argv

You don't have to be a "business" to write off expenses that correlate directly to income. Whatever your income is, if there were expenses associated with it, they can be deducted from that particular income. The net result is either taxable, or a deduction you carry forward to the next year. This applies any kind of income, whether it's taking and selling photos, to buying and selling stocks on the stock market, etc. The key thing to remember is that the expenses have to be RELATED to the income.

 

If your expenses exceed your income, then you have a net loss, which is almost always the case for new businesses, regardless of whether it's photography or anything else. Now the question is whether you can apply those net losses to your "regular income", such as paychecks from a regular job, etc. This is where things get a tad muddy, but not all that much. If you're a "sole proprietorship," which is just a fancy way of saying your business has not been given a formal declaration with the IRS, then whatever the income/loss your so-called "business" achieves flows through to your personal returns. That is, if your photo biz makes a profit, it's added to your normal income--if it makes a loss, you can deduct it.

 

Most photo businesses by individuals are usually one of "sole proprietorship" (where you file a Schedule C on your personal tax returns to separate the business income/expenses from your personal income/loss), or an LLC (a "limited liability company"), which is similar, but has some additional legal protections not having anything to do with taxes, or an "S" corporation (which, like an LLC, has protections, but more of them). All of these are cases where business income/loss "flows through" to your personal returns. The only entity where business income/loss remains within the company is a "C" corporation, which is what larger companies opt for due to requirements that have nothing to do with this subject.

 

 

 

dan

It's not that complicated.

 

If the contract was a work-for-hire agreement, then the copyright is held by the agency. That's it.

 

Otherwise, the agency doesn't have copyright, but they probably have continued rights to use the images in perpetuity. (I can only imagine that there's no expiration date of the contract. But the photographer still owns the copyrights.)

 

As for whether the photographer can exhibit and/or sell them, these are two separate questions: he CAN exhibit them if he owns the copyright because that's the only thing necessary in order to exhibit artwork: ownership of copyright. Artwork is a very specific and very well protected form of expression. You don't need model releases or "property releases" for artwork to be sold. Case after case is brought to court re-establishing this precedent. Two examples follow.

 

The first is Nussenzweig v. diCorcia, 108446.05.

http://www.law.com/jsp/article.jsp?id=1139565912319

The photographer took pictures of man in public and sold the prints for 20,000 - 30,000 each. the man sued but the court ruled that artwork trumped his rights of privacy since he was in a public space and there is a reasonable expectation that your picture *could* be taken by someone without your knowledge.

 

The second example is Mattel, Inc. et al. v. Walking Mt. Productions.

http://www.cuttingedgereport.com/casesofthemonth/cases/0401A/sums/Mattel_v_WalkingMt.html

 

Mattel sued an artist for copyright and

trademark infringement based on the artist's use of BARBIE dolls in a

series of photographs depicting them in various unflattering poses, and

use of the BARBIE mark in connection with the photo series. The court

found that the photos are permitted under "fair use" professions, which

precludes Paintiff's trade claims. The same court also permitted the sale of

postcard depicting the photographer's photographs.

 

As for licensing them, this comes back to the contract with the agency: if they retained "exclusive rights" to the images, then the photographer cannot license them to others. In this context, the exclusivity cannot affect the photographer's private use of his own images, which is why he can exhibit them and sell them as art.

 

Lastly, as for pointing people to the government's copyright website, I've learned that this doesn't offer people much help because they just get lost. You have to be very specific about what you have them read. (Otherwise, if they were that resourceful, they'd have just gone there in the first place and not bothered coming here. :-)

 

The place to look is this document: http://www.copyright.gov/circs/circ9.html

This is pretty easy to read.

 

dan

> Work for hire or not, if the subject in one of the photos decides to sue for having thelr likeness used in an ad they will name EVERYONE involved in the process.

 

Of course the photographer will get called. Everyone does. No plaintiff would file a suit and no name every person possible. That's not the part that matters. When the case is filed, the lawyers representing the plaintiff know that the judge will instantly dismiss you because you've done nothing wrong. So, if the lawyers know this, why name the photographer? To get him on the side of the plaintiff. Because the photographer is basically untouchable, they want to use that person to their advantage by getting him to disclose information about the licensee that might not be very easily obtained otherwise, like what discussions were had, who was involved, etc. The photographer's testimony, which can only be favorable to the plaintiff's case, is critical. and if you don't name him in the suit, he's not obligated to participate in any way. You can't ask him to be a witness--he could decline. His testimony is best obtained through a very traditional legal process of naming him in the suit to get him involved, then persuade him to move over to your court.

