Photographer selling prints from our portrait session?

Discussion in 'Business of Photography' started by bill a., Mar 8, 2009.

  1. If we hired a portrait photographer to take images of our daughters, and no model releases were signed, can said photographer sell "limited edition prints" from the session if the image does not show their faces?
    (the image shows them sitting at a piano from the back, from the neck down)
    Bill
     
  2. I should add, this is in the U.S.
     
  3. I think that the subjects have to be recognizable. But I'm not sure.
    What exactly is your objection? I would understand if it was a privacy issue, but if their faces aren't shown...
     
  4. The way my contract reads, I retain all rights to my images. I can use them for display on my website or wherever without their permission. I think there is an "all rights" purchase option where the client buys the copyright from me, and I would no longer be entitled to use those pictures for my own purposes.
    I would go back and read the contract, and see what it says. Most likely, the photographer does have the right to use the images in any regard. If you signed a contract agreeing that he retrains all rights to the images and can do what he pleases with them, then I don't think there is anything you can do.
     
  5. Even if he does have the "right", and doesn't agree to stop using your "models" for his gain (after you paid for the session), you are certainly right to comment on his actions to anyone looking for a photographer.
     
  6. Oh I agree Justin... personally if I was the OP I would write a letter or email saying he is disappointed and did not understand the images would be sold. Perhaps the photographer would reconsider. Even though I have the right to do this I never would. I feel if the client is paying me for a session and purchasing from me, I don't need to double-dip by selling the images to anyone else... but that's just me. Some people only care about $$ and not their reputations.
     
  7. It all depends on what the contract allows the photographer to do with the prints. I believe a model release is only required if the model is easily recognizable. The photographer should probably have been more clear in what he/she might use the photos for, but I don't think it would be a requirement if the contract lists this as a possible use.
    As a first step, I'd re-read the contract.
     
  8. Bill -
    Without seeing a copy of what - if anything - that you signed prior to or after the session - we are able to only speculate as to whether or not your agreement / contract includes a model release.
    Most of the portrait studios (Sears, JCP,etc...) include a model release in the forms that you sign prior to the photos being taken. If this is a "private" studio then there may or may not be a release involved.
    If you did not sign anything or you re-read the agreement and there is no release included - contact an attorney and have a cease and desist letter drafted and sent. Send it registered mail - don't email it or send it via normal first class. Assuming of course you wish him to stop selling the print.
    Dave
     
  9. Model releases are for situations that involve misappropriation of images of people for commercial/advertisement/promotional uses (and the three other more rare invasion of privacy torts). Art prints are editorial, not commercial.
    Don't get legal advice from internet forums.
     
  10. I'm 100% with John Henneberger. There doesn't seem to be any commercial appropriation going on here. I'm no lawyer, but
    I don't see the legal angle working out for you. Also, from a non-legal point of view, I don't see the problem. It costs you
    nothing when the photographer sells his artwork. So you payed for the session--did you not get what you payed for? It's
    hard enough being a photographer, why would you want to make life more difficult for everyone involved in a way that that
    doesn't improve anyone's life? The best case scenario is that the photographer has one fewer sources of income, the buyer
    has one fewer images they like, and you get the nothing. The only one who stands to gain anything would be the lawyers.
    Why would you expend any energy to make this happen?

    On a professional note, I think that it would be wise for the photographer to make this clear up front to avoid these kinds of
    misunderstandings—communication is important in this business—but I don't think there is anything inherently wrong with
    the photographer selling his work, even if it involves your daughter.
     
  11. Sorry John, if I'm paying for a portrait session, that is not implicit agreement that you can sell anything from my private session to whomever you like. Regardless of any shady clauses in any contract saying you hold the rights to the images. This is not some artsy "street photo".
    If I found a photographer was selling art prints of my daughter that I had paid to have taken, without my permission, you'd bet he be getting some legal contact.
     
