is this commercial use?

[brad_farwell]

<p>Hi Folks-</p>

<p>Perhaps this is a stupid question (I'm sure someone will let me know if it is) -</p>

<p>I'm teaching at a photo school in NYC. I have a body of work I shot in Rome, in the Pantheon, ( http://www.bradfarwell.com/proj/pantheon/ fwiw.). No model releases/location releases/etc (it's non-commercial fine art work, which I've shown over there).</p>

<p>The school wants to use one of the photographs in an a small-distribution print ad for their classes. It seems like it could be considered promotional (since i'm not getting paid for it & it's hyping my work) and therefore non-commercial. But it also seems like I could be deluding myself. Any thoughts? I know they've used other artists' work for the same purpose, street photogs doubtless among them. I would like them to use the photo, because it's free promotion for me, and from a realistic POV, the chances of these folks seeing the ad and coming after me are very very low. However, they're non-zero, and I wanted to make sure I knew what I was getting into.</p>

<p>They're looking for an answer soon, so any help appreciated!</p>

<p><br /> brad</p>

<p>---<br>

brad farwell<br>

www.bradfarwell.com</p><div></div>

[Matt Laur]

<p>Doesn't matter if you're getting paid for them or not - using the images as part of an advertisement for the school's programs is likely to fall into the commercial bucket. The likenesses of that family will be serving the commercial interests of the school. Now... how much of a gambler you are - that's another question!<br /><br />Never the less, when looking for gen-u-ine oh-fishal legal advice, perhaps have 'em run it past whoever the school retains as counsel?</p>

[peter_ferling]

<p>"...the chances of these folks seeing the ad and coming after me are very very low."</p>

<p>http://www.photo.net/photography-news-forum/00Td45<br>

http://news.yahoo.com/s/ap/20090611/ap_on_fe_st/us_odd_card_photo_prague</p>

[david_henderson]

<p>Do you have any reason to believe that there is a distinction between "promotional" and "commercial"?</p>

[brad_farwell]

<p>Well, I believe (stop me if I'm wrong) that my artwork can be used, by me, to promote itself. ie- If I'm a street photographer and I have a show, I can use an image from that show on a poster. If I have a website I can use the images on that website. Etc. </p>

<p>I _believe_ that's different from using the picture above to sell, say, guidebooks or vodka. </p>

<p>After Philip-Lorca diCorcia's famous case with the rabbi, that image was still allowed to be in the exhibition catalogue, for instance. Also, Florian Bohm, who has a great book of NY street photos, has used those images on various promotional materials.</p>

<p>(and the links to people who have run into their images is well taken; those were the folks i was thinking of. Though a run in a small magazine (ala Gallery Guide) is less visible than an advertisement for a product.)</p>

 

[alec_myers]

<p>As I understand it, it would be the publisher of the work that would be responsible, not the photographer. As long as you don't indemnify the school you should be in the clear. But see a lawyer, if you're worried.</p>

[david_henderson]

<p>At the very least you need to tell the school in writing that you have no releases for the photograph, and so are unable to indemnify them. I think that you or more likely the school needs help on this. You do not want to sit back and risk your employer running into trouble, and for it then to emerge that you could have told them enough in advance to avoid the problem. However your school should have a process whereby the originators of publicity material get a legal sign-off before significant money gets spent .</p>

<p> My interpretation of "commercial" would not be the same as yours but I'm not a lawyer or even American so what do I know. That aside I think that using a photograph in a brochure for a course is little different from using the photograph in a brochure for, say, a cafe or a can of cola and IMO is likely to be commercial. What you propose is IMO not the same as using the image in a book, in a gallery show, or in an editorial context.</p>

[craig_gillette]

<p>I'd strongly suggest you actually read the diCorcia case decisions, not blogs, not comments, etc., from photographers offering what they either do or don't proclaim to be legal advice. There are some subtleties to the use of an image when used to advertise itself, when the primary use is protected expressive use.</p>

<p>BTW, the players in DiCorcia spent a ton of money just to get to the point that the case was dismissed over the time between the publication of the images and the discovery of the use and initiation of legal actions.</p>

<p>Beyond that, the image isn't being used to sell the image, it's being used to sell the school, right? Or perhaps more accurately, that's what's planned/suggested.</p>

<p>You and/or they should get competent legal advice. I'd suggest for the area where the image will be used - that it's probably not necessary to get advice covering where it was taken./ While the school may well have used similar types of images (student work, etc.) in similar ways, they should be doing this from a position of full understanding of the law so they can accurately assess the risks.</p>

<p>I'm reminded of a picture used by a telcom company in Australia of an American girl, and they where hit with legal actions. So to think that in a very much electronically shrunken world, using an image shot in one country in another country may not be as safe as one might think. Besides, maybe they were American tourists?</p>

[brad_farwell]

<p>Well, my abundance of caution caused them to run it by legal and subsequently not to use the images. Probably the legally prudent thing to do, but part of me still wishes I'd kept my mouth shut... I could use the exposure.</p>

<p>(FWIW, I'd also like to say that there is a difference, to me if not to the law, between using someone's vacation snap to sell toasters (or their sunset photo to sell beer) and using the art of someone who teaches at a school to promote the school. Perhaps not a courtroom-relevant difference, but it feels a lot less like a scam on my moral compass.)</p>