Parent mad at me for using their childs photo

[craig_gillette]

<p>You need to know the law where you are. That's critical because while some suggest there is no problem here, there are states where there are statutory penalties assessed in addition to any "damages."</p>

[fortunato_uno]

<p>More then likely he wants a poster of his dauter playing that includes her friends. I would send him a copy of the poster with the other children blacked out or watermarked. I would include a letter that explanes that you had to blank-out the other children for the same reason you sent him the poster. I would put it in the form of an appology.</p>

[osfania]

<p>1. Don't give him anything. Once he has it, it goes from being a photo to EVIDENCE.<br>

2. Apologize again.<br>

3. Don't use her photo ever again.<br>

4. Get releases next time or at least some type of agreement with the league about releases. If the league signs off on it, that should help you or at least mitigate your liability exposure.<br>

5. Check in your state about putting releases on the bill of sale.</p>

[john_h.1]

<blockquote>

<p>I would send him a copy of the poster with the other children blacked out or watermarked. I would include a letter that explanes that you had to blank-out the other children for the same reason you sent him the poster.</p>

</blockquote>

<p>The language leaves out the one thing the entire statement is focused on, namely, why the poster is actually being sent. There could be many reasons the poster is sent. This invites the father to reach multiple conclusions and causes associated problems. Also, The statement means one thing if the images are watermarked, another if redacted.</p>

<p>As to watermarking, it usually involves ownership issues causing a suggestion that the reason for sending the images involves ownership of the photo. That makes no sense and promotes even further confusion.</p>

<p>As to the statement with accompanying redactions, it can suggest a number of different things... That there actually is a requirement to redact people from images for sample demos (and the law in the jurisdiction may allow it), there is a requirement to redact people from images in general (since sending it and its likely use has no relation to business promotion), there was misconduct, there was actionable misconduct, compensation can be compelled, that the father has evidence of and an admission of illegal activity or general misconduct to present to others (including the sports league), other parents have similar claims they can pursue. The list goes on further.</p>

<p>Finally, sending the poster can embolden the angry father to sense blood in the water. I'm not giving this as legal advice but only that I, personally, would use other diplomatic means to bring the matter to a successful conclusion instead of sending any disjointed written explanations and material or anything else that appears negative for the father to share with others.</p>

<p> </p>

[simon_crofts]

<blockquote>

<p>Around here, no school will allow any photography of minors without parental consent</p>

</blockquote>

<p>We have the same problem over here - although most parents are fine with photography at school events, there are always one or two paranoids who have the potential to complain and spoil it for everyone else, so many schools end up playing it safe and banning photography all together at school events. This kind of paranoia and nannying angers a lot of parents and is a bit of a political issue. The result is that parents end up not even able to photograph their own children, children suffer because they are brought up in an environment where everyone is assumed to be a wierdo.</p>

 

[funcrunch]

<p>IANAL but I've been researching the issue of model releases since going pro two years ago. From my understanding, it is fine to display your photographs of people in your portfolio, online or off, without having model releases. However, if you are using said photos for promotional purposes - such as a business card, flyer, or poster advertising your business - you should have a release, as it implies that the subject(s) of the photo endorse your work. I have releases for the people in the photos on my business card for that reason. Yours would appear to be a similar case, but again I am not a lawyer or expert on the subject.</p>

[w_t1]

<p>From Facebook, TOS, so I would say it <em>is </em>similar, Mr John..</p>

<p><em>For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your <a href="http://www.facebook.com/privacy/">privacy</a> and <a href="http://www.facebook.com/editapps.php">application settings</a>: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License")</em></p>

[james_r2]

<p>"It's fairly presumptuous of you to do so. No amount of "public"-place rationalizing makes it polite behavior, regardless of its criminality."</p>

<p>Really? "Criminality"? <br>

The OP appears to be an officially sanctioned photographer for a community soccer league.<br>

He displayed a sample board at a league event to give parents an idea of the photos they could expect.<br>

How, exactly, does this situation rise to the level of criminal behavior?</p>

<p>TO THE OP<br>

Do-not give the father the sample board: it's not his property, and he's not the copyright holder in the image(s).<br>

DO send him a free, poster-sized copy of his daughter.<br>

NEVER apologize to a complaint, verbally or in writing: To do so implies that you acknowledge malfeasance on your part.<br>

Legally speaking, you are likely within your rights as the copyright holder of an image to use it for non-commerical<br>

(which means not re-selling, mass reproducing, or licensing the image for publication) promotional use. A sample board falls within this definition, as would photographs on view in a storefront portrait studio's display window.<br>

However, when the subject is children, emotional, not rational mindsets prevail.<br>

