john_h.1

<blockquote> <p>"I assume the picnic company does not want to risk damaging their relationship or being threatened with lawsuit with their corporate clients."</p> </blockquote> <p>The question "why?" was merely rhetorical. The follow on indicated that the person displaying the image is the party liable for misappropriation for commercial use if any. Damaging relationships is a different issue though a valid and important concern.</p> <blockquote> <p>"While there is (most likely) no actionable infringement"<br /><br /></p> </blockquote> <p>Infringement is a copyright term and issue which has nothing to do with whether there is misappropriation for commercial purposes.</p> <blockquote> <p>"... implies that NOT doing so is probably a better course of action."<br /><br /></p> </blockquote> <p>I agree. Risking damage to the relationship of the picnic company, which may hire you again, seems like a undesirable risk. There are other ways to get portfolio samples in any event.</p>

<blockquote> <p>"The picnic company is very concerned about getting sued by corporate clients with me posting pictures of the events on my blog or website."</p> </blockquote> <p> Why? The company isn't the one who will be posting the images on your website.<br /><br />In any event, there is some authority out there that sample work displays are not commercial use and there isn't much likelihood of any substantial harm caused to anyone. Its not like they will be portrayed as endorsing a hate group or something. State laws on this stuff are not uniform however. </p>

<p>I'm not sure why it matters what other people do. You don't seem to have any particular need or desire for the company to post any of it so there is no need to bargain for anything. You should feel free to choose any terms you want. In any event, if you agree to let the imagery be used for "marketing information sheets", a digital file will obviously be needed. </p>

<blockquote> <p>"That is probably the toughest law of that state which is of benefit to the poster here."</p> </blockquote> <p>I meant to write toughest law in the country (USA). As you can see, I wrote in a rather hasty manner. I looked around online for info on the scope of commercial settings and there was very little found. Unless I missed something, It looks like most useful info will have to come from lesser available legal source material. <br /><br /><br />From what was found, there was short passing commentary. One writer alluded merely to commercial transactions being involved. I noted that, at least, one state used that commercial transaction language rather than settings. Another commentator used a magazine shoot as an example. It was unclear if it were meant as a clear cut example or if they meant that there was a minimal distribution or disclosure element involved with commercial settings. I don't know if these writers actually have any real knowledge of the scope or whether it was speculative assumptions. Even judges will probably have differing conclusions. Much of this is so new and untested.</p> <p>The photographer will probably not find testing this as worthwhile. Indeed, they may have no intent to show the imagery to anyone. Chances are good they will come to a reasonable agreement. The value of these images seem to be minimal.<br /><br /></p>

<blockquote> <p>I live in a U.S. state where "revenge porn" law passed a couple months ago. They call it "unlawful distribution of private images".</p> </blockquote> <p>That is probably the toughest law of that state which is of benefit to the poster here. It has come under criticism for 1st Amendment issues. The more larger concern for the poster may be an exception in that law which states that it is inapplicable to "<em>images involving voluntary exposure in a public or commercial setting." </em>The scope of what a commercial setting being the critical issue.<em><br /></em></p>

<blockquote> <p>If the photographer has a signed model release from you stipulating that he can, yes he can. If he doesn't have signed model release , no the photographer cannot.</p> </blockquote> <p>That's too much of a blanket statement. Normally editorial use (everything but advertising/endorsement use) does not require permission of the subject. Because of the partial nudity other "right to privacy" issues could possibly apply but it is a matter where the shooting and usage circumstances will matter. The other posters are correct. Seek advice from a knowledgeable lawyer in the jurisdiction on this one.</p>

<blockquote> <p>"I would like for him to sign something saying he will destroy these off of his hard drive"<strong><br /><br /> </strong></p> </blockquote> <p>You can make a new bargain with the photographer about the future use and existence of the images. I gather your attorney friend who discussed contracts with you could draft one consistent with the new deal.<strong><br /></strong></p> <p>On the other hand, the lawyer thinks its unusual for a subject to pay a photographer to shoot photos of themselves. That's a woefully uninformed opinion.</p>

