Photographer's Rights & Client Photos

[TanV]

Hello everyone. I'm a professional photographer and recently did a free portrait photoshoot for a friend who knew I wanted to use the photos in my portfolio and for self-promotion.

We went out and did a beautiful shoot in the forest and took 500 photos. Later that evening, we went through them all together. She downloaded the memory card with all 500 RAW photos onto her own computer and into her Lightroom. I wrote down the ones she liked - there were only five. I edited the five she liked at home in Lightroom and Photoshop and sent them to her to review. She had me fix hundreds of little details she didn't like about herself like taking out freckles, removing her tattoo, flattening the bridge of her nose, and even taking her waist in. The winners came down to two images. One didn't show her face at all and the other was a slight side profile. In the end, I don't have much to show for all the hard work. And certainly, two images where you can hardly see your client's face or not at all, don't represent a good portrait shoot. I'm feeling extremely frustrated about it.

Part of me wants to use four of the images she originally chose anyway and part of me is afraid to. What are my rights as the photographer and what are her rights as the model who now has all of these RAW files on her computer? There was no model release form signed ahead of time as she is a friend...lesson learned.

Thanks so much for taking the time to read and comment.

T

[samstevens]

If this were a friend of mine, I would be thinking more about the friendship than my rights. I would tell her I’d like to use some of the photos in my portfolio and allow her to respond. I’d respect her wishes. 

Next time, I’d try to be more clear about my own needs and intentions as well as asking a friend about theirs in the planning stage. 

[TanV]

Thanks Sam. We did discuss that I'd be using the photos for promotional purposes right from the beginning so she definitely understood that. We just didn't do the actual written consent form. 

Edited December 4, 2022 by TanV

[samstevens]

Then you can now just ask her to sign a written consent so you have it on file. If she signs it, problem solved. If she prefers not to, it means she changed her mind. Don’t overthink this. Let’s say she had signed a consent form in advance and then, after the photos were taken, asked you not to use them. Would you? I wouldn’t … under most circumstances. I’d be more inclined to defer to a subject’s wishes about photos of them than I would be to assert my own needs, especially in a non-business transaction, which this was. 

Edited December 4, 2022 by samstevens

[TanV]

Yes, fair enough, and you're right. Either way, if she didn't like the photos then it's the same moral situation whether or not there is a signed consent form. I will respect her wishes however I won't likely do another photoshoot for her again as I'd risk the same thing happening again. It was a lot of time and effort out the window. 

[TanV]

By the same token, she can't post photos I've taken of her without my consent, right? Seeing as how she's got 500 RAW images from that day. 

Edited December 4, 2022 by TanV

[AlanKlein]

I never mix business and pleasure or friendship or family.  It seems to have too many problems.  I never would use a family lawyer, doctor, tax accountant, or barber, especially my wife. 

[samstevens]

On 12/4/2022 at 12:13 PM, TanV said:

By the same token, she can't post photos I've taken of her without my consent, right? Seeing as how she's got 500 RAW images from that day. 

If you are a “professional photographer,” I recommend you consult a professional lawyer. And I’d think twice about giving friends 500 photos of themselves and expecting them not to post any. 

Edited December 6, 2022 by samstevens

[mikemorrellNL]

On 12/4/2022 at 9:13 PM, TanV said:

By the same token, she can't post photos I've taken of her without my consent, right? Seeing as how she's got 500 RAW images from that day. 

There's lots of stuff about the photo rights of photographers and 'models' on internet. Both in cases where photographers 'hire' and model and in cases where a 'model' hires a photographer.
In NL, the law distinguishes between the 'portrait rights' of anyone portrayed in a photo and the "authorship rights" of anyone who creates a portrait (photo).  Browsing a couple of articles, the law in the US seems to be similar in that:

- the photographer always retains (image) copyrights; so no-one - even the 'model' - is legally permitted to publish or share images 'created by' a photographer without his/her permission

- a 'model' can object to an image of her/himself being published to promote any product or service without her/his permission.

But I agree with @samstevens: "...I would be thinking more about the friendship than my rights". I also agree with his suggestions for trying to 'summarize/clarify' your previous verbal agreement on paper or in an e-mail. To me, it sounds reasonable to ask your friend if she would consent to you publishing 4 previously selected photos that best illustrate your skills as a portrait photographer. This is a different purpose than she has. In an e-mail (or on paper), you could also - in a friendly way - point out that any of the 500 RAW photos should not be shared or published (with or without her post-processing in Lightroom) without your consent. Because - as the photographer, especially as a professional one  - you need to be in control of the selection and quality of your photos that are used/published/distributed.