See my response to this post:

 

http://www.photo.net/bboard/q-and-a-fetch-msg?msg_id=00PXOD

Whenever anyone asks me this kind of question, it's always clear that they have no idea what their long-term business objectives are. If you knew, you'd allocate your most precious resource -- TIME -- towards activities that grow your business, and thus, you'd know whether you "really" needed to revise your website, and why and how.

 

Some photo businesses rely very heavily on web presence, and thus, their website. Stock shooters who represent themselves fall into this category. If you were a stock shooter, you'd know that people need to search your site for photos, and therefore, you'd need search capabilities in a web template. And if you needed search capabilities, you'd know that you needed to keyword your photos, and to have a shopping cart, and so on.... People in this line of work know what they need because there's a direct correlation between business income and the website, making the needs from the site somewhat self-evident.

 

Other business models only need to have a sufficient site for information and sample shoots just to give people basic info and contact details, because the "real" marketing is done using non-web based resources (like local print advertising, direct mail, etc).

 

If you are asking this question, you need to step back and consider your basic business model and what you're spending your time doing (and whether that time is translating into better/more business). Given what you said and what I've seen, your website should be much lower on your priority list. But that's not important yet--what's important is that you needed to make this assessment on your own.

 

dan

Apple requires that the vendor have exclusive rights to the TECHNOLOGY that they are using in the application they are developing for the phone. this has absolutely nothing to do with the photo, unless, for some unknown reason, the photo itself is part of the technology. I can't even imagine a situation where it could be.

 

Normally, this "exclusive right to technology" isn't a problem for these companies because they are the developers. And developers at this level for this kind of application tends not to use third-party products, though it could certainly be the case. Technology, unlike photography, can potentially involve incorporating many other products or services in order to enable the technology to function and be sold.

 

So, the first thing I would do is explain to your client that they don't need exclusive rights to the PHOTOs they use--and if they have any doubts, check with apple. Once they realize that a non-exclusive right is sufficient, your $75 license fee would be more reasonable.

 

I would recommend, however, that you (or anyone) ALWAYS try to separate "license fees" from "shooting fees." If you are asked to shoot the picture as well as license it, then that should be a separate fee. What that is is up to you, and should reflect what your business model is and how much you value your time.

 

dan

There are two ways to go about it: self-publishing, and seeking a book publisher. This is where even more people get realy confused about what the benefits are. Your posting didn't say who it was that was encouraging you to publish, nor did it say which of the two approaches you were considering. So, let's consider both.

 

But first, the two most common (and naive) assumptions about *any* form of book publishing are 1) that books make a lot of money (or enough to make it worthwhile), and 2) books help you become well-known. Neither of these are true, and in fact, can do you more harm than good if not managed properly. That's not to say that publishing a book can't be helpful or profitable. It's understanding how that happens that isn't so obvious.

 

The best position to be in is where a publisher contacts YOU, not the other way around. this is because your credibility has already been established, in which case it has already been determined that you are worth the investment. and it's not an insignificant one.

 

If a publisher hasn't contacted you, then you have other issues to face: namely, the time and investment necessary for you to take on this task on your own. As someone who's done four photo books already, I can tell you it never gets "easier." It's always a monumental process, and the time it takes to produce one is so significant, than the justification to take that time is one that has to have benefits when you're done. And you don't measure it by the number of books sold, or whatever income may trickle in. You measure it by what it's done for your career otherwise.

 

If it's purely a vanity effort and you're hoping to just have a nice product under your belt, you can already use dozens of free software products to produce and print them at nominal costs. You can't do this in volume for a reasonable price--therefore, you won't be able to sell them to others for a price they'd be willing to pay that would allow you to turn a profit--but it is, afterall, a vanity effort.

