Photo useage rights ?

[dhbebb]

<p>Just to be totally clear - the OP was incorrect in her assumption that Rod Pasibe is impossible to contact - a 1-minute Google search reveals these contact details:<br /> http://www.redshutterstudio.com/abt.html<br /> This being the case, the OP should of course contact him to negotiate repro rights and should NOT reproduce his work without these.<br>

My original advice stands for cases where, despite due diligence, the author of work is impossible to locate.</p>

[Spearhead]

<blockquote>

<p>My original advice stands for cases where, despite due diligence, the author of work is impossible to locate.</p>

</blockquote>

<p><br />It's terrible advice and violates copyright law, exposing someone to legal problems. The inability of one person to find the photographer is meaningless. If there is a change in how orphan works are treated, it might be different. But as it stands, you are recommending a complete violation of a photographer's copyright. Please stay off my web site, I don't need any more people lifting my photos illegally. </p>

[dhbebb]

<p><em>Please stay off my web site, I don't need any more people lifting my photos illegally.</em><br>

Jeff I can appreciate that this is a sore point for you, since you are dealing with people in the music world with little money and even less knowledge of, or interest in, copyright law. I can assure you that I have no interest in stealing your work or anyone else's - furthermore, since your website has your name at the top and a copyright notice and contact details at the bottom, no one would have any excuse to use your work without paying.<br>

This problem affects me personally with my small handful of historic pictures of David Bowie - particularly since these were featured in an exhibition at London's National Portrait Gallery and full-size unwatermarked files were sent out with the press pack, these images have popped up on numerous personal websites, which in each case is a technical copyright violation, for which there is no excuse (a Google search for "David H. Bebbington photographer" brings me up top of the list). At the same time, I would be crazy to waste time pursuing all these "illegal" users for repro fees - I do this only if someone is making money from my pictures. </p>

[phyliss_crowe]

<p>Um, guys. I didn't say I can't locate the photographer. I'm working with him now about the second photo of the Ranger, and I've been exchanging emails and phone calls with his wife. They're Red Shutter Studios.</p>

<p>I said I may not be able to contact the RANGER because his photo was taken by Rod 7 years ago. And yes, he would be recognizable because the second photo of him is a full facial and in the same costume, both of them taken the same day at the same location. Who knows how long he's been doing this? Maybe years. People will recognize him. It's one of the reasons I started this thread. And the reason you can't see his face in the "street" photo is because like Rod said, those re-enactors were initially camera shy.</p>

<p>Everything else aside, I WILL ask Rod about the license and I WILL contact the folks who run and maintain the Tuscon Old West town they use for their shows. Hopefully, they'll be able to set me on the path to finding my Ranger. Then I can work with him about the book cover. That part of the process is relatively without cost. And I need to get on it because I just completed my book tonight! whew!</p>

<p>Thanks again for your help!</p>

[dhbebb]

<p>Glad we got there in the end, Phyliss! Given your explanation. your position is very simple - you just talk to Rod and ask him how much he would charge for you to use the 2 pix in your e-book. It is the photographer's responsibility to ensure that any pix sold for a particular purpose have the necessary rights attached - furthermore, it is good (and normal) practice for photographers to note details of subjects and indeed get model releases completed so that pictures can be sold for any use.</p>

[William Kahn]

<p>Hope it all works out smoothly for you, Phyllis. And, of course, we'd all like autographed copies of your book... ;-)</p>

[Spearhead]

<blockquote>

<p>It is the photographer's responsibility to ensure that any pix sold for a particular purpose have the necessary rights attached</p>

</blockquote>

<p> <br>

This is incorrect. The "publisher" is responsible for the release, not the photographer, unless the photographer also happens to be the "publisher."</p>

[dhbebb]

 

 

<p><em>This is incorrect. The "publisher" is responsible for the release, not the photographer, unless the photographer also happens to be the "publisher."</em></p>

 

 

So people who buy from picture agencies then do their own rights clearance? I don't think so!