  12. Spearhead

    Spearhead Moderator

    Sorry John, if I'm paying for a portrait session, that is not implicit agreement that you can sell anything from my private session to whomever you like​
    Actually, the opposite is true. Read up on copyright and work for hire. The photographer can do what he wants with the print without a contract that specifies otherwise. If you think about it, this is what any photographer would want, anything to the contrary would restrict a lot of usage.
     
  13. I agree with John - Don't get legal advice from internet forums....-Aimee
     
  14. Here John:
    "A work made for hire (sometimes abbreviated as work for hire and WFH ) is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author."
    Tell me how that proves your point.
    "restrict a lot of usage" Sorry, tell me what kind of usage you expect from MY family members, on MY coin? This is the typical thinking of the gouge 'em for prints old-school photographers that drive people to their friends and other acquaintances who aren't trying to unfairly profit.
     
  15. Justin, you need to do a little more reading. It is very unlikely that work for hire applies here, unless the original poster forgot to tell us that the photographer is an employee of his. Try clicking on the work for hire link in the wikipedia article you posted.
    And the photographer is not selling prints on your coin. Presumable you payed for the session and received what you payed for. He is selling prints of his work--the photographs--a right which copyright affords. Your family isn't copyrightable. The only protections I can think of which might apply are privacy torts, but if the person in the photo is not recognizable there is no privacy issues at all. Even if the person was recognizable, I still doubt they would apply.
    Why, when there is no harm to anyone, would you object?
     
  16. OP this might seem like an obvious question, but did you tell the photographer you have an objection to this? And if so, what was his response? You didn't say whether you've approached him yet. I'd be curious to know how he handled it. Most photographers are concerned with their reputations and would not want to make a client unhappy.
    Also, you could compromise by saying that since he is selling some work from your "commissioned" session, would he mind giving you a credit towards some prints.
    I am almost positive that the photographer owns the copyright to the images and can probably do as he pleases but it's definitely not good business practice to go against the clients' wishes like this. People are very sensitive to images of their children (albeit in this case, the child's face is obscured, correct?). I can't imagine selling an image from a session unless I got the permission of the parents; I wouldn't even enter it in a contest without their permission. That's why I wonder if you have even approached him yet and told him you're upset about it. Most people are reasonable and if you tell them your concerns, perhaps he will be inclined to drop the idea.
     
  17. if I'm paying for a portrait session, that is not implicit agreement that you can sell anything from my private session to whomever you like.

    There doesn't need to be an implicit agreement. There needs to be a transfer of copyright which will not happen with implicit or implied agreements. Implicit agreements are irrelevent.
    Regardless of any shady clauses in any contract saying you hold the rights to the images.

    There doesn't need to be clauses in a contract preserving ownership rights vested in the photographer. Its automatic. Such clauses, shady or not, are irrelevent. Moreover, If placing such a clause in a contract could hardly be shady since it informs the client of things that they don't need to be informed of, so its the opposite of shady, its discloses that which doesn't even need to be disclosed.
    According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author."
    Tell me how that proves your point.


    It neither proves or disproves my point because I discussed model releases issues, not copyright issues. But since you made this assertion, you should know that the authority you cite (and the words you chose to use) describes work for hire as arising from employment. A one off session doesn't arise to a employer/employee relationship and is an independent contractor scenerio. The act you cite will not allow the copyright to be transfered to a contractor (except in a writing consistent with he act). Work for hire doesn't encompass someone being 'hired'. It applies to those deemed to be employees. "Work for hire" is irrelevent.
    "restrict a lot of usage" Sorry, tell me what kind of usage you expect from MY family members, on MY coin?

    The legal right to use a photgrapgh right is not based on expecatations but what the law is. Expectations about family members and from "coin" are irrelevent.
    This is not some artsy "street photo".

    There right of a photographer to use a photo does not depend on an image being artsy or of someone on a street. The fact that the imagery is not an artsy street photo is irrelevent.
    If I found a photographer was selling art prints of my daughter that I had paid to have taken, without my permission, you'd bet he be getting some legal contact.