Tread carefully.<br>

To avoid possible issues in the future, it's probably best to contact parents before using their child's image for promotional purposes (at the same time, offering them a complimentary blow up poster of the child).</p>

<p> </p>

[john_h.1]

 

<blockquote>

<p>From Facebook, TOS, so I would say it <em>is </em>similar, Mr John.<em> For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your <a rel="nofollow" href="http://www.facebook.com/privacy/" target="_blank">privacy</a> and <a rel="nofollow" href="http://www.facebook.com/editapps.php" target="_blank">application settings</a>: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License")</em></p>

</blockquote>

<p>It's not even remotely similar since the terms above concern ownership and licensing rights which is a completely separate issue from whether someone's likeness can be used for promotional purposes. They are completely different subjects and analyzed under completely different criteria. They have nothing to do with each other. Its also a different subject from what we are discussing because these terms concern third party use. The use you described in your first post concerned display for personal use which, as mentioned, is not commercial use which is the topic of this thread.</p>

<p>The topics you are bring up have nothing to do with the issues being discussed here. The good news is that you can recognize that now if you encounter these kind of issues in the future.</p>

<p> </p>

 

[john_h.1]

<blockquote>

<p>Legally speaking, you are likely within your rights as the copyright holder of an image to use it for non-commerical<br /> (which means not re-selling, mass reproducing, or licensing the image for publication) promotional use.) promotional use.</p>

</blockquote>

<p>It looks like some words are missing or garbled here. If the explanation of non-commercial use is that it "means not reselling, mass producing, or licensing the image for publication", the explanation is incorrect. These are not elements of commercial/promotional/endorsement use. If that was not the intended explanation, it may be thought of as such by others so this should clear up any confusion.</p>

<p>Here is a good explanation of when model releases are required (subject to different laws of different jurisdictions)... http://www.danheller.com/model-release.html </p>

<p>There are also the practical issues like an angry father trying to get a photographer in bad graces with a sports league regardless of what the law is.</p>

[JDMvW]

<p>Aw for chrissakes, James, I just meant that even if it is legal, it's hardly a good idea. Calm down, I did NOT call it criminal.</p>

 

[william-porter]

<p>Zach R. writes,</p>

<blockquote>

<p>... some people are just overly paranoid.</p>

</blockquote>

<p>I wouldn't use the word "paranoid," but I suspect this is the basic point here.</p>

<p>Some parents in my experience are simply very touchy about the use of their children's image online. We're in a scary new world where it's very difficult to assess the risks that our children face. A lot of parents make really bad assessments — like, they'll complain to a photographer (it's happened to me more than once) about their kid's picture appearing on a school web site (without a name), but they'll let the kid spend hours on the Internet without paying attention to what the kid is doing there. Still, it's just hard to be a parent these days, and some parents at least get upset about the risks that they perceive.</p>

<p>I suspect that the o.p. did nothing wrong by using the image, and I wouldn't apologize personally. But I would take the easy steps required to make the parent happy and be done with it.</p>

[james_r2]

<blockquote>

<p>It looks like some words are missing or garbled here. If the explanation of non-commercial use is that it "means not reselling, mass producing, or licensing the image for publication", the explanation is incorrect. These are not elements of commercial/promotional/endorsement use.</p>

 

</blockquote>

<p>Apologies for any misunderstanding on the part of the reader. The word "commercial" can mean different things: The original comment was based on the definition of the term "Commercial" as in commerce: As in the publishing and selling of a mass-produced image, or the attachment of an image to products, for the purpose of monetary gain. Of course a model release is required when moving an original image on to an end user/client for the purposes of commercial exploitation/reproduction: However, the scenario described by the OP hardly meets that threshold:<br>

The OP was using a single reproduction of an original image as part of his sample portfolio. The subject(s) are not public figures, and as such, do-not expect, or command commercial/ promotional value as high-profile endorsees of a product/service. Nor is there any implied association, endorsement, or quote attributed to the subject(s).<br>

Nor is the OP using the original image in a montage for mass-marketing - television commercials, billboard or bus ads, bulk mailings, or flyers & etc., all of which could potentially meet the other definition of the word "commercial".</p>

<p>If this scenario were ever to be litigated, the plaintiff (the father) should be prepared for significant legal fees: No local court or general practice local lawfirm can be expected to deal with the myriad (and appealable) intricacies of copyright law, and the defendant's lawyer could simply present a defense of not meeting the threshold of litigation, and file appeals up the judicial ladder in the unlikely event that they lost.</p>

<p>The bottom line is this: the described scenario does not rise to the definition of exploiting an image for commercial gain (by any definition of the term) without permission.</p>