<blockquote> <p>"It is simply a question of whether it is any of the photographers business or not."</p> </blockquote> <p>Unless there was a copyright transfer or licensing agreement allowing such a use, the photographer owns the copyright. Therefore, their permission to use the images may be contingent upon disclosure of the circumstances surrounding the usage or payment or other conditions. So, yes, it is their business.</p> <blockquote> <p>"If I personally reach out to the photographer and ask their permission to use their work on my site, and they agree, is it OK? OR do I need to specifically let them know that I am making money from it?"</p> </blockquote> <p>If you are granted permission without that condition then you are granted permission. If the permission is conditional then you must meet the conditions. That includes disclosure of financial interests if asked. Failing to disclose under that scenario would create exposure to various negative legal consequences.</p> <blockquote> <p>"I don't see why it would be the photographers business if they receive credit."</p> </blockquote> <p>Since, again, the photographer can require conditions in return for permission to use the images, it is absolutely their business. Whether they receive credit or not is irrelevant. Unless that is a condition.</p> <p> </p> <blockquote> <p>"It's not like there isn't anything in it for you."</p> </blockquote> <p>As explained above, there is.</p> <blockquote> <p>"my question is: If I ask permission from the photographer to use their work, but DO NOT state that I am making money from it, is it acceptable?"</p> </blockquote> <p>From an ethical (as opposed to legal) standpoint, there are various opinions and it is a matter of perspective.</p> <blockquote> <p>"I've taken the first ethical step of ASKING your permission first which is more than what I can say most of the blogging community would do."</p> </blockquote> <p>Refraining from infringing acts isn't very impressive. No matter how many people do it. It's your duty. It is irrelevant in any event.</p> <blockquote> <p>Another detail I should mention is that I have been doing this for free for quite a few months now.</p> </blockquote> <p>Also an irrelevant detail. I should mention.</p> <blockquote> <p>"It is time and effort for the copy I write too."</p> </blockquote> <p>Yes. This too is irrelevant. There is no need for a photographer to be concerned or to even care about this. No one else need do so either. No one is making you do that.</p>

<blockquote> <p>As long as it's not used for commercial purposes.</p> </blockquote> <p>Correct. Don't use it for advertising or as though the people are endorsing something, then you're good to go. Also, portraying them in a very bad false light or highly embarrassing or in the bathroom and private situations of that magnitude. Otherwise your just showing pictures of people which is fine. The rules haven't changed. If someone objects, just remove the pics with their likeness in it to keep people happy.<br /><br /></p> <blockquote> <p>Just don't sell an image of the bride/father dance for use in an ED advertisement<br /><br /></p> </blockquote> <p>Just a bit of clarification here... Selling isn't the issue. Liability over using someone's likeness isn't determined by whether an image is sold, used with permission or copied and used by an infringer. It is how it is used that matters. As discussed above.</p>

<blockquote> <p>"better to roll a digital audio recorder on the ground, and sync up in post."<br /><br /></p> </blockquote> <p>or just easily overdub with some copyrighted music. <br /><br /><br /></p>

<blockquote> <p>I'm not too crazy about the whole world knowing where and when I took a certain picture.<br /><br /></p> </blockquote> <p>Is it OK for to know where but not when? Roughly half your photos posted here reveals where you were.<br /><br /><br /></p>

<blockquote> <p>"so a few years ago... "</p> </blockquote> <p>Lost me at that point. What did the rest say? ;)</p>

<p>I don't know the details of how its done in Canada but am confident, like Rick, that your contract will govern (assuming the situation is adequately covered and the relevant terms are enforceable). What does it say?</p>

<blockquote> <p>I'd like to know what you all would do in this situation</p> </blockquote> <p>Some people say never to give work away for free. I usually don't agree if the photographer is offering it for promotional reasons or when working with charities which can, incidentally, also lead to new business. I am skeptical, however, when people ask the photographer for free content. Especially when the requester cites the supposed value of exposure or talks of potential future work.<br /> <br /><br />Here, there is an effort to obtain free content but, it is going back to the people that hired you and probably a few others that will probably already have access, somehow, to the same imagery. Couple that with there being almost nothing to lose and some potential relationship building, I would be more open to the idea. If nothing comes of it then, no big deal. Its not like you were promised anything. Also, the couple won't hear of you being difficult over images they already have and no one else in the world cares about.<br /><br /></p> <blockquote> <p>Give him the images with YOUR BUSINESS NAME AND CONTACT INFOMRATION ON THE PHOTO! Let him know, in advance, that you will be including this information and get his agreement, in writing, that he will not remove it</p> </blockquote> <p>I'm not sure why this is even important much less bold letter important. Even if credit had real value in general uses, hardly anyone is going to see it in this instance. There's no credible potential financial or marketing value. It isn't of any honorary importance either. Really, who cares as long as the issues Dan raises for usage are met? That keeps the video person from making it out to be their work or otherwise gaining from your work. What's left to worry about then?</p>