    People often recieve "legal contact" after someone is unhappy about something that is perdectly legal to do. Legal contact is irrelevent.
    This is the typical thinking of the gouge 'em for prints old-school photographers that drive people to their friends and other acquaintances who aren't trying to unfairly profit.

    This issue, if its accurate, is a business issue well beyond the scope of my remarks.
    This is why legal advice should not be sought from internet forums and my comments should not be used as such either.
     
  18. The chances of the use not being legal is extremely slim (probably non-existant). The wisdom of using a customer's family for your own business pursuits is certainly worth considering. I'd think the value of return business and good word of mouth is something some businesses do consider. OTOH, the photographer did save the costs of a model shoot.
     
  19. Spearhead

    Spearhead Moderator

    Justin, you need to read up on work for hire. Here is the relevant definition:
    Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. sec 101)​
    Note that neither of these conditions applies. "Employee" has a specific definition which isn't met here. This isn't work for hire and the photographer can do as he pleases as long as the usage doesn't require a model release.
     
  20. "you need to read up on work for hire"
    No, I don't really. I was just posting it because John seemed to think it proved his point.
    Regardless of any "legalities", any photographer who used content from my portrait session for his personal gain against my wishes, would find himself lacking any recommendations and business from anyone I knew, and would receive some paperwork from my lawyer.
    I can't see how any of you can justify using portrait work that a buyer has commissioned for personal use, for the photographer's gain. Well, I can see you justifying it, but I must say I am surprised.
     
  21. "you need to read up on work for hire"
    No, I don't really. I was just posting it because John seemed to think it proved his point.

    I couldn't have "seemed to think" that 'work for hire' concepts proved any point I made because work for hire concepts are irrelevent to the topic I discussed.
     
  22. Sorry. Jeff. Not John.
     
  23. Spearhead

    Spearhead Moderator

    would receive some paperwork from my lawyer.​
    On what grounds? That you didn't like what they did?
    In the absence of any contract stating otherwise, the photographer owns the photos and can do what he or she wants with them. Interestingly enough, I have had restrictions on time usage but not on any other usage. I shoot for a magazine, setups, and they require that I hold the photos until six weeks after publication, but that only applies to the ones they use. Everything else I can sell to anyone I want, and after six weeks, I can sell everything. And that includes showing faces, and these are faces that people know.
     
  24. If you can't see the daughter's face, what is the big deal? I don't understand what you're so upset about. Especially if you signed a contract. You should have read it over before agreeing.
     
  25. Bill merely asked if the photographer can use the images as described. That is discussed adaquately. There has been some discussion as whether he should feel bad about the use or not as well. I assume he does and that he might continue to do so. This is not suprising for someone does not acquire images for magazines or other professional reasons. Lay customers of photographers often do not know about copyright, usage protocols and technical matters. They just figure they are buying an image of themselves, freinds or family and that's the end of it. Its natural for many to feel other uses by someone else are intrusive.
    I'm going to assume for discussion that any contract here is silent on restrictions to use of the photo by the photographer. If Bill still wishes that the photographer to stop using the image, he can contact the photographer to say that, while the images may technically be used, please don't. Pointing out that lay people don't really don't know that there will be usage by others and that in this instance it just isn't sitting well from that perspective. That if the agreement had been more informative, he could have made a more informed choice. I suppose some incentive could be offered if that doesn't work. Finally, more negative pressure could be applied in respect to potential adverse publicity if all else fails (This will only work if the photographer feels that would have some substantial effect).
    I don't know if this is the best approach about the usage if Bill is unhappy but, I don't see the legal route being the answer.
     
