Watermark or Advertising?

[charles_mundy]

<p>I shoot youth sports on the weekends and post images on Facebook with a small watermark in the corner. During the events in question I've received a media vest from the event organizers on the grounds that I post the images online for kids to share. I received an email from a bicycle manufacture claiming the images I posted were being used for self promotion and therefor would need a model release for each rider and from him as the bicycle manufacture. </p>

<p>By placing a watermark on an image does that make it an advertisement for services?</p>

<p>Thanks in advance for any input.<br>

Charles</p>

[lornesunley]

<p>Sounds more like the bicycle manufacturer needs a model release to use the images in their advertising...<br>

The manufacturer is spouting nonsense if they think you need a model release from the bicycle manufacturer to use the photos.</p>

[ellis_vener_photography]

Let the bike manufacturer know that you'd like to know which photos contain images of his bikes so you can take them

down and deprive him of his free marketing through your efforts. Also that you'll be sure to let the group organizers know

so they can steer riders to other brands of bikes.

 

(I'm kidding, but not by much. Your best approach is just to ignore him, and to register the copyright on your photos. That way when your photos show in his ads or social media posts you can sue him for infringing on your copyrights.)

[charles_mundy]

<p>(I'm kidding, but not by much. Your best approach is just to ignore him, and to register the copyright on your photos. That way when your photos show in his ads or social media posts you can sue him for infringing on your copyrights.)<br /> <br /> Funny you should say that. This whole thing came about because this summer I filmed a three minute video clip of a friend of mine and this bike company used some of the footage in a commercial that was shown at a very large public event and online. When I contacted the owner he said he had every right to use my video since one of his bikes was in the video. When I told him he didn't he said he'd come after me for one, even making the video and two, for all the images I posted with my watermark on them. He's claiming that my watermarked images are a form of self promotion and therefor need a release from the rider and his permission as the owner of the bike in the image.<br /> All of this sounds like absolute crazy talk but I've been asking around to all my editorial clients and other photographers to get a second opinion.</p>

[ellis_vener_photography]

Are you in the USA?

[qalam]

Is the bike company right? NO! Consider the analogy of a wedding photographer who posts wedding pictures on his

facebook page. Can he be sued by the companies that fabricated the church pews, altar, organ, windows, and

vestments?

 

As for the people on the bikes, their ages are unimportant. You do not need a release for non-commercial use of pictures

taken in a public place or a private place open to the public.

[charles_mundy]

<p>Yes I'm in the US. I have an IP lawyer sending them a bill for the video footage but I just wanted to make sure he didn't have a reason to come back at me and counter.</p>

[john_h.1]

<blockquote>

<p>"You do not need a release for non-commercial use of pictures taken in a public place or a private place open to the public."</p>

</blockquote>

<p>The location is irrelevant to the issue raised by this thread but, since it is brought up, it should be clarified that public location and accessibility is not, by itself, the standard. More analysis is required and there have been a small amount of cases where people out in the open in public were afforded such privacy rights. A Georgia wardrobe malfunction case I recall as one.<br /><br />http://www.dmlp.org/legal-guide/elements-intrusion-claim<br /><br />Also, there is liability for images that disclose private facts under certain criteria or amount to portraying someone in a false light which is similar to defamation type claims.</p>

 

[Doug Obert]

<p>You have an IP lawyer already working on a case against this company and you're asking us for advise?</p>

[charles_mundy]

<p>Doug,<br>

Not so much for advice more to start a conversation about "By placing a watermark on an image does that make it an advertisement for services?"</p>

[craig_shearman1]

<p>"I received an email from a bicycle manufacture claiming the images I posted were being used for self promotion and therefor would need a model release for each rider and from him as the bicycle manufacture."<br /><br />I'm not a lawyer but I've been around these issues a lot. Whether you need a model release for the riders or not is none of the bike manufacturer's business. Only the people in the image (or their parents if they are minors) have legal standing to say you can't use an image of them without a release.<br /><br />Whether the manufacturer can say you can't use his bikes without a property release is debatable. Again, not a lawyer. But I think they bike would have to have a clear and distinct creative design that constitutes intellectual property. Two wheels and a seat held together by metal tubes is pretty generic. </p>

[Doug Obert]

<p>To that question you get an I don't know Charles. To "me" I think it would depend on what the watermark says. A simple "Doug Obert © 2014" I'd say no. Web address and phone number...hmmm, maybe? But I'm not a lawyer and I'll bet that if you asked 5 lawyers that same question you'd get some disagreement.</p>

[photomark]

"Two wheels and a seat held together by metal tubes is pretty generic."

 

Not to mention that these have useful functions, which are not protected by copyright.

 

As far as the use of the people's image with the watermark, I don't think asking whether the watermark

constitutes advertising is really the right question. You should be asking whether your use of these images

constitutes a violation of your states privacy laws. Maybe the watermark could be a factor, or maybe not.

 

Several states have clauses in their privacy statues that allow photographers to exhibit images about their

business. For example, this is from the Illinois Right of Publicity Act (1075/35 b(5) -

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62):

 

"use of photographs, videotapes, and images by a person, firm, or corporation practicing the profession of

photography ("professional photographer") to exhibit in or about the professional photographer’s place of

business or portfolio, specimens of the professional photographer’s work, unless the exhibition is continued

by the professional photographer after written notice objecting to the exhibition has been given by the

individual portrayed."