 

Self-publishing through a vendor like lulu.com is more common, but after you rough the numbers, you end up paying a pretty hefty sum as well. Though your margins are good enough that you can sell and make money on the book for the same price as what amazon.com would sell a comparable book that people would spend money on, the margins turn out to be exactly the same as if your were represented by a real publisher, and they paid you standard rates for a first-time publisher (around 10% of net sales, or about $1 to $1.50 per book). If given the choice, self-publishing won't yield a lot of money, but then, you also won't go broke if you do it using print-on-demand technology.

 

dan

> Actually, we can share our knowledge and help others to establish some type of consistency in pricing.

 

That would be true if you cold rely on cooperation by enough people.

The more "defectors" there are, the less likely this approach works.

This theory is taught in all college-level Economics 101 classes.

The famous experiment that demonstrates this is called The Prisoner's

Dilemma, which I cited in my prior post. In any system where people

who must rely on one another to "cooperate" for the greater good, those

who do not cooperate will always succeed at the expense of the others.

What's more, they *will* do this, even if it would bring down the entire

group later. The only way to prevent them from doing so is by creating

an legal entity -- ie., a "union" -- that requires members to act in

unison by law.

 

This principle of economics has been proven over and over again, and

is also the basis from which John Forbes Nash derived his famed "Nash

Equilibrium", which earned him a Nobel Prize for Economics. (The movie

"A Beautiful Mind" was about Nash.)

 

Because people will ultimately act in their own self-economic-interests,

any business model that relies on others to either help or cooperate with

you is one that will ultimately fail.

 

And besides, photography wouldn't apply anyway, even if there was

consistency in how people run their businesses. We're not like assembly

line workers where we all do the same work, and hence, can/should charge

the same money for the same output, or "unit produced."

 

> Go to any Stock Agency website and run their calculator and that will give you an idea of pricing Stock.

 

This is probably the worst thing you can do, largely because of how the

industry is run. Stock agencies represent the lowest rung of pricing of

all sources for photo assets, with most of them inching towards a

microstock kind of model. 35% of all stock is licensed from agencies,

whereas the remainder is mostly from individual shooters, whether stock

is their main revenue model or not. Stats and other data on this can be

found on the "blogs" section of my website.

 

> If you can't generate enough revenue then perhaps this isn't the business for you.

 

This is absolutely true. 99% of people who want to get into the photo

business have very unrealistic expectations of what they can make.

 

> My "truism" is create beautiful images, deliver them on time and be a pleasure to work with.

 

This is a great model for a "personal" business, where you are a human

face on the other side of a lens. This is what garners you money because

you have a skill in personal relationships. Many people don't have that.

People like me do far better doing volumes of work as an anonymous person,

much like a stock agency. No one buys from me because of customer service

or "beautiful images." Everyone's different, and this is why one needs

to understand their own skills -- as well as what they lack -- and build

a business (and its corresponding pricing structure) based on that.

 

dan

There are several critical problems with working for pros:

 

1) Teaching business concepts effectively requires a skill that most people don't have. And because most photographers are generally challenged in this area, it's better to learn about business from "business sources," not necessarily photographers.

 

2) Photographers have a well-deserved reputation for their predisposition to secrecy. You may learn about some tasks and techniques, but the important stuff you need to know will be held tightly to the chest.

 

3) Most photo businesses are so individualized that what applies to one person probably doesn't translate well to another. Unless you intend to copy a very specific person's business model and replicate it from the ground up, you're more likely to interpret most of what you witness as "truisms" about the business, where in fact, they are merely anecdotal factoids that apply under too narrow of circumstances.

 

4) Unless and until you really know business, you won't be able to discern the difference between good business judgments and truly bone-headed mistakes.

 

In summary, given the time and energy required, "business" is not something you can efficiently or effectively learn by assisting someone else. Sure, you can learn how to keep records, or to fill out a contract, or even to work with a buyer who's choosing images. But these are tasks, not skills, and they certainly don't teach the lower-level paradigms about how business is run. Again, it's not that you can't pick up some things, but what you glean over time is minuscule, compared to what you could learn if you invest that same time and effort elsewhere. Or, more to the point, started from a more advantageous position in the first place.

> This really depends on who you're working for.

 

I didn't mean from a "rights" point of view, as in who owns the rights to the pix. They may very well be your photos in copyright and so on. It's the rights of the people in them that I was referring to. It's true that many indie companies just don't care about the pix, but it's the fact that the shots were done in a private, controlled, orchestrated setting that makes virtually use display of those pictures a sure-fire violation of privacy rights. Not that many people complain about this either, of course, but it's strictly a legal thing.