  26. Wow, lots of heat, only some light.
    (1) As a savvy consumer, I'll say, don't put too much faith in legal advice you get on Internet fora or from reading Wikipedia. Some of the references to Wikipedia demonstrate how a little knowledge can be a dangerous thing. Lots of people misunderstand what they read about the law, even (especially?) when they read an original statute or court decision. There's a reason law school takes three years of full-time study, and being a lawyer takes graduating from an accredited law school and passing a bar exam.
    (2) As a lawyer, I'll say, don't assume the law is in fact what you think it ought to be, or what you think is fair, or what you think is ethical. There's a lot of sleazy behavior that is not illegal, and more than a little illegal behavior that most people would not consider objectionable. Sometimes the law was written to address situations that aren't the one you face, and as a perhaps-unintended consequence, it produces a bad result in your case. Or perhaps the law was written to favor a powerful special interest. Remeber, we have a legal system, not a justice system, and at best, a legal system only roughly approximates justice.
    (3) As a father, I'll say, regardless of the legal technicalities, any photographer should ask the parents' permission before selling prints of the children, regardless of the legalities, and should stop immediately if asked to do so by the parents, unless the photographer very honestly and openly optained a model release. And any father who unleashed a can of whup-a$$ on any photographer violating these rules would have my sympathy.
     
  27. Okay, where'd the OP go? Did he contact the photographer yet, and what was the response? If something concerns you, call the photographer. He should respond to your question professionally. Give him a chance, rather than calling a lawyer as a first step as seems to be the attitude of some.
    My free, non-binding, non-lawyer opinion here:
    The legal questions in publication are: was there an intrusion upon seclusion; was there an appropriation of likeness or a violation to the right to publicity (to endorse a product); was publicity given to private life; or were the subjects placed in a false light? The answers here seem to be no. So to the OP's question, yes it seems he can use the images. But that doesn't preclude you from contacting him and asking him not to. And that's free compared to using a lawyer!
    Why does America love to sue, rather than pick up the phone and ask a question? Why be adult about it? Get fighting mad right away, call a lawyer, and get even! What a punitive, angry, and petty attitude so many people have. Sad. Like a little kid throwing a fit.
    I bet the same legal eagles here that don't understand copyright, also think that when they purchase a photo they can make all the copies of it that they want, etc. These are the same sort of folks that get software or music for free from friends - illegally. Why pay when you can steal? News flash, just because you bought or possess something doesn't mean you own it. In this case the photographer owned the image and the copyright to it the instant the image was captured. He has all the rights to it unless stated otherwise in a written contract. There are certain legal and professional responsibilities that come with those rights. However, the right to use images in the pursuit of 'freedom of speech' (as in here as art) or 'freedom of the press' is fairly strong.
    FYI - consider investing some time and money in your opinions, you'll sound much smarter'er. Perhaps spend $35 for the "Legal Handbook for Photographers" by Bert Krages for a start. Read it until you understand it, then read it again...
    Step away from the keyboard, put down the mouse, go take some photos and have fun !
     
  28. "News flash, just because you bought or possess something doesn't mean you own it. In this case the photographer owned the image and the copyright to it the instant the image was captured. He has all the rights to it unless stated otherwise in a written contract. There are certain legal and professional responsibilities that come with those rights. However, the right to use images in the pursuit of 'freedom of speech' (as in here as art) or 'freedom of the press' is fairly strong."
    News flash, some of us are actually full time photographers (that understand copyright just fine) that would never try to profit off a portrait session without the knowledge and consent of the paying customer, regardless of any clause in a contract.
     
  29. "News flash, some of us are actually full time photographers (that understand copyright just fine) that would never try to profit off a portrait session without the knowledge and consent of the paying customer, regardless of any clause in a contract." Good for you Justin but it doesn't answer the posters question. John and Jeff answered the question correctly even if you don't agree with their thoughts on the matter. Bill should personally contact the photographer and express his concerns. If Bill does not like the photographer's response he should contact a lawyer and hear the facts for himself.
     
  30. This sounds like a job for Judge Judy!
     
  31. News flash, some of us are actually full time photographers... ... that would never try to profit off a portrait session without the knowledge and consent of the paying customer, regardless of any clause in a contract.