Hopefully - as a friend who has gone the extra mile to produce photos that she likes - she will also understand and respect your 'professional photography interests'.

I hope things turn out well and that you stay friends!

Mike

[c_watson1]

Maybe consider your upset as tuition for a short course in avoiding such grief. Get an appropriate signed model release next time. If you sacrifice a friendship due to their unwillingness to accept a legal document, so be it. Be willing to understand that some people just won't take on the world as grown-ups.

[AlanKlein]

1 hour ago, c_watson1 said:

Maybe consider your upset as tuition for a short course in avoiding such grief. Get an appropriate signed model release next time. If you sacrifice a friendship due to their unwillingness to accept a legal document, so be it. Be willing to understand that some people just won't take on the world as grown-ups.

Don't mix business with pleasure. 

[TanV]

On 12/6/2022 at 5:57 PM, AlanKlein said:

Don't mix business with pleasure. 

Thanks Alan. I have accepted the hard lesson and it has moved me in the right direction to create a model release form and a contract that people will need to sign before a photoshoot. That way neither of us are wasting time. I should have created these long ago. I will not be posting the photos. It’s unfortunate as she is beautiful. She just doesn’t believe it or see it right now. 

[TanV]

On 12/6/2022 at 4:46 AM, mikemorrellNL said:

There's lots of stuff about the photo rights of photographers and 'models' on internet. Both in cases where photographers 'hire' and model and in cases where a 'model' hires a photographer.
In NL, the law distinguishes between the 'portrait rights' of anyone portrayed in a photo and the "authorship rights" of anyone who creates a portrait (photo).  Browsing a couple of articles, the law in the US seems to be similar in that:

- the photographer always retains (image) copyrights; so no-one - even the 'model' - is legally permitted to publish or share images 'created by' a photographer without his/her permission

- a 'model' can object to an image of her/himself being published to promote any product or service without her/his permission.

But I agree with @samstevens: "...I would be thinking more about the friendship than my rights". I also agree with his suggestions for trying to 'summarize/clarify' your previous verbal agreement on paper or in an e-mail. To me, it sounds reasonable to ask your friend if she would consent to you publishing 4 previously selected photos that best illustrate your skills as a portrait photographer. This is a different purpose than she has. In an e-mail (or on paper), you could also - in a friendly way - point out that any of the 500 RAW photos should not be shared or published (with or without her post-processing in Lightroom) without your consent. Because - as the photographer, especially as a professional one  - you need to be in control of the selection and quality of your photos that are used/published/distributed.

Hopefully - as a friend who has gone the extra mile to produce photos that she likes - she will also understand and respect your 'professional photography interests'.

I hope things turn out well and that you stay friends!

Mike

Wow! Thank you Mike for your detailed reply. It was a big lesson learned. Normally, I don’t ever give away RAW images, but we’re friends, I trusted her, and expected to be able to use them. That was the deal…free shoot in return for marketing material. We’ve done photoshoots together before without issue. This was the first time there was a problem.  

My original question about “rights” was to understand both photographer and model rights.

I won’t be posting the photos as I realize that it would harm the friendship and I don’t want to do that. At the time, I was disappointed as I really wanted to use these in my portfolio and can’t. We both knew that was the intention for the shoot so I feel like it was a waste of time but perhaps not if I learn and grow from the experience.

[TanV]

On 12/5/2022 at 8:37 PM, samstevens said:

If you are a “professional photographer,” I recommend you consult a professional lawyer. And I’d think twice about giving friends 500 photos of themselves and expecting them not to post any. 

Thank you Sam. I appreciate your raw honesty. I don’t think I’ll be involving a lawyer as it would do more harm to both of us than good. It isn’t worth it.

The good thing that came out of this is that I’ve created a contract and model release form that I will use in the future so that our verbal agreement is even clearer! 🙂I’m happy about that, so there was growth and learning as a result of the situation.

Normally, I never give away RAW photos and won’t do it again. Lesson learned!

