Photo useage rights ?

[phyliss_crowe]

<p>If I buy a photo of a person from a professional photographer with the original intent of hanging it in my living room, which I have done, then decide I'd like to use a copy of it for the cover of an e-book I'm writing, do I have to jump through any hoops to be able to do that? One assumes there's already been a "model" release signed because there is another photo of this same person taken by this same photographer that I'm also going to purchase. I say "model" because he doesn't do this professionally. He is/was a volunteer gunfighter re-enactor in Tucson, and I'm not sure I would be able to contact him if I needed to get his permission or something. The photo was taken 7 years ago. He may not be there anymore. Of course, I'd give credit when the book is e-published. </p>

<p>Thanks!</p>

[Spearhead]

<p>Totally illegal. You have no copyright privileges from buying a photo unless they are explicitly granted. Doesn't matter who is in the photo and you should never "assume" anything about legal documents.</p>

[andylynn]

<p>You don't need the model's permission, you need the photographer's permission. Buying a legit copy of a photo gives you implied permission to display <em>that copy</em> of the photo and to resell <em>that copy</em> of the photo to another person. Copyright law makes it unlawful to reproduce more copies.</p>

<p>What you need is a license from the photographer specifically to reproduce the photo and distribute it as an ebook cover. The photographer might choose to allow it for no fee, just a credit, or might require you to pay for the photo, or might not allow it at all.</p>

[jamesgysen]

<p>Phyliss, since you are in contact with the photographer anyways (buying another photo), <strong>discuss the usage with him/her</strong> and come to a mutually acceptable agreement They may be fine with giving you permission for a very reasonable price (or even for free in some cases) however usage rights are usually purchased and, as Jeff states, can never be assumed.</p>

<p> </p>

[Matt Laur]

<p>Whether or not the subject ever signed a release, do <em>you</em> have the release? If you don't, you can't take the chance. Totally separate from that is getting a license from the photographer to use his work. Selling you a print is <em>not</em> the same as granting you a license to publish the image. Start with that. If the photographer's not interested in letting you publish, or wants more than you want to pay, then that's that. If you <em>do</em> strike a deal for a license, <em>then</em> you can explore whether or not you need the subject's release to use his likeness in the selling of your product.<br /><br />Ignore these very real issues at your legal and financial peril.<br /><br />Another way to look at it: if you sell someone a copy of your e-book, would you be OK with someone else selling copies of it to other people, as part of their own publication ... and, of course, just giving you credit? Of course not. His photograph is no different than your book. That's what copyrights are all about.</p>

[jamesgysen]

<p>Andy, you're a faster typer than I... and very well explained. </p>

[Spearhead]

<blockquote>

<p>You don't need the model's permission, you need the photographer's permission</p>

</blockquote>

<p> <br>

This is wrong. The "publisher" is responsible for having a valid model release.</p>

[david_henderson]

<p>I think you need both a valid model release <strong><em>and</em></strong> the photographers permission (aka a licence) to use his photograph in that way. The latter has to be specific to you and your purpose. I don't think the model release does, but as the publisher you'd need to be sure (like by having a copy) of a model release that does not for example limit the photographer to making specific or sole use of the likeness.</p>

 

[William Kahn]

<p>This discussion is a good illustration of why lawyers have jobs. David may be right. Deal with the photographer first. It may turn out that the release he obtained from the model is general enough to cover further usage downstream from him. Even if that's true, you may want to CYA by contacting the model for confirmation and/or a specific release from him. If you can't find him, you will at least have done the "due diligence" part.</p>

<p>And, never, never "assume" anything in this kind of situation... ;-)</p>

<p>By the way: Good luck with your book.</p>

[sarah_fox]

<p>Ultimately some of this seems to become a matter of opinion. If I remember/understand correctly, the author of this book...<br>

<a href="http://www.amazon.com/Photographers-Legal-Guide-Carolyn-Wright/dp/0979035309">http://www.amazon.com/Photographers-Legal-Guide-Carolyn-Wright/dp/0979035309</a><br>

... argues that model releases are not necessary except for commercial uses such as product advertising, the argument being that the person's likeness is used for the tacit endorsement of some product. However, case law doesn't always swing the same way, and it is still possible to be sued -- and possibly lose -- without that model release. So a model release is considered good form and good insurance that virtually eliminates the possibility of being sued. In practice, almost all publishers will require one for their own CYA purposes.</p>

<p>Which of course has nothing to do with licensing the image from the photographer, which you MUST do, rather unambiguously.</p>

[Spearhead]

<p>The author of that book points out <a href="http://www.photoattorney.com/?p=1338">here</a> that there is some precedent, at least in one ruling, for requiring a model release for a book cover. She also recommends getting it no matter what.</p>

[daverhaas]