    Obviously a photographer can provide ACTUAL knowledge and obtain MEMORIALIZED consent by SPELLING IT OUT IN BLACK AND WHITE in the contract that the client AGREES that a portrait image can be used for other purposes even though there is no need for the contract to have this clause.
    So, you are telling us that it is wrong for a you (and other photographers) to use a portrait image of a client with their knowledge and consent EVEN WHEN THEY GAVE YOU A WRITING SAYING that they have knowledge and give consent.

    I'm trying to reconcile this concept of it being bad to use an image without knowledge and consent even when there is knowledge and consent.
    You sure have some interesting theories.
    I wonder what non-legal advice do you have for the original poster here?
     
  32. The problem here is that the parent (understandably) cannot see a photograph of the back of his kids' heads and forget that he's seeing his kids. It's very difficult for a parent to objectively look at a photo (which contains no likeness of his kids, but of which they none the less are a part) and not fixate on the fact that those are his kids.

    But presuming that the parent can get past that part, and can see that the image isn't an intrusion into his family's privacy, then this comes down to the other matter: grumpiness over the fact that the photographer is seeking or has found a way to produce some additional revenue through the use of some carefully chosen excerpts from a paid shoot.

    I've had to discuss this topic with some of my customers (these are usually the owners of prized champion gun dogs... and believe me when I say that for some of those folks, the emotions surrounding their dogs match the ones involving their kids!). Essentially, some of the folks for whom I've done such work only knew about me or realized they could pay me for such work because they saw the output of similar projects that I'd done for other people. Some of that was work sold as art, not just promotional/portfolio material.

    I introduce this concept to them by mentioning that in order to keep the economics of what I provide for them at a more manageable level, I don't charge them enough to rule out using the images in any other way... though I can if they want me to. As it turns out, all of them have been willing to agree to a somewhat more modest "sitting" (or, hunting!) fee in exchange for the additional layer of signing a release and being quite happy that their prized dog might decorate someone else's life (or even an advertisement) as well. Yes, I realize that it's different with one's actual human children... but perhaps not so much so when we're talking about the backs of the heads at a piano, etc.

    Obviously it's best to mention this stuff up front. But don't just get out in front with it - take control of it. Lay out some options. A customer who instantly gets their hackles up when you introduce the idea that the back of their child's head might find its way into a separate sale should have no problem also passing up on a discounted rate for the work at hand. If you want to shoot for stock or secondary art sales at the same time you're handling a portrait (or other) commission, just frame it as a way for the customer to enjoy the choice between a lower price (which buys you the waiver) or a higher price (which removes the issue from the table). So far, my customers seem to enjoy the lower price and the warm and fuzzy feeling that comes from being told that they or their furry subject might really be a good fit for something else I have in mind, too. But hash it out in advance, and avoid the hand wringing and the need to do an after-the-fact education for them on the basics of copyright law, etc.
     
  33. I like Matt's approach for lay customers. Explain it, spell it out and then don't worry about it.
     
  34. To OP.
    Yes, he can, if the subject is not recognizable no need for model release.
    What a time.
     
  35. Matt's approach is nearly perfect - it addresses all of the issues presented here upfront...
    Unfortunately - the OP hasn't responded yet as to whether or not there was a contract / release signed up front or not.... Also - this will do nothing to ease the angst he appeared to be under.
    Dave
     
  36. nrb

    nrb

    If you were to take the pictures of your kids yourself this problem wouldn´t arise. That's what I do.
     
  37. OP here, for an update.

    First off, thank you all for your comments. The response has been more than expected (this is one of the most active threads as of this afternoon). A couple of things...

    - I, myself, have been an amateur photographer for 30 years, but mostly landscape and event-type photography, so I have never really dealt with the professional business end or model releases. I've been a parent for only four. I have shot a dozen or so weddings, and almost always handed the bride and groom (usually friends) the prints and the negatives as a wedding gift. I did a stint in a photography store in my 20's and remember having to tell customers that no, Kodalux will not make copies of the Olin Mills print, even if you do cut off the corner with the logo.