<p>As to privacy issues, the two facts that a judge would consider are:<br>

1<br>

The child was actively engaged in a public sports league, with the tacit permission of her parent(s), and as such, was within the public view. This is not the same as an event where privacy, or the limitation of the public to varying degrees, could be reasonably expected to be maintained.<br>

2<br>

The child's original image was created by the OP without complaint, and in fact, purchased by the parent: Again, tacit permission is implied, to the extent that the parent had voiced no previous concerns with the capturing of their child's image - which presumably had to have been subsequently publicly displayed for the parent(s) to view and purchase.</p>

<p>Under these circumstances, were the offended father to approach me with the idea of litigation, I would (and have) gently suggest(ed) to them that no lasting harm had been intended or done, to accept a complimentary poster of their budding olympian, and move on.</p>

<p>As a side note; on the subject of privacy expectations in the public marketplace, the following article on nussenzweig v. dicorcia is instructive.<br>

<a href="http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia">http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia</a></p>

<blockquote>

<p> </p>

</blockquote>

[john_h.1]

<blockquote>

<p>If this scenario were ever to be litigated, the plaintiff (the father) should be prepared... ...to deal with the myriad (and appealable) intricacies of copyright law.</p>

</blockquote>

<p>As already discussed above, copyright law (which concerns who owns an image) is completely irrelevant to the issue here which involves use of one's likeness for commercial promotion (whether someone using the image owns it or not). Completely seperate and distinct issues from each other.</p>

<blockquote>

<p>as to privacy issues, the two facts that a judge would consider are:<br>

1 The child was actively engaged in a public sports league, with the tacit permission of her parent(s), and as such, was within the public view. This is not the same as an event where privacy, or the limitation of the public to varying degrees, could be reasonably expected to be maintained.<br>

2 The child's original image was created by the OP without complaint, and in fact, purchased by the parent: Again, tacit permission is implied, to the extent that the parent had voiced no previous concerns with the capturing of their child's image - which presumably had to have been subsequently publicly displayed for the parent(s) to view and purchase.</p>

</blockquote>

<p>None of these many factors are relevant to determining whether commercial misappropriation of one's likeness exists which is the issue in this thread. Some of these have some relevance to other invasion of privacy torts not at issue here.</p>

<blockquote>

 

</blockquote>

[james_r2]

<blockquote>

<p>None of these many factors are relevant to determining whether commercial misappropriation of one's likeness exists which is the issue in this thread. Some of these have some relevance to other invasion of privacy torts not at issue here.</p>

</blockquote>

<p>respectfully disagree: as stated, commercial application/misappropriation is not at issue here: OP is not using the image in the accepted definition of the term commercial: he is using the image for very limited promotional purposes intended for a specific (and captive) audience. As such, he is well within existing accepted practice. Raising the topic of tort law is overstepping the reasonable boundaries of this specific issue. My original comments stand.</p>

 

<blockquote>

 

</blockquote>

[craig_gillette]

<p>We aren't discussing the dictionary definition of commercial. The OP very clearly states he is using the image to advertise, even you point out that he is using the image in advertising. California has a separate and distinct codification of this in it's Civil Code. Other states may codify it differently or deal with it as a Common Law "privacy" tort. Not "everbody does it" and the law doesn't usually accept that as an excuse and certainly neither ref. make exceptions for only a little advertising or only a small audience.<br>

Here's a Common Law reference:</p>

<p>http://www.cas.okstate.edu/jb/faculty/senat/jb3163/privacytorts.html</p>

<p>Here's the definition: "<strong>Appropriation</strong> -- Use of a person's name, likeness or identity for trade or advertising purposes without consent."</p>

<p>Here's California information:</p>

<p>http://library.findlaw.com/1998/Feb/1/130405.html</p>

<p>"3344. Use of Another's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.</p>

<blockquote>

<p>(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs."</p>

<p> </p>

</blockquote>

[john_h.1]

<blockquote>

<p>commercial application/misappropriation is not at issue here:</p>

</blockquote>

<p>Its the entire issue. Its what the whole thread is about.</p>

<blockquote>

<p>OP is not using the image in the accepted definition of the term commercial: he is using the image for very limited promotional purposes intended for a specific (and captive) audience</p>

</blockquote>

<p>The fact that the is limited is irrelevant. Also irrelevant is whether its for a specific or captive audience. None of those thing are elements of commercial/promotional/endorsement use. You keep making new criteria for what amounts to misappropriation with every post. You are finally getting closer in that work sample use will probably fly in many, if not most, jurisdictions but that is a different issue than this latest new 'limited promotion' use and' specific or captive' audience stuff you bring up. In jurisdictions that follow the endorsement model these criteria are, again, irrelevant. These issues you raise make no difference.</p>

