Photographer selling prints from our portrait session?

<p>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?<br>

(the image shows them sitting at a piano from the back, from the neck down)<br>

Bill</p>

 

<p>I should add, this is in the U.S.</p>

<p>I think that the subjects have to be recognizable. But I'm not sure.</p>

<p>What exactly is your objection? I would understand if it was a privacy issue, but if their faces aren't shown...</p>

<p>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. <br>

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. </p>

<p>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.</p>

<p>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. </p>

<p>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. </p>

<p>As a first step, I'd re-read the contract.</p>

<p>Bill -</p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>Dave</p>

<p> </p>

<p>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.</p>

<p>Don't get legal advice from internet forums.</p>

<p> </p>

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.

<p>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".<br>

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.</p>

<blockquote>

<p>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</p>

</blockquote>

<p>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.</p>

<p>I agree with John - Don't get legal advice from internet forums....-Aimee</p>

<p>Here John:<br>

"A <strong>work made for hire</strong> (sometimes abbreviated as <strong>work for hire</strong> and <strong>WFH</strong> ) 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 <a title="Copyright law" href="http://en.wikipedia.org/wiki/Copyright_law" title="Copyright law" >copyright law</a> in the <a title="United States" href="http://en.wikipedia.org/wiki/United_States" title="United States">United States</a> and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author."<br>

Tell me how that proves your point.<br>

"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.</p>

<p>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.</p><p>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. </p><p>Why, when there is no harm to anyone, would you object?</p>

<p>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. <br>

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. <br>

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.</p>

<p><em>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. </em><br /><em></em><br />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.</p>

<p><em>Regardless of any shady clauses in any contract saying you hold the rights to the images. </em><br /><em></em><br />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.</p>

<p><em>According to </em><a title="Copyright law" rel="nofollow" href="http://en.wikipedia.org/wiki/Copyright_law" target="_blank"><em>copyright law</em></a><em> in the </em><a title="United States" rel="nofollow" href="http://en.wikipedia.org/wiki/United_States" target="_blank"><em>United States</em></a><em> and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author."<br />Tell me how that proves your point.<br /></em><br />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.</p>

<p><em>"restrict a lot of usage" Sorry, tell me what kind of usage you expect from MY family members, on MY coin? </em><br /><em></em><br />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.</p>

<p><em>This is not some artsy "street photo".</em><br /><em></em><br />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.</p>

<p><em>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.</em><br /><em></em><br />People often recieve "legal contact" after someone is unhappy about something that is perdectly legal to do. Legal contact is irrelevent.</p>

<p><em>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.</em><br /><em></em><br>

This issue, if its accurate, is a business issue well beyond the scope of my remarks.</p>

<p>This is why legal advice should not be sought from internet forums and my comments should not be used as such either.</p>

<p>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.</p>

<p>Justin, you need to read up on work for hire. Here is the relevant definition:</p>

<blockquote>

<p>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)</p>

</blockquote>

<p>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.</p>

<p>"you need to read up on work for hire"<br>

No, I don't really. I was just posting it because John seemed to think it proved his point.<br>

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. <br>

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.</p>

<p><em>"you need to read up on work for hire"<br />No, I don't really. I was just posting it because John seemed to think it proved his point.</em></p>

<p>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.<br>

<em><br /></em></p>

<p>Sorry. Jeff. Not John.</p>

<blockquote>

<p>would receive some paperwork from my lawyer.</p>

</blockquote>

<p>On what grounds? That you didn't like what they did? </p>

<p>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.</p>

<p>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.</p>

<p>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.</p>

<p>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).</p>

<p>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. </p>