    - The shoot in question was a birthday gift to me from my wife; the professional photographer did an awesome job, to the point of reminding me why it is that I am an engineer, why I do shoot rocks and leaves and planes and trains, and why my own shots of my daughters are merely snaps. That's why I haven't, and will not, disclose his identity... but I will recommend him to my friends, without pause (read on).

    -No contract was signed... the shoot was scheduled, and shot, and the prints and packages offered back to us through the web. This photographer shoots weddings and portraits as his primary photography business. No idea what he does from a contract point of view for his wedding clients, but the images from the weddings he has done are also posted, and anyone (re: anyone) viewing the site can go in an order a print. Likewise, the use of the images for promotional use, or for fine art sales, was also not discussed. I was not present, because it was a surprise gift; I probably would have asked if I had been.

    -Matt Laur hit the nail on the head... for my wife and I, it is getting past that they are our daughters, and that it was not discussed, even if their faces are not shown. For promotional use, my wife and I are both ok with it... he did do a fantastic job. But as a piece of artwork in someone elses house, that was weird (Matt's earlier response)... The fact that it wasn't discussed (our fault as much as his) made it worse; the fact that someone had commented in the "comments" section of the image, "adorable, who are they?" only made our emotional response that much worse. If you have daughters, you understand -- you may not agree, but you understand.

    -My wife clued me in on the gift when she was having trouble deciding what images to give me. It was in the process of selecting that we noticed that one of the images (as well as an image from one of his weddings, with faces) was offered as a fine art print elsewhere on the site.
    -As someone asked early on, I did eventually call him -- not as a confrontational, irate customer, but to discuss it. So, it turns out, it was a technical glitch. The way his web pages are organized, an image dropped into that area automatically gets the links for "add to cart" and "purchase". He apologized for the oversight, and promptly removed the sale links. He did likewise for the wedding image. The images are still there, but you can't buy them. Did I mention that he has two daughters himself?

    So, I'm a bit embarrassed, especially considering the fervor of some of the arguments in this thread. This experience, though, and subsequent discussion, highlight that from a client and the photographers perspective, this is something that should be discussed upfront. I also agree that this is not the place to get legal advice, and I am glad the situation was resolved to both our satisfactions without having to get it. I think it also highlights for this photographer that he should discuss it as part of his process, and I hope he has done his research on what he can and cannot do with the images if challenged. As someone who has always had a camera at hand, long before cameras came in everything, images got posted everywhere, and what and where you took a picture really mattered, it's not like it used to be.
     
  38. Well shoot, Bill. That's awfully anti-climactic!

    If only every such bit of mess could turn out to be so benign in origin and so pleasantly resolved.

    For the photographers out there who sell online: this is a great example of the need for a well-oiled, carefully compartmentalized web site that keeps clients inside their own little boxes when it comes to viewing and seeing the option to purchase images from a shoot.
     
  39. Hi guys! I'm an amateur photographer and I never really bothered to understand the copyright laws. Said that, I have been participating in some photo contests and for photos depicting people , the contest rules always require a written waiver from the model. Without the waiver, the photo will not be included in the contest, that's simple. My question is, if the photo belongs to the photographer and s/he can do as pleases, like the case discussed here, why the contest sponsors even bother about a waiver?... Again, sorry for my lack of knowledge, but I thought that pictures taken in public could be used without authorization (and for news purposes only), but not studio ones. Being legal or not, I would be really upset if my kids photos depicting their faces would be sold without my consideration... Of course, liking photograph art like I do, I find that independent of the legal mess, pictures, where the model cannot be recognized, should be allowed to be used, even for profit.
     
  40. Spearhead

    Spearhead Moderator

    Contests require several reasons.
    • There could be an agreement that would run contrary to contest usage and the release guarantees the right to use.
    • The contest will probably want to use at least one of the photos to promote the contest the next time around, and that is commercial usage.
    • There could have been an invasion of privacy that the contest will be unaware of; a release can make this a non-issue.
    • Many contests use photos for other uses - see the terms of the contest - and these may require a release
    • Contests don't want frivolous lawsuits of the type suggested in the above discussion.
    So you can see there are numerous reasons for them to require a release.
     