<blockquote>

<p>Raising the topic of tort law is overstepping the reasonable boundaries of this specific issue.</p>

</blockquote>

<p>The OP asked, "Does he have any legal action and can he sue me and win?" That makes tort law the entire point of the thread.</p>

 

[roger_dennis]

<p>John Henneberger is spot on in his analysis of the most important issues here. This is definitely a tort / consumer law case. Tort law varies widely from state to state.<br>

THE ORIGINAL POSTER IS,WISELY, NOT POSTING further on the topic, so we don’t know what city or state he lives in.<br>

We also do not know:<br>

2 Who owns the league. city, county, school, private, church, non-profit?<br>

3 Who owns the soccer facility<br>

4 Who owns the land public or private, leased, rented<br>

5 Where Mr Donovan was standing when he snapped the photo - public, private, grass, street, sidewalk<br>

6 Whether or not Mr Donovan had any agreement with the league, or permission<br>

The unknowns and variables are way too complex for us arm-chair-non-lawyer-types to figure out. And we aren’t supposed to be giving legal advice anyway. We’re not lawyers.<br>

However, a signed model release would have mooted all of the above questions.<br>

While one of the earlier posters suggested that since the displayed photo was not offered for sale, there was no harm. I would suggest that the father could ask for both a modeling fee, and royalties from all of the sales from this event, and downstream goodwill resulting, since it could be argued that the photog benefited monetarily in increased sales, and further it could be argued that use of the photo tacitly implied endorsement of the photog by the father/child. (Photo used without permission, photog benefits, no remuneration, ergo, misappropriation)</p>

<p>It might be time to consult with a lawyer for some suggestions. Or maybe get a league representative to help with talks. Maybe hire a business counselor for a brief time. This calls for diplomacy and tact, and some humility. Be careful not to insult the father or hurt his feelings, as he may lawyer-up to show his strength in this case. He does appear to have the upper hand on this one.</p>

<p>It’s unfortunate, but the negative stories we hear about the internet combined with erosion of personal privacy have unfairly tainted honest, hardworking photographers.</p>

<p>Roger Dennis</p>

[john_h.1]

<p>Certainly I agree with Roger Dennis. Also, despite the legal questions there are also good suggestions about not asserting legal rights and pursuing, instead, as much as possible, business practicalities of resolving the personal feelings and avoiding alienating the league officials.</p>

<p>Even if the battle can be won, the war could be lost as a result. Assert a legal right and tick off everyone and lose the access.</p>

[akgraham]

<p>I suggest telephoning the parent to see what's behind this - maybe arrange a meet if they live or work nearby. The communicative value of an email is so much poorer than face to face.</p>

<p>In my experience the first casualty of "lawyering up" is any chance of a friendly resolution and whether or not you do so, this won't even get as far as the court steps.</p>

 

[bill c.]

<p>To Dennis Williams-- NO! No! No! No! If the photographer uses the image to promote himself, that is freaking ADVERTISING! What don't you people understand about that? A model release is required for this kind of use, or at least some sort of permission.</p>

<p>While it may be rare and totally unprofitable to pursue a lawsuit against it, legally you should still have a model release even if all you are doing is putting a photo of someone in your portfolio. Showing art or writing, etc. to more than three members of the general public is LEGALLY considered "publishing" (though there are exceptions for professional critique, etc.). I won't even use an image I took of a bride in my portfolio without permission, but I have such permission built into my contracts.</p>

<p>The parent might want the poster to confirm that the child's image will not be used again. I'd offer to sell it to him at a discount rate, then set your regular rates very high. -BC-</p>

[chris_donovan1]

<p>Update- I ended up having only 2 8x10's of her on my sales board, I ripped them off the board and sent them to him. I havent heard back and that was about ten days ago. Ive been in business for over 13 years and this was the first time i had a parent react like this. Im very lax when it comes to using my photos for my own promotion BUT i completely understand where this guy coming from- he wasnt there this year and hes hearing 2nd 3rd hand from other parents that saw his daughters picture as a sample that day. I was nervous though, we all know the overhead in running a pro photo buss. lawsuits of any kind can cripple the small business guy.</p>

[john_h.1]

<blockquote>

<p>"To Dennis Williams-- NO! No! No! No! If the photographer uses the image to promote himself, that is freaking ADVERTISING! What don't you people understand about that?"</p>

</blockquote>

<p>Most of us understand that but additionally understand that portfolio use is frequently deemed an exception to the general rule on advertising/commercial use.</p>