This is a union job--you can't get the work unless you're part of one of a variety of film industry unions.

 

You can work for indie films, of course, but to get them, you have to attend a lot of indie film festivals and network. (That's how I got a lot of those gigs.) You have to work (typically) for free (like most of the other production staff) in hopes of using the work as part of a portfolio you present to studios. I've done a number of indie film production shoots, and it's extremely easy/simple work. They've done all the lighting and everything--you just stand behind the film camera and shoot what it shoots. You can go above and beyond this requirement and shoot your own on-site work, but it'll never see the light of day--it's strictly for your own use or that of the production company. Oh, and your portfolio as well.

 

Most real production photographers have a sweet deal because of the union association, because it pays well, *and* you can work independently on non-film gigs. But, you don't just apply--you have to move up through the indie ranks.

 

dan

> It's as though you are advocating a downward spiral in pricing

 

Not at all -- I'm only saying that different photography businesses use different business models, and hence, different pricing structures. People who focus on narrow niches and product difficult production shots typically charge quite a bit of money for their work and usually get their fees because the clients needs are very specific and those images can't be obtained from any other source. By contrast, a generalist who shoots basic landmarks in tourist cities usually produces images that are already in an abundant supply, so he has to rely on a volume-sales type business model with rock bottom pricing to compete against the consumers and semi-pros who do the same thing.

 

In the middle of these two extremes is an infinite number of other models that may involve more or less "orchestration" to get a shot, or access, or networking contacts--each of these are offset by the supply-side (what other images are available by from other sources), and the demand-side (whether, and to what degree, there's a market for them).

 

My pointing out that the market is complex with each of these various factors does not "advocate" anything insofar as higher or lower prices. In fact, when I'm hired to consult with individual photographers to help them with their next phase of development, it's almost always the case that they've been underpricing their work for what the market can/will bear. But, this is also paired with a weak marketing approach, which accounts for why their visibility is reduced, which usually translates to a perception of lower prices.

 

My objection to the "Pricing Photography" book is that it doesn't take into account any of these real-world factors--that it treats the concept of pricing as a one-size-fits-all type of formula: that you determine the price based on static factors like photo size, distribution, number of "uses", repeat uses, and so on. This approach does not work for most photographers anymore.

 

> How can we, as photographers hope to keep up with the cost of living...

 

"we" are not a union, "we" can't support one another by acting in unison. "we photographers" make up a very tiny slice of the population of people that contributes photo imagery to the global supply of licensed images. Of course, this wasn't always true--before the internet and digital photography, it really was the case that only pro photographers fed the imaging supply line, and that line was also controlled by photo agencies. This controlling of supply meant that pricing was not only stable, but photographers could act precisely as you're advocating now. And you're not alone; most pro-level photographers are still under the impression that those days are still with us, and that diminishing prices is more the result of photographers "caving in" to pricing demands, rather than their holding their ground. none of this is actually true, and photographers who try to work in that context fail more than those who don't.

 

This is a classic case of the economic theory of The Prisoner's Dilemma: those who "cooperate" with one another will ultimately lose to those who don't. Details about this economic condition as it applies to photography is here:

 

http://www.danheller.com/blog/posts/photographers-dilemma-cooperate-or-not.html

 

In short, it comes down to the basic #1 truism about the photo business: more people have photography as a hobby than as a profession, and they are part of the economic circle. You can't play the photo business as a "group," you have to build your career and all aspects about it entirely independently of what others do.

 

dan

You're either in the business or you're not. If you're not, then it doesn't matter what you charge.... just be happy with whatever you get... if anything.

 

If you are seriously considering being a pro photographer, then you don't just ask this question out of the gate, you need to come up with pricing that reflects the kind of business you're going to be doing. Different business models have different kinds of revenue streams, which requires different methods for sales, pricing, distribution, etc.

> Sometimes it is about the law. And sometimes it is just about good PR

 

Indeed--this is always the case, and it's a message that's often lost in the discussion of whether releases are "necessary." Still, it's important to discern between the two, so as to avoid real confusion. It's very easy to see someone talk about good business sense advice like this and for others to take it as a "legal advice," which it's not.