  41. Most likely yes. I know more than a few portrait session "contracts" I've looked at online include model releases for numerous purposes. I suspect 90% or more clients don't read these forms and sign without reading or understanding.
    Voice your objection and ask for a refund on your session, if that would make you feel better. Or ask them to stop all together. However, the law is most likely on the photographer's side. The photographer may choose to quit selling the images in the name of good client relations. Or may not.
    Best wishes.
    Diana Currier
     
  42. Nelson,
    There are two (or more) sets of laws at work here. Ownership of copyright allows the owner to control a certain set of uses of the image (or other "work"). The 1st Amendment generally protects editorial and expressive "speech." However, an individual has "rights" as well. So an owner of an image can't necessarily do as he or she pleases with the image.
    In the US (as it varies from country to country), an individual has certain privacy rights, has "publicity" rights, etc. The typical conflict that can come about and is at the root of the concerns here, is that an individual has the right to control the use of their persona commercially. Now each state has implemented this in their own way so this is general - "commercial" means that the use of the image or personality to endorse a business, goods, services, etc. It may extend to the use of the person on a commercial product. This is a bit touchy as the use in expressive art, "news," etc., is protected under the 1st amendment, and the boundary of being used as "fine art" or a commercial product may not be clear and may not be defined the same way in all states. So it might be that the individual would have a right to stop the use of an image taken during a session for a separate commercial purpose. However, a pretty consistent requirement is that the individual be "reasonably identifiable" (or similar language). The requirement generally is that an independent party, the jury, etc., would be able to identify the subject, not that someone at the session or having clear knowledge of the circumstances and individuals could.
    In the case here, the picture of the daughters was described as "(the image shows them sitting at a piano from the back, from the neck down)." As such, it seems really unlikely that the image would meet a legal test of being identifiable, so there's really no legal grounds for the parents to stop the use. OTOH, it might be if the image was taken from the other side of the piano and showed two lovely girls face one, at the piano, the particular use could well be the sort that would require the permission of the subjects (or the parents/legal guardians).
    The other concern might be that while something may be legal, it might be enough of a surprise or sensitivity that the customer, even without legal recourse, has the impact of choosing to not do repeat business, would express disatisfaction with his experiences to other potential customers, etc., so there could be a negative impact on the business anyways.
     
  43. I am not convinced that this doesn't meet the work for hire test. If I commissioned a photographer to produce and artwork, portrait or photo of kids for a personal and private collection there might be a reasonable expectation that having commissioned the work it would then not be reproduced for the general public as that would detract from its uniqueness.
    I doubt too many people would be thrilled at the prospect of having commissioned a private work to then have the work become a ubiquitous poster.
     
  44. Spearhead

    Spearhead Moderator

    If I commissioned a photographer to produce and artwork, portrait or photo of kids for a personal and private collection there might be a reasonable expectation that having commissioned the work it would then not be reproduced for the general public as that would detract from its uniqueness.​
    Meaningless in terms of work for hire. Read the law.
     
  45. I did and I think you are wrong Jeff.
    Commissioned works
    Where a photograph was commissioned before 30 July 1998, the client is the owner of copyright unless there was an agreement to the contrary. For photographs commissioned after 30 July 1998, the photographer is the owner of copyright except if the photograph was commissioned for a private or domestic purpose.
    If the photograph was commissioned for a private or domestic purpose, for example, a family portrait, the client owns copyright, unless there is an agreement to the contrary.
    Where an artist is commissioned to create a photograph, portrait or engraving for a particular purpose, and the client owns copyright in the commissioned work, the artist may stop the work being used for any other purpose.​

    For other commissioned works—such as music and text—the creator owns the copyright, but the client is usually entitled to use the work for the purposes for which it was commissioned.​
     
  46. Geoff:
    I'm assuming you are outside the US, as it appears such commissioning rules exist, or existed, in Commonwealth countries and are somewhat analogous to the US "works for hire" idea. It would be especially helpful if you could provide a citation, as the laws vary from country to country.
     
