I can both take the picture regardless and use it for "editorial purposes".
    4. However, in either of #2 or #3 if I use the image in a mode that implies endorsement, then I need a model release.
    Again, correct me if I'm wrong.
    Thanks.
     
  44. My wife and son's image was used in a local newspaper story many years back by the local newspaper. We also signed a release for the reporter. They had a standard procedure that an 8x10 could be purchased for a nominal fee, but not for free. At that time someone would have had to take the negative to the darkroom and make a print which would have taken a bit of time. I think we bought two or three prints from them and thought the fees reasonable for the time involved. After all they are in the business to make money. I also have a copy of the newspaper that the photo appeared in, and value that more than the 8x10's.
     
  45. Robert, even though you don't like the answer, the fact is the use of the photos you mentioned are not "commercial" as it specifically relates to the use of photographs. If the photographs end up in a commercial, like an add, then you would have a beef. Non-commercial use, doesn't mean not for profit. I know it may sound un-intuitive, but that is the way it is. If you are going to argue that your rights to privacy etc. were violated, you will find that this principal is long settled in the law in favor of use of these images. A model release is not neccessary, they can be sold in a gallery, they can be sold as stock for use in articals and news stories. If you go to Getty images and find the image in the stock library, or one of the librarys, you will see that its sale is restricted to certain uses.
    Sorry, but that's the way it is.
     
  46. Wow, thanks to everyone whose contributed.
    For the record...
    I do not feel that my right to privacy was violated.
    I do not want to have the photos removed.
    I did not expect to get the photo for free.
    I asked the questions I asked because I have been curious about releases and the posting and sale of photos for a long time. Having photos of my family appear on Getty motivated me to finally ask. I provided all of the details, such as our having not signed a release, as background on the situation because I thought it would make a difference in the outcome, not because I wanted to argue to have the photos removed or fight for privacy, etc. I apologize if my choice or words or tone implied otherwise.
    Admittedly, yes I would have enjoyed receiving a copy (electronic by the way, as I did not expect anyone to print and mail me a photo). I would have paid for it as well. I just won't pay more than I would for an Ansel Adams print.
    In the end, I have learned a lot about the subject and I appreciate everyone's replies.
     
  47. Personally, as stated in your last post certainly, I see nothing unreasonable about your take Robert...
     
  48. Matt, here are my responses to your questions:
    1. There are usually other elements than just EOP. Intrusion, for example, usually also requires that the act be offensive to a reasonable person. There may be some excuse to intrude such as trying to get evidence of a crime or something. It may be found that such efforts are not highly offensive. Intrusion does not necessarily mean a crime is being committed because crimes have their own elements that must be met and are analyzed separately .
    2. If you mean consent to be consent to display the image then permission is granted although it is not needed for editorial use. If consent means permission to take pictures then EOP doesn’t matter as there no longer is any such expectation. Editorial use should not be an problem here either.
    3 I’m not sure that “implied consent” is why one can use images for editorial use when the people are in public because images can often be used for editorial purpose when the subjects are on private property and events as well. Implied consent is also often associated with exercising certain privileges like driving motor vehicles. It may be more of a ‘you have no right to object’ type situation. I don’t know.
    4. You need permission to use likenesses for endorsement uses. A release can be both evidence of permission or a contract securing the permission and preventing subsequent revocation. If it is to serve the latter, it must meet the elements needed to form a binding contract.
    Now here comes the disclaimer: My comments legal advice. Obtain reliable information from an attorney in your jurisdiction.
     
  49. Nice thread, I'm learning stuff here. One thing that made me wonder considering the rest of the information was Dean S's comment
    I take photos for a couple local bars all the time when they have special events. They want to use my photos of people partying and having a good time in their promotions and on their websites.​
    That sounds like commercial use to me, not editorial. So wouldn't that require releases? Or does it matter here that the owner of the property has consented? Just curious, not implicating Dean or anyone else is doing something wrong.
     