Not knowing the answers to your own questions is a clear indicator that you're not yet ready to go into it. There are the few exceptions to the rule where people luckily get some early-years exposure, but those are the few lottery winners that, by definition, are not worth emulating. In reality, people who are not savvy about the art market make any dent at all in their attempts to enter it, and end up losing tons of money, not to mention the years of wasted time.

 

I've written an extensive article that breaks down the art segment into various categories and gives you guidelines as to how to think about your own approach into it. By no means do I give advice on what to do, as I am a firm believer that direct, specific advice is not applicable to the broader audience. It's like my telling everyone to buy a lottery ticket with the numbers 28 38 42 12. There may be those who actually win using that series, but it's a stroke of luck and coincidence, not because the strategy actually has merit.

 

Now, I'm NOT suggesting that one doesn't do certain basic things that those books recommend (such as how to write letters or build portfolios), but such advice is so basic and obvious, that it doesn't really count as useful advice. What really matters is understanding how the nuances of the market operate and the incredibly disproportionate weight that "networking" has in what can only be described as an overly incestuous industry.

There's no one-size-fits-all for the photo biz. What you do needs to mesh with your business model. I used to save every frame as well, till I got into stock photography, and then there was so much noise that most people just threw up their hands and stopped looking. There should always be some degree of "editing", but how much of it you do, and what criteria you choose, is a byproduct of your having a good understanding of your business objectives.

The same is true in the US as well: property doesn't have a right of privacy and publicity. The entire idea of "property releases" is born out of a misconception of what the word "property" means. The whole thing started many years ago when specific companies were suing for trademark infringement for particular uses of photos of their buildings, which themselves happened to be trademarked as part of their logo for business. The TransAmerica company has a building, for example, and it uses the building's unique design as a logo for their insurance services (and other things). Therefore, a use of a photo of that building in manner that could cause confusion about whether there is an affiliation with the TransAmerica company would require consent from the company. That consent form is a "property release". What is the "property" in question? it is NOT building, it's the "trademark." That is the property. However, photographers long ago missed that association, and have ever since assumed that property releases apply to buildings or anything else owned by people.

 

And many lawyers who do not practice "intellectual property" or "First Amendment" law also do not know this. Similarly, almost every stock agency doesn't know this. And the major reason why is: it's in absolutely no one's financial interest to correct the problem. Building owners LOVE to be asked for consent to use photos of their buildings: they get license fees for them.

 

Property releases apply ONLY to copyrighted and trademarked items, and they are only necessary IF AND ONLY IF the ultimate publication of the photo would cause confusion about the source of the sponsorship or advocacy (well, other things too, but more specific to copyright and trademark law).

 

Now, when do you need a property release? Interestingly enough, no one can possibly know that in most real-world scenarios, since the real assessment is going to be subjective to the viewer. It is precisely for that reason that only the person who puts the photo into use (publishes it) is solely and wholly responsible for the liability, NOT the agency, and NOT the photographer. Most importantly it's not THEIR opinion that counts. Another factor is that the smallest and most subtle changes on the layout of the ad in question, such as a word or a juxtaposition of a photo on a page, can turn a photo from being completely innocent to a trademark infringement. And the buyer (publisher) can change his mind at the last second as to whether such a change is made. So, again, stock agencies and photographers are not in control of this, nor are they in a position to know. And even if they did, their opinion about whether a release is necessary is not what matters: it's the publisher's opinion (and that of his lawyer).

 

PLEASE READ the primer on all this stuff: examples are given and court cases cited and details are provided:

http://www.danheller.com/biz-trademarks

 

Even far more detail is provided in my book on model releases:

http://www.danheller.com/model-release-book

 

dan

> What if you take pictures in a "paid for place" ---

 

There are two issues involved: the people who are the subjects of the photos, and the property owners.

 

Taking each in order: if the people who are there have a "reasonable expectation that they could be photographed without their knowledge," then you can take their pictures and license them for editorial uses without a release. Their rights to privacy is dictated by that test only--it's independent of whether they property they are on is private. Of course, if it's their own property and in their own home, there is no "reasonable expectation that they could be photographed," so you cannot take their pictures without permission, nor could you publish them, even in editorial contexts without a release. As you emerge from their home into a more publicly visible place, then those expectations gradually diminish... as you get into places where the public congregates, as in the kinds of places you just asked about, then the expectation that you *could* be photographed is higher.