 

[david_henderson]

<p>David. You need to separate the issue of who needs a release (the publisher is the one that gets sued if there isn't one when there should be) from the practical matter of who generally sources the release as a matter of practical expediency. </p>

<p>The fact that its generally the photographer who is best placed to gain a release doesn't mean its his responsibility. The publisher of the image bears the responsibility to ensure that a suitable release (ie one that covers his purpose, and which covers the publisher) is in place before publication. In most of the bigger well organised companies, the Marketing Dept. need legal clearance on every advertising/ promotional piece or packaging design from their legal function before they get approval to print, and one of the aspects covered is whether any necessary releases are in place.</p>

[Spearhead]

<blockquote>

<p>So people who buy from picture agencies then do their own rights clearance? I don't think so!</p>

</blockquote>

<p><br />That's why the agencies usually require photographers to provide releases. If they don't, the uses are limited, but it is always the publisher who must have a release. I recommend reading up on the laws in this area, they are not that difficult.</p>

[dhbebb]

<p><em>... practical expediency ...</em><br /> This is a very good phrase. While the statements by Jeff and others are correct in a legalistic sense, I would recall that what this thread is (or was) about is trying to give the OP, a newcomer to publishing, straight simple and practical answers to 2 questions:<br /> 1) Can I reproduce a picture of which I have a paid-for copy on my wall without further ado? Answer - no, you need to negotiate rights with the photographer.<br /> 2) Do I have to go way back to the subject of the picture to get rights clearance? PRACTICAL answer - no, if you ask the photographer in writing for rights to use picture ABC for purpose XYZ, you can assume the photographer has cleared the appropriate rights.<br /> Professionals know that a "publisher" is a person or organization which places material in circulation, but to newcomers and the man in the street, a publisher is a company like Random House. and I wished to avoid creating the impression that commissioned authors deliver manuscripts to publishing houses together with a bunch of uncleared pictures for which they expect the publishing house to negotiate rights.<br /> Similarly, the PRACTICAL answer to "orphan" works is this - if a consumer of images makes reasonable efforts to clear copyright and is left with some uncleared images, it is accepted practice to publish these credited to "Photographer unknown" and put a note in the acknowledgements in the book in question inviting uncredited photographers to get into touch. This makes it clear that you are willing to pay but have not been able to - I have NEVER heard of any author being sued, or any photographer complaining, about this practice. I get involved in this process from time to time myself - authors ask me if certain pictures are by me, if they are not I try to recall who the author was, if I can't the book publisher proceeds as described above.<br /> All these considerations pale into insignificance besides phenomena such as YouTube, with millions of unpaid-for uncredited copyright movie clips and not a lawsuit in sight :-).</p>

[Spearhead]

<blockquote>

<p> you can assume the photographer has cleared the appropriate rights.</p>

</blockquote>

<p> <br>

"Assumptions" are how people get in serious legal trouble. This is terrible advice.<br /><br /></p>

<blockquote>

<p> if a consumer of images makes reasonable efforts to clear copyright and is left with some uncleared images, it is accepted practice to publish these credited to "Photographer unknown"</p>

</blockquote>

<p><br />It's completely illegal. There are no special privileges for orphan works. There is no law protecting people who use orphan works.<br>

</p>

 

 

<blockquote>

<p>All these considerations pale into insignificance besides phenomena such as YouTube, with millions of unpaid-for uncredited copyright movie clips and not a lawsuit in sight :-).</p>

</blockquote>

 

 

The DMCA covers youtube. Thousands of videos are removed regularly for DMCA violation.

 

<p> </p>

[dhbebb]

<p><em>"Assumptions" are how people get in serious legal trouble. This is terrible advice.</em><br>

Jeff, we're just going to have to agree to disagree on this - I've worked in media as a photographer, journalist and translator since 1969 and every word I've written on this thread is based on my own professional experience. <br>

I simply cannot believe that you, apparently a professional too, believe that legal redress is always available on a realistic PRACTICAL basis, no matter what the theory says, for every technical infringement of copyright. In particular, publishing on the web automatically means your images will be lifted and used in blogs, Facebook pages, etc. Beyond posting at screen res only and watermarking images, there is nothing anyone can realistically do about this. Not to mention the numerous areas in which copyright law is farcical and is ignored by mutual agreement, such as translation - in theory my translations are my copyright and are licensed to clients for one use only - I should get extra money for repeat use, but this never happens and no one in the trade expects it to. I get paid a large amount of money up front and leave it at that.</p>