[Niels - NHSN]

If dealing with amateurs, it is often less confrontational/intimidating to just make a description of intended use (and not use a legal vocabulary of words like "Contract" etc.).
It can be as simple as an email exchange, " I am thinking of using my favourite photos from our session in my portfolio, and you can use your favourite photos for ... Is that OK with you?"
Just make sure you have a confirmative response. It is as legally binding as anything.

If you are planning to make money on the outcome, it should be clear and you would probably use a professional model anyway who would already be used to signing contracts and releases.

[samstevens]

1 hour ago, NHSN said:

If dealing with amateurs, it is often less confrontational/intimidating to just make a description of intended use (and not use a legal vocabulary of words like "Contract" etc.).

Good point.

When dealing with friends, it's a whole different set of considerations and the friendship may be more important than the email exchange. So, if a friend changes their mind, and I cared about the friendship, I'd be willing to ignore the email exchange.

I've even done that with strangers I've shot where we had an agreement that I could use the photos. One guy changed his mind, and I respected that and didn't use the photos (even though I had a "right" to). I haven't taken a photo yet whose importance to me overrode the desires of the subject, regardless of any agreement reached. Of course, I'm just a guy, not a professional or a journalist, which would be a different story.

[mikemorrellNL]

Good choice IMHO! From the interviews with professional photographers that I've watched/read over the years, they all say that their 'social skills' in developing and maintaining good personal relationships with their 'clients' and 'subjects' is at least as (if not more) important than any technical or creative skills they may have.

Three additional thoughts:

1. It's always been true that the most valuable 'marketing activity' for any organization is that done by satisfied clients. Recommendations through word of mouth (for example, your friend) have always been and are still important. These days, client recommendations via websites and social media are perhaps just as important. They build confidence for prospective clients. Some organizations (for example restaurants) have been accused of 'hacking' positive scores. But detailed, specific reviews are hard to hack. I don't know how your website is set up or whether this is appropriate but if you're unable/unwilling to add photos from this photoshoot to your portfolio, an alternative 'payoff' might be to ask your friend whether she might give you a (hopefully positive) recommendation on your website.  Even anonymously. Something along the lines of 'I've worked with @TanV on a couple of (non-commercial) photoshoots and I've found that ..... What I like about @TanV's approach is ...'. What I like about the final selection of photos - that we made together - is ...' 
2. This photoshoot was for your friend's benefit (her photos). Would she (or someone she or you know) be prepared to act as a 'model' for photos that you would like to take for your portfolio?  You could pay some expenses (since it's in your interests) and the 'model' should have the option of anonymity, if he/she so desires. Since a 2nd photoshoot would be at your initiative and in 'your interests', you would be in a stronger position to agree terms and conditions with any 'model'.
3. FWIW, I recommend that - for any photoshoot - you (as the photographer) always make an initial limited selection of (post-processed) photos for further review with your client/subject. In this case my guess is 5-10. For weddings, etc. the selection might be much larger. Just as an amateur (voluntary) photographer, this is the way I've come to work. In my experience, an initial (limited selection) based on a 'photographer's eye' (with cropping, corrections. enhancements) helps clients/subjects make a final selection from a small number of (photographically 'good') alternatives. Sure, I have personal preferences and I sometimes express and justify these. But I'm happy for my my clients/subjects to make the final decisions in the knowledge that I can (photographically) 'stand by' all the photos in my initial selection.

Just some thoughts.

As a last point: Friendship is Friendship. Personal and unconditional and definitely not 'transaction-based'. And  personal friendship has nothing to do with the 'business interests' of friends. Mixing these can harm the friendship. On the other hand, my personal experience is that friends help each other out (without compromising their personal values or integrity). So, without compromising your personal friendship, it doesn't seem to me to me to be an unreasonable request to ask "hey, we've just done a photoshoot together, would you - as a friend - just add a comment on my website?"

Mike

 

 

 

On 12/11/2022 at 6:24 AM, TanV said:

Wow! Thank you Mike for your detailed reply. It was a big lesson learned. Normally, I don’t ever give away RAW images, but we’re friends, I trusted her, and expected to be able to use them. That was the deal…free shoot in return for marketing material. We’ve done photoshoots together before without issue. This was the first time there was a problem.  

My original question about “rights” was to understand both photographer and model rights.

I won’t be posting the photos as I realize that it would harm the friendship and I don’t want to do that. At the time, I was disappointed as I really wanted to use these in my portfolio and can’t. We both knew that was the intention for the shoot so I feel like it was a waste of time but perhaps not if I learn and grow from the experience.