 

As for the other part to this: The fact that the bird sanctuary is private property has nothing to do with the photo subjects' rights to privacy. However, the property owners can do anything they like, such as stopping you from taking pictures and even confiscating your camera.

 

All of this is addressed in detail in a link provided earlier:

 

http://www.danheller.com/blog/posts/when-editorial-uses-of-photos-require.html

 

dan

Tom Mangelsen et al. are hardly examples of unknown photographers with vanity galleries. these are extremely successful people. Which serves exactly my point: the only way to make money in the art market is to have a name that precedes you. You build a name incrementally by first networking within the art sector (typically, the local community, etc.), attracting critics to your shows, participating in non-profit sponsored events, etc... as you evolve, your name gets more known, and your network of contacts start working in your favor.

 

The one way you _don't_ succeed in the art market is to just open up shop and expect that people will buy your work without knowing who you are. Sure, sales could happen, but not enough to sustain (let alone grow) a business with that kind of overhead.

 

Then again, that's where the web comes in. The money required to finance it is nearly nothing, so you "can" at least enter into the business. but it still requires name-recognition to garner traffic before your sales grow.

Pets have no rights of privacy and publicity. Only people do. The fact that people own pets is entirely irrelevant. "Property" can only be protected through trademark and copyright registrations. And violation of trademarks and copyrights is not simply the mere portrayal of a photo of the item in question--the use of the photo has to meet certain (specific) criteria that's pertinent to the nature of the item itself. I realize that sounds vague, but it's much more easily understood when you have some basic background information.

 

As for the statement "it never hurts to have a release from the owner", that is not necessarily true. Attempting to get releases in situations where none is necessary can trigger a scenario where the question can be raised as to whether privacy laws can apply. In open public spaces, like the beach, you don't need a release, nor do you need to ask for one. However, the moment you engage with someone about the subject of taking their pictures, they are then part of what *could* be considered an "orchestrated session," in which case, the person may now have certain rights of privacy that didn't exist before you asked. Granted, this might be hard to argue successfully in court because it largely depends on the depth in which your engagement in the orchestration takes place, but it wouldn't even get that far had you simply left well enough alone.

Please note that RF is just a marketing term--it is not a legal term in any way, and there is little consistency from one company to another on what the terms of your license are. Therefore, you cannot assume that "RF" means anything at all. The source of the "Royalty Free" confusion is because a company once used their marketing term as a form of license contract, and others began following suit while changing the terms in their versions of the agreement.

 

As for what to do: your licensing of the image for client A was "on behalf of client A" -- that is, you were the purchasing agent on their behalf. THEY are the ones using it. If client B wants to use it, you will have to buy it again "on behalf of client B". These are two separate users of the image, and thus, it needs to be licensed by each separately for their uses. That YOU happen to be the party performing the act on their behalf is inconsequential. Put another way, YOU are not licensing the image at all, since the purpose of the image is not for your business--it's for the business of the client.

 

If you were thinking that you were licensing it for your own use, and thereby passing on the application of your use to that of the client, you are then acting as a redistributor, and that is probably against the terms of the fine print in the actual license agreement.

> Dan points out that he doesn't know i

 

No, I didn't say that. I said that ONE CANNOT KNOW in general without seeing a specific example and making an assessment based on factors that have nothing to do with the law. The law only addresses what happens IF it's been determined that the use implies endorsement.

 

And "getting legal advice" is not so simple, even if you tried. Getting the right lawyer is expensive, and knowing whether the lawyer you got is "competent" in this field is itself a crap-shoot. Giving people the blanket advice to 'just go get a lawyer' is worse advice because they're going to spend a lot of money and get potentially nowhere (or worse: bad advice). It's just plain too simplistic and naive.

 

Learning the basic principles is really the best solution here, and that's not hard, nor does it require a lawyer.

> If I wanted to use an image as an example on my website...

 

there's the premise question. Then Craig rightly points out:

 

> Using someone's image in a way that could be seen as promotional or an endorsement, could be an infringement of their publicity rights.

 

And this is where discussions then go in the wrong direction: everyone then starts talking about the code of as if the photo WAS a form of endorsement. But that's a big hand-wave right there, and given all the discussion and the book recommendations that go back and forth, never once does anyone actually get to the real meat of the question at hand:

 

"Does the image being on a website actually *constitute* promotion or endorsement?"