[steve m smith]

<blockquote>

<p>I would be crazy to waste time pursuing all these "illegal" users for repro fees - I do this only if someone is making money from my pictures.</p>

</blockquote>

<p>I think that's a very good way to deal with these things. No point chasing someone for money they haven't got - especially when it would only be for a minimal amount and is of no real personal loss.</p>

[Spearhead]

<p>Well I don't believe in willfully violating copyright like you do. There is no "orphan works" legislation in place to allow random usage of photographs. If someone can't find me, they can't use the photo, period. </p>

 

<blockquote>

<p> publishing on the web automatically means your images will be lifted and used in blogs, Facebook pages,</p>

</blockquote>

<p> <br>

And you think that makes it fine for people to willfully violate copyright. I don't.<br>

</p>

<blockquote>

<p>such as translation</p>

</blockquote>

<p> <br>

I don't care about translation. I care about photography and protection of photographer's rights. You don't. That's where we disagree.</p>

[danmarchant]

<p>Sorry David but Jeff is certainly correct. There is currently no basis in law for the concept of orphaned works. A work protected by copyright is protected regardless of if you know who the copyright holder is or how diligently you have attempted to trace them. Suggesting that it is OK for someone to use a copyright work because they can't find the copyright holder is bad advise - anyone doing that would be exposing themselves to potential action for copyright infringement.</p>

[danmarchant]

<blockquote>

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

</blockquote>

<p><em><br /></em>The problem with this advise is that once the model has raised an issue you are already screwed. It is like saying you don't need your Dad's permission to use his car unless he catches you.</p>

[dhbebb]

<p><em>There is currently no basis in law for the concept of orphaned works. A work protected by copyright is protected regardless of if you know who the copyright holder is or how diligently you have attempted to trace them.</em><br>

Correct! But ... as I have said several times, actual practise in the world of publishing is as I have described - credit to "Photographer unknown", note in "Acknowledgements" (however much that may horrify people of a delicate sensibility). I repeat - I know of no case where any copyright holder has objected to this - suing someone because they're asking you to contact them so that they can give you money would be just a <em>little</em> eccentric. </p>

[danmarchant]

<blockquote>

<p>Correct! But ... as I have said several times, actual practise in the world of publishing is as I have described - credit to "Photographer unknown", note in "Acknowledgements" (however much that may horrify people of a delicate sensibility).</p>

</blockquote>

<p>Your right, the world is full of people too lazy, ignorant or just criminal to do the right thing. <br>

And of course they wont sue you.... they don't need to. You basically gave up any negotiating leverage you might have had over the price because the alternative is vastly more expensive. Worse still, if you're in the US and it turns out they registered the copyright you just committed a federal offence with a penalty of up to $25,000. <br>

Not got the money to pay damages, or even the $5,000 I want as a settlement? That's fine I can wait. I have X years to file suit so your business now has a potential law suit hanging over it that can be activated any time your business starts to make money.<br>

And all of the above for what? The internet is literally bursting with great images that are available for licensing for a reasonable fee. Given that fact there is simply no justification for exposing your business to the above risks. Suggesting that someone do something illegal as part of their business, just because others do, is bad advise, it's that simple.</p>

[dhbebb]

<p>Dan, I acknowledge (yet again) that your statement of the legal position is technically correct BUT can you point to one single instance where anyone has EVER collected huge damages at the level you describe (even allowing for the possible activities of ambulance-chasing lawyers)?</p>

[danmarchant]

<p>The photographer Brandon Stanton just got a $25,000 settlement from DKNY for using his images without permission in a store window.<br>

I also know of one photographer who posts in the PTN forums who got a six figure settlement. His attorney is Carolyn E Wright (http://www.photoattorney.com/) who makes a living specialising in photography law - so there must be enough settlements happening to keep at least on law practice going. </p>