<p>Step 1 - Don't publish the e-book just yet.<br>

Step 2 - Get in touch with the photographer and ask them if they will allow you to use the image for a book cover - being an e-book has no bearing on the fact you need the photographer's permission to use the image.<br>

Step 3- Ask if the photographer has a release from the subject of the photo. While it is the publisher / User of the photo that needs to get a valid release, many photographers get releases at the time of shooting because it's easier than trying to track someone down.</p>

<p>Step 4 - If the answer is no - then you need to begin to do the leg work on getting the model's release yourself.</p>

<p>Dave</p>

 

[Spearhead]

<blockquote>

<p>Get in touch with the photographer and ask them if they will allow you to use the image for a book cover</p>

</blockquote>

<p> <br>

A legal agreement licensing the work is necessary. Just asking isn't enough.</p>

[phyliss_crowe]

<p>Better safe than sorry would be the preferred way to go, I agree.<br>

Maybe I'll just vacation in Tucson this year and snap him myself. He is rather handsome.</p>

<p>Thanks for all your input - astute and well informed as always!</p>

<p>Thanks for the well wishes, too. </p>

[phyliss_crowe]

<p>Just for curiosity's sake, this is the photo I bought and want to use for my book cover.</p>

<p>

<p>How often do you get this kind of capture off the cuff?</p>

[john_h.1]

Its possible that the photographer obtained a transferable model release for future users. Probably not unless future

transfers to commercial users were anticipated but, it doesn't hurt to ask.

[sarah_fox]

<blockquote>

<p>How often do you get this kind of capture off the cuff?</p>

</blockquote>

<p>Never. It frankly requires a bit of postprocessing work. Nice photo!</p>

[allenahale]

<p>Having seen the photograph in question, it seemed to me that the model was not readily recognizable. Any thoughts on how that affects the need to have a model release for use of the photograph in "commercial" work?</p>

[john_h.1]

Its seems a bit too close for comfort but a legit ssue.

[steve m smith]

<p>Whilst it might be foolish not to have a release, you only really need one if there is an issue raised by the model.</p>

<p>I think the image here falls into a grey area in that regard.</p>

[William Kahn]

<p>I think we may be overlooking something here. What rights, if any, may be owned by the City of Tombstone, or whatever agency/organization actually running the reenactment shows?</p>

[david_henderson]

<p>I'd imagine that for the vast majority of photographs featuring people, somone could use the photograph for commercial purposes without the "model" noticing or taking action if they do. You don't need a model release based on probabilities, you have it to protect you against consequences. I think the guy would consider himself recognisable. If I wanted to use the picture I'd get a model release (which might just exist already). I would absolutely not wait until the model raised a problem, and then try to negotiate a release with someone who knows he's got you. <br>

Your risk though- you'd probably get away with it.</p>

 

[dhbebb]

<p><em>there is another photo of this same person taken by this same photographer that I'm also going to purchase. ... I'm not sure I would be able to contact him if I needed to get his permission or something. The photo was taken 7 years ago. He may not be there anymore.</em><br>

I don't really understand this statement - the link on the page to which you refer is dead, suggesting that the photographer is not actively marketing his work and may not be traceable at all - so from whom do you plan to buy the second picture? A third party who has a copy in his/her possession? <br>

The legal position is that copyright rests with the photographer and any use in reproduction requires the negotiation of appropriate rights and the payment of a fee. However, it would be perfectly reasonable to use the picture if you have with all due diligence attempted to locate the photographer and failed, provided that you give the photographer a name credit and state in your work that you tried and failed to contact him. After all, given the probable small print run of your e-book, a $50 fee would be more than adequate.<br>

By doing this, your make it clear that you understand the copyright position and are willing to pay, given an opportunity. The question of model release I would forget, except in the unlikely case that you are using the picture in a way derogatory to the subject or in a way which implies endorsement of a product.</p>

[Spearhead]

<blockquote>

<p>However, it would be perfectly reasonable to use the picture if you have with all due diligence attempted to locate the photographer and failed,</p>

</blockquote>

<p> <br>

This is not what the law says. If the photographer can't be found, it's an orphan work, but currently, being an orphan work does not mean it is "perfectly reasonable to use." However, this is hardly an orphan work, the photographer is Rod Pasibe and he is on flickr. He posted photos on flickr last month.<br>

<br>

So please ignore this terrible advice. I'm always amazed when photographers suggest using photos with existing copyrights by other photographers.</p>

[dhbebb]

<p><em>the photographer is Rod Pasibe and he is on flickr. He posted photos on flickr last month.</em><br>

So the OP would have discovered this when making a diligent search, contacted him and negotiated repro rights - so what's the problem? To you this may be "terrible advice" - to me it's a situation which happens every day of the week. </p>