 

Do you REALLY need to know about the details of the law at this point? Not really--promotion and endorsement do vary slightly from state to state, but that isn't the real concern (because the web transcends state boundaries, and therefore jurisdiction could be anywhere). And all the legal mumbo jumbo aside, we all know the general principle that "endorsement requires a release." You don't really need a law book to understand that. What you REALLY need to learn is whether the photo IS an endorsement. Does the manner in which it is displayed (such as what text is next to it) trigger "advocacy?" What can you look for? What kinds of pictures might be suggestive of promotion or endorsement? Does it happen a lot? Or rarely? What's the likelihood of this being a concern?

 

I have each and every book that craig listed, and have read the websites he listed (and many more) thoroughly, yet none even broach any of the subjects I just listed.

 

There's no question that lawyers are really great at getting legal advice once facts are known and established. And they can also be really useful for trying to maneuver you out of a pickle should you really get into one. But it's another matter entirely to assess situations independently of law. For that sort of thing, you're much better of asking people who study the subject from a different, broader perspective--a business perspective. Sure, some lawyers have that, but people don't pick lawyers for their business savvy--they pick them for their legal knowledge, and in most cases, that's not really what you need.

 

Some of the best books on law (analysis, interpretations by the courts and other matters of this nature) were written not by lawyers, but by reporters, journalists and other experts in the field that do not have law degrees.

 

by no means am I suggesting that "the law" isn't important here. It is. And understanding it is critical as well. Yet, there mere quotation of legal code -- which is done by all the links craig provided -- is simple and straightforward, and almost everyone can read and understand them to get the general intent. Indeed, even the interpretations of that code, which is slightly more involved, is stuff that most reasonably educated people can do. But these don't help you make business decisions--it's understanding subtle nuances of real-world scenarios so you can assess whether something is getting close to "breaching" the law that's the hard part. (For example, in "the law in plain english" is a great little book of cliff's notes about law, but the tiny section of it that deals with model releases only cites "laws" and a few court cases that illustrate when laws were broken and how. But where's that fuzzy middle ground that 99% of photographers are really in? Where's the real info they really need to learn? Thinking, not memorizing law, requires a different, pragmatic understanding.

 

So, now that we know there are all those law books out there that talk about how you need a release to have someone's photo on your website if it constitutes an endorsement, most people would come away with the assumption that they need such releases for photos on their websites. Yet, in the 5+ years that I've been studying the subject (which includes legal research and interviews with lawyers and judges and photographers), there is no case on record where a court has actually ruled against a photographer for having infringed on someone's publicity rights in this manner. In fact, in the case of Corbis vs. James Brown, the court found that a website can even SELL photos of people (in this case, james brown) without a release. The use of the site is called 'vehicle of information' and the sale of photos is not considered commercial use for purposes that require consent.

 

Granted, no book is legally flawless--whether written by lawyers or well-studied industry experts--but that's not the part that matters. Law is an art, and it's ephemeral at best. Knowing "law" is only useful if you are also taught how to THINK.

 

dan

 

<blockquote>I'm afraid I don't share people's enthusiasm for the internet as a marketting medium. It tends generally to be populated by people with too much time on their hands which also means they have too little money.</blockquote>

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Thinking about how many people DON'T buy, or even how many people STEAL, is not how you're supposed to think about internet marketing. That hearkens to the days when there was a measurable cost ratio to the number of people you reach. but internet marketing costs are not measured that way. The only thing you measure is the number of people who <i>buy</i>.

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In fact, I would argue that the higher the amount of traffic you get of "people with no money" translates directly to a site that WILL get those 2-3 sales/day.

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And remember, it starts out with 10-20 visitors a day, then 100-200, and so on. It builds up as you add content, etc.

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> It's not usually about taking the photograph... it's about what you DO with it.

 

Actually, it's not even so much about what YOU do with the photos, but what your clients who license them from you do with them. Most photographers don't often self-publish in a form that requires releases, though it's certainly common enough not to be ignored. However, the kind of uses where releases are necessary are typically done by licensees.

 

But all of this is besides the point without the basic fundamentals of how and why releases are necessary. I strongly suggest people understand that first, before starting to ask questions about "whether you need a release."