  47. Geoff, different laws for different countries. Read the U.S. law, which is the focus here - as noted by the OP in Answer # 1.
    Perhaps this can shed some light on "work for hire" in the U.S. (note the "general common law of agency" for an employer-employee relationship and the scope of Section 101 Part 2):
    http://www.copyright.gov/circs/circ09.pdf
    More of the same:
    http://www.asmp.org/commerce/legal/copyright/wfh.php
    http://www.copylaw.com/new_articles/wfh.html
    http://www.keytlaw.com/Copyrights/wfhire.htm
     
  48. I know laws vary from state to state, in Virginia, when I was taking photography classes in college, my photography teacher told us that if someone is smiling and looking towards the camera, in VA that smile grants you the permission to use the photo. If someone is unaware of the photo being taking, and it shows them, and they have a problem with you using it, you can't use it. If their heads are turned, and they are unrecognizable, then you can use it. Thing is, if your trying to make a name for yourself, and have a bunch of pissed off people out there, using photos without their permission, even if it is legal, those photos may cost your business more than what you may make from using them. I've taken random shots at the beach, and had a lady ask not to take photos of her or her kids, so I deleted the few I had, apologized and went on. Who knows why people don't want any photos taken sometimes, they could be in witness protection for all you know and terrified. About the smiling law in VA, personally I would not even think of pushing it, to see if that holds up in court lol.
     
  49. my photography teacher told us that if someone is smiling and looking towards the camera, in VA that smile grants you the permission to use the photo.
    Was Justin one of the students?
     
  50. Better read up on the DiCorcia decision and use of an image even if the person is recognizable.
    http://www.photo.net/street-documentary-photography-forum/00FhJQ
    As 'art' anything is pretty much fair game and there isn't much you can do about it. This jewish gentleman tried and lost. Tiger Woods also sued an artist for selling paintings of Woods..., and lost. Tiger probably has more money and a more formidable legal team than most of us could marshall and he still lost. Art and freedom of the press have quite a bit of leeway in using your likeness.
    In the US 'work for hire' agreements need to be in writing. Oral agreements aren't worth the paper they are written on.
     
  51. I believe it would be a mistake to make the assumption that DiCorcia and/or the Woods case (ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003)) mean that anything "art" is fair and there is nothing that can be done about it. It's one thing to have a general concept of some of the arguments but any case will turn on the specifics of that case.
    There is a tension between the 1st Amendment rights of expression and an indiviual's privacy and publicity rights. Those cases didn't change that.
     
  52. "Was Justin one of the students?"
    Apparently, John, from the continuing discussion, your opinion is not as legally or morally watertight as you would think.
     
  53. Justin, you continue to have a curious interpretation of things you read.
    As to my moral opinion being less "watertight" than I may think, that's interesting since I did not express any opinions whatsoever about the morality of the issue. As to the merits of any legal issues, my comments were limited to correcting your misinterpretations of the materials you read and to illustrate that much of it was irrelevent in any event. Nothing here since has changed any of that. Moreover, the case cited relates to misappropriation/privacy rights issues, rather than your lenghty commentary about copyright issues. As to being a student of the teacher in West Virginia, its subtleties are best left to a different audience.
    The issues that are responsive to the original poster are if the he owns the copyright and if he misappropriated the likeness of the indivduals involved. If you insist that a one off session with no written transfer vests copyright in the client and that misappropriation extends to both unrecognizable people AND to art/editorial use then there is not much else I can do to help you.
    This is one reason why I suggest no one rely on our comments here as legal advice.
     
  54. "Model releases are for situations that involve misappropriation of images of people for commercial/advertisement/promotional uses (and the three other more rare invasion of privacy torts). Art prints are editorial, not commercial."
    I never disagreed with that basic statement. You seem to have latched onto my misappropriation of Jeff's comment to you.
     

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