  50. This is very interesting to me. I've read through most of the posts but not all. Please correct me if my understanding is flawed, but if Getty Images were to sell their prints to private citizens wouldn't that constitute commercial usage, for which they would need a release? If I snap a really nice photo of someone in the Park, who is clearly identifyable, and then make really large prints of it, and then sell it to anyone who likes it and wants a copy, wouldn't I technically need a release from my subject?
     
  51. Hal:

    Nope. Commercial usage - in photo speek - is typically when a photo is used to sell or promote a product or service.
     
  52. Allard:

    If the bars that Dean shoots for are using the photos to promote themselves that would indeed typically be commercial usage. If they have any brains they have covered the release aspect by making that part of granting people access to their place of business. Typically by having a release printed on the tickets or similar where people "sign" (maybe accept is a better word - thoughts John?) a release by entering the premises.

    IANAL and I have no idea how such a general release would hold up in court but it seems like a large number of businesses do this and it would surprise me greatly if they'd do it if they hadn't had a serious talk with their legal folks first.
     
  53. Robert, please don't be offended by some of the views expressed here - regardless of the actual wording chosen sometimes, what started off as a simple question on photography usage expanded (as such questions usually do) to a much, much broader discussion on use, rights and so on and so forth. Any discussion which, even tangentially touches upon issues of privacy and rights of use is almost guaranteed to spiral out of immediate content and expand to cover more things...



    For reference, the "plight" I was referring to was the price asked for the photograph, nothing else...;-)



    If I were you - to come back to your original question - I'd bargain with Getty on the pricing, possibly by offering them some sort of legal promise that the photograph is to be used for private use only (i'm not sure on the legalese here, but any lawyer should be able to help you). I wouldn't expect them to be unreasonable to such a private request.
     
  54. does it matter here that the owner of the property has consented?​
    No. One can't just sign away the rights of others. But Mikael's idea of consent as a condition of entry might work especially if the notice is conspicuous and refunds are available if the notice wasn't provided before the ticket purchase. These are my thoughts on how things would tend work based on general principles but there may be cases that address the issue more certainly. Its not something I have looked in to. As Mikael notes, a lot of businesses are using these ticket style releases. I don't know to what extent the practice has been tested.
     
  55. if Getty Images were to sell their prints to private citizens wouldn't that constitute commercial usage, for which they would need a release? If I snap a really nice photo of someone in the Park, who is clearly identifyable, and then make really large prints of it, and then sell it to anyone who likes it and wants a copy, wouldn't I technically need a release from my subject?​
    Mikael is correct about commercial usage but there are instances where posters and coffee mugs and things like that have fallen under the commercial umbrella. There are other instances where photos of people have been clearly deemed as art (editorial) as with a famous case out of New York. Where the line falls between art sales and mass marketing could be tricky.
     
  56. Reasonable expectation of privacy has nothing to do with "editorial purposes" analysis.​
    John, this thread has gotten off topic quite a bit, but has nonetheless inspired me to read up on the related topics that have been brought up. In doing so, I came across the Daily Times Democrat vs. Graham case. Wouldn't the courts ruling in this case indicate that a reasonable expectation of privacy can trump an editorial purpose analysis? Or would this be one of the exclusions due to intrusion that you mentioned?
    In Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964), the court held that just because a woman was in a public place when, because of no fault of her own, a gust of wind blew her skirt into the air and exposed her from the waist down with only her panties to cover her, a newspaper was not justified in printing the photo using the excuse that she was in a public place. The woman won the case.​
     
  57. This has gotten way off topic, whatever happen to just being nice to people? Robert you need to keep asking higher up people at Getty until you get the answer you want. There is certainly nothing unreasonable about wanting an appreciated photo of your family, in fact it is a flattering request. You just havent had the question land in the right ear yet, keep asking and good luck.
     
  58. None of this is really new; it goes back to when photos first got placed in newspapers over a century ago.
    It is strange why this topic that is over a century old and goes back to the glass plate era is baffling.
    Is it that newcomers here want publications to give out free images? ; you had to pay for them 50 years ago in a less welfare/slacker society. Maybe the new internet society means folks want images for free?
     