 

Edited December 12, 2022 by mikemorrellNL

[AlanKlein]

On 12/11/2022 at 12:07 AM, TanV said:

Thanks Alan. I have accepted the hard lesson and it has moved me in the right direction to create a model release form and a contract that people will need to sign before a photoshoot. That way neither of us are wasting time. I should have created these long ago. I will not be posting the photos. It’s unfortunate as she is beautiful. She just doesn’t believe it or see it right now. 

I'm glad you have a plan. Good luck. 

[AlanKlein]

4 hours ago, mikemorrellNL said:

Good choice IMHO! From the interviews with professional photographers that I've watched/read over the years, they all say that their 'social skills' in developing and maintaining good personal relationships with their 'clients' and 'subjects' is at least as (if not more) important than any technical or creative skills they may have.

Three additional thoughts:

1. It's always been true that the most valuable 'marketing activity' for any organization is that done by satisfied clients. Recommendations through word of mouth (for example, your friend) have always been and are still important. These days, client recommendations via websites and social media are perhaps just as important. They build confidence for prospective clients. Some organizations (for example restaurants) have been accused of 'hacking' positive scores. But detailed, specific reviews are hard to hack. I don't know how your website is set up or whether this is appropriate but if you're unable/unwilling to add photos from this photoshoot to your portfolio, an alternative 'payoff' might be to ask your friend whether she might give you a (hopefully positive) recommendation on your website.  Even anonymously. Something along the lines of 'I've worked with @TanV on a couple of (non-commercial) photoshoots and I've found that ..... What I like about @TanV's approach is ...'. What I like about the final selection of photos - that we made together - is ...' 
2. This photoshoot was for your friend's benefit (her photos). Would she (or someone she or you know) be prepared to act as a 'model' for photos that you would like to take for your portfolio?  You could pay some expenses (since it's in your interests) and the 'model' should have the option of anonymity, if he/she so desires. Since a 2nd photoshoot would be at your initiative and in 'your interests', you would be in a stronger position to agree terms and conditions with any 'model'.
3. FWIW, I recommend that - for any photoshoot - you (as the photographer) always make an initial limited selection of (post-processed) photos for further review with your client/subject. In this case my guess is 5-10. For weddings, etc. the selection might be much larger. Just as an amateur (voluntary) photographer, this is the way I've come to work. In my experience, an initial (limited selection) based on a 'photographer's eye' (with cropping, corrections. enhancements) helps clients/subjects make a final selection from a small number of (photographically 'good') alternatives. Sure, I have personal preferences and I sometimes express and justify these. But I'm happy for my my clients/subjects to make the final decisions in the knowledge that I can (photographically) 'stand by' all the photos in my initial selection.

Just some thoughts.

As a last point: Friendship is Friendship. Personal and unconditional and definitely not 'transaction-based'. And  personal friendship has nothing to do with the 'business interests' of friends. Mixing these can harm the friendship. On the other hand, my personal experience is that friends help each other out (without compromising their personal values or integrity). So, without compromising your personal friendship, it doesn't seem to me to me to be an unreasonable request to ask "hey, we've just done a photoshoot together, would you - as a friend - just add a comment on my website?"

Mike

 

 

 

 

The problem with dealing with friends and family in business or even personal financial transactions, is that a simple misunderstanding can destroy the personal relationship.  It's not worth it.  Plus, when family and friends are involved, it's often hard to be tough on them when you need to.  How do you tell your wife that you're going to replace her brother accountant to do your taxes?  (that applies even if he's just doing personal taxes.)   Do you want to sleep in bed or on the couch? 

[glen_h]

Last year, I had a (one person) professional photographer do a shoot of my family.

I had noticed in the agreement, that it gave her rights to use them, but not me!

I asked, and she changed the agreement.

I suspect no-one asked that before, as it seems obvious that when you hire a photographer, that you have rights to use the result.

But from reading posts here, I realized that wasn't so obvious.

(Commercial use might be different, but that wasn't a question in this case.)

 

I have previously gotten a CD of JPG files from a big commercial company, which actually has printed on the CD that I can use them.

 

In the case above, the OP was not paid, and so it isn't quite the same.

(Don't forget "implied warranty of merchantability".)