Yet another release questions

I've searched for an answer but haven't found anything decisive yet.

Back in 1998 I shot a photo of a mock semi-truck vs. school bus

accident for rescue training complete with fake blood, etc. One

photo I have is of three firefighters escorting a girl out of the

bus. The photo made the cover of many local papers and it was never

used again. Fast-forward to today and I have the chance to sell the

photo to a rescue oriented calendar.

 

Since the photo I took was originally used for editorial use, I

never bothered to get any model releases. Am I out of luck now since

I didn't get releases or is a calendar considered editorial use

since the image is not selling or promoting anything?

 

This editorial vs. commercial area is really confusing.

 

Todd

You could find a lawyer. You could use Photoshop to blur the face (a lot) of the youngster. Have you attempted to contact the school and see if the girl's parents are in the area? The parent(s) would have to sign a release. The company publishing the calendar (if wise) would require a release before using the photo.

We need another new forum: "Free Legal Advice from Non-Lawyers."

 

<<or is a calendar considered editorial use since the image is not selling or promoting anything?>>

 

If that argument were an airplane, it would not need the oxygen masks. No risk of getting far enough off the ground to risk depressurization.

 

Yes, there are times when a potential use of an image seems to be neither fish nor fowl, neither editorial nor commercial.

 

If you cannot get releases for the folks who are recognizable in the photo, the safest course is not to sell the photo to anyone other than a news outlet of some kind.

 

You could almost certainly get away with selling it for other uses (if the buyers are not particularly fussy about maintaining records of releases).

 

The part where a real, live attorney comes in handy is explaining the merits of a business proposition that rides (at least in part) on the phrase "almost certainly get away with..."

 

Have fun,

Wow, aren't laws fun?!

 

Toddd

Todd,

<p>

Under the umbrella of "free advice from non-attorney" I think you've answered your own question. </i>"...and I have the chance to sell the photo..."</i> - the operative word here is <i>sell</i>. That, by definition, is commercial use on your part regardless of the intent of your customer/client.

<p>

Disclaimer: My sole basis for this opinion is three semesters of contract law.

Crap - if you don't mind me saying so. Another example of free legal advice being worth what you pay for it (actually less, since it may cost you money). I assume you failed the course!!

 

I can SELL my picture to a newspaper and it's NOT commercial use. Being paid has NOTHING to do with commercial use. I can GIVE my picture away for FREE to a company who use it in an add and

I can STILL get into trouble if I don't have a release for the model/property.

 

In my opinion a calendar is the same as a greeting card and it's commercial usage. It's not editorial. Whether you get paid for it or not. That's not what "commercial" means. In the end the only person who's opinion counts is the judge if someone hauls your ass into court.

 

I am not a lawyer. If you want legal advice, find someone who is!

<i>"Crap - if you don't mind me saying so."</I>

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I don�t � I was wrong due to a misunderstanding of the term commercial as used in this context.

<p>

<I>"I assume you failed the course!!"</I>

<p>

Actually, I passed. The problem is it was so long ago I forget when it was, and a lot of brain cells have gone to the great beyond in the interim. ;-)

<p>

I presented this scenario to an acquaintance who is a practicing attorney (corporate, not trademark or copyright) and he offered a number of opinions.

<p>

<u>Opinion #1:</u> �had to do with lay people giving legal advice. <b><I><u>DON�T!!!</u></I></b> (He was quite verbose on this but decorum prevents me from elaborating.)

<p>

<u>Opinion #2:</u> Don�t rely on the opinion of any attorney, including him, who does not specialize in a given area of law in a given jurisdiction.

<p>

<u>Opinion #3:</u> Regardless of any legal opinions from any source the final determination is a result of the judicial and appellate process (meaning even if you�re right you can still be sued).

<p>

<u>Opinion #4:</u> The selling of the photo in this scenario is a commercial transaction but does not require a release. The issue (regarding the release) would arise as a result of the eventual <b>use</b> of the photo.

<p>

If the photo were published in a news/editorial publication as a news/editorial item without a release there would be no issue. If it was used in the same publication as part of an advertisement a release would be required. Thus the same photo could be used twice in the same publication and the requirements would differ for each use.

<p>

<u>Opinion #5:</u> Generally, it�s the publisher who has the responsibility of insuring the existence of or obtaining the release not the photographer. In practice it's much easier for the photographer to obtain the release.

<p>

The photographer would incur liability if the photo was sold with the assurance that all releases had been obtained and the publisher relied on that assurance, though this would not relieve the publisher of liability unless so ruled by the courts.

<p>

<u>Opinion #6:</u> Based on the limited information available the calendar in this scenario is commercial use and would require the appropriate release(s).

<p>

<u>Opinion #7:</u> Read opinions #1, #2 and #3 - reread opinions #1, #2 and #3 - then re-reread opinions #1, #2 and #3 - and then�..

<p>

I now retire from this conversation with my head low and my tail between my legs. Should there be any further questions I refer you to opinions #1, #2 and #3 above.

<p>

<�slithers off into the sunset vowing to never again act counter to opinion #1�)

Thank you for the great response. My check is in the mail.

 

Todd

I'm in 100% agreement with points #1-7.

 

I would add that although it is the publisher's responsibility to make sure a release is available that does NOT protect the photographer from a potential lawsuit from either the offended party or the publisher. I'm 100% certain that the right lawyer in front of the right court could make an argument that the photographer was at least in part responsible if one of his/her images was used in an inappropriate manner and without a proper release, even if the photographer has never claimed a release was on file.

 

The best defense in that case would be an invoice stating explicitly and clearly, in writing, that no releases were available or implied for the image being sold. That invoice should be signed by the buyer. CYA as they say!

If I'm not mistaken, what is being referred to is an indemnification agreement. Check ASMP for forms. I recommend getting their book, ASMP Guide to Professional Business Practices in Photography (6th Ed.) which adresses many questions. However, I also advise spending the $ to have a lawyer review your documents. I did just that recently and it was $300 well spent.