  59. That is a very interesting case Robert. The court specifically discusses "intrusion" as one of the invasion of privacy torts but left out discussion of the invasion of privacy tort we have been discussing in this thread called misappropriation. Misappropriation is the tort that turns on whether the use is editorial or endorsement. While the court discusses whether the situation was newsworthy, editorial use is not limited to news. Basically anything that is not endorsement use is editorial use. There just isn't any discussion about that.
    The court does discuss the situation as being offensive which is usually an element of intrusion. Finally, there is discussion of something being considered intrusive even when the situation is in public. Misappropriation doesn't have an element of intrusiveness. So its seems clear that the court is discussing intrusion. Other states may have also adopted 'the intrusion can happen in public setting' standard as well. I'll call this the Wardrobe Malfunction Photography case.
     
  60. Kelly, many people have a sense that use of their likeness without some level of 'say' in how their image is used is unfair. This doesn't register when people see pictures of other people but when its them or people close to them its natural to think "Hey!, they are using me to make money! (or whatever reason)". Its more of a 'they are using me' than it is 'they are using information that incidentally is about me' psychology. (I'm not a psychologist, its just my theory) This also comes in to play with wedding photos. People think, "Of course I'm entitled to copies of these pictures. I don't need permission. They are pictures of me." People have a natural inclination of possession over their own identity so they react that way when their image is being used.
    We know that copyrights and use of the information (such as what someone looks like or is doing) is the governing force in usage and that the identity of someone as part of that is merely incidental. Many people just don't see their identity that way. That they are not incidental that they're identity means something and is not other people's concept to use unfettered. It is often difficult to see the use of themselves in the objective light that they had when they saw imagery being used that was not involving them. That's how I read it anyway.
     
  61. Spearhead

    Spearhead Moderator

    If I were you - to come back to your original question - I'd bargain with Getty on the pricing, possibly by offering them some sort of legal promise that the photograph is to be used for private use only (i'm not sure on the legalese here, but any lawyer should be able to help you). I wouldn't expect them to be unreasonable to such a private request.​
    If Getty is only offering it for editorial usage, which is sounds like they are, this is meaningless. The subject of the photo has absolutely no rights to usage, so anything the subject did with it (including giving it to the local newspaper, let alone advertising), would not be legal.
     
  62. Imagine the poor soul at Getty that has to answer the phone with folks wanting discounts on images because they are in the photo.
     
  63. Robert,
    I'm quite happy you were able to attend an event on the South Lawn, that is always something wonderful. I used to be a freelance press photographer in Washington, DC for Bloomberg News, AP, and Getty and thought I'd throw in my thoughts about how things work in that industry. Whenever I was out covering an event or breaking news I was always required to get everyone's name in the foreground of the photo for use in the caption. I never had to get anyone to sign a release as the subjects were acting in a public way in a public setting.
    If someone didn't want to give me their name then they were listed as 'Unidentified' in the photo, but the photo was still used. I understand what you're saying but I don't think that your request of a copy of the photo is all that reasonable. Getty is a wire service that has licensed the use of photos to newspapers, websites, and magazines around the world and they retain the rights to those photos. The photographer cannot give you a copy because he or she doesn't own the rights to do so.
    As for the release, the White House has no control over what images press photographers take and distribute so the idea that somewhere on your ticket for admission would be a disclaimer saying you give up the rights for photos and such is not necessarily correct. I can't speak for all events, but events at the White House are not hosted by anyone other than the White House. There are not lobbying groups or public relations firms that have access to the House so there is nothing shady going on. Simply, you went to a public event and were photographed by a press photographer and you have no recourse. If the photographer got all of the caption information correct then you unfortunately have no grounds to approach Getty, and Getty is under no obligation to give you a copy of the photo. Getty photographers take tens of thousands of photos a day worldwide, so a policy of everyone having to pay to use the photo just makes good business sense.
    I hope this proved somewhat helpful and didn't come off sounding at all adversarial, I meant the information in the most useful, sympathetic way. Best of luck.
     

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