<p>Is this REALLY a trend?</p> <p><em>(NOTICE: Bottom is meant literally / <em>risqué</em> imagery within 'butt' well within standards)</em></p> <p>http://elitedaily.com/envision/the-latest-trend-for-bridesmaids-is-to-pull-up-their-dresses-and-show-off-their-butts-photos/645024/</p>

<blockquote> <p>that celebrity was on private property owned by your client and you should respect their <a id="itxthook3" href="/business-photography-forum/00cfP6?unified_p=1" rel="nofollow">privacy<img id="itxthook3icon" src="http://images.intellitxt.com/ast/adTypes/icon1.png" alt="" /></a> and as a representative of your client exploit their privacy for your gain is pretty nasty. Exemption to that rule: if the celebrity was engaged in something that was newsworthy (like a fight, doing drugs, having sex who wasn't his or her spouse, exposing themselves, etc.) then all are bets are off.</p> </blockquote> <p>Privacy ethics matter unless there's something juicy to use?</p>

<p>Cape Cod, Cape Cod & Cape Cod. Outer Cape cod that is.</p>

<blockquote> <p>"If you have turned down other work for this date or can't book something I'd refund nothing"</p> </blockquote> <p>Keeping an entire fee when the bulk of the work and product (arising from the wedding itself) is not tendered? Good luck enforcing that.</p> <blockquote> <p><br /><br />unless your contract deals with the issue differently.</p> </blockquote> <p>Most likely the retainer (liquidated damages clause) has that effect. Maybe (a big maybe) itemized services and product will also count if worded consistently and to a reasonable total amount.</p> <p> </p>

<blockquote> <p>seeing how I/we did not have any written agreement as stated below from the article than I was not under a "Work for Hire" scenario? if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.</p> </blockquote> <p>The next analysis then, as discussed in the circular, is if there is an agency/employment basis for there to be a work for hire. Namely, does the arrangement amount to employment based on sufficient control being exercised over a photographer by a hiring party. Merely labeling someone as an employee or independent contractor is not enough. Nor is the tax structure set up a determining factor alone. It is a balancing test of control. There's a whole bunch of different factors which are weighed to see if one is genuinely under control or not. If they are, the hiring party is an employer and owns the photos taken within the scope of employment. If not, the photographer is an independent contractor and owns the images they shoot. Most times, its the latter. <br /><br /><br /><br /> </p>

<blockquote> <p>Where do I go from here</p> </blockquote> <p><strong><em>I am now on the hook for still paying my second shooter</em></strong><br /> <em><br />---</em>Does the contract with the second have a clause on what happens if the client cancels such as a pro rata share of the retainer or something else? Does the 2nd have prospects for shooting something else that day? These type of things tend to effect the outcome. Since you know the shooter and there is some social issue involved, maybe you can work some thing out with them as well. Although, the social issue may make the 2nd angry instead making a work out more challenging.<br /> <br /> <strong><em>I provided gift certificates for their stag and doe (exclusive to CLIENTS only) as well as digital UNPLUGGED file creation to hand out to all their guests.</em></strong><br /> <br /> <em>---</em>If the contract is canceled/breached with the liquidated damages established, why would there be further obligations to perform or different damages claimed on your part?<br /> <br /> <strong><em>I'd deduct individual full-price versions of the services already provided and give them what's left</em></strong><br /> <strong><em>&<br /></em></strong><br /> <strong><em>A friend who JUST started working for a lawyer said them refusing my second shooter was a direct breach of contract and nothing should be returned.</em></strong></p> <p>---I would follow what my contract dictates rather than potentially breaching it myself and then update it to address these kind of contingencies in the future. I don't know what your contract says and, perhaps, additional relief could be available. The advice above, however, disregards the issue of the liquidated damages/ retainer clause which, if not followed, can make this problem much worse. Actual advice should come from a real attorney knowledgeable in contracts.</p>

<p>http://www.copyright.gov/circs/circ09.pdf</p>

<blockquote> <p>The purpose of my free mini sessions was entirely marketing. I am, however, very offended... ...What would you do in this situation?</p> </blockquote> <p>Adopt a business model and attitude more accepting of the reality that the masses consider copying and printing of digital files and web pics as perfectly normal and acceptable.</p>

<p>Here's a link with reviews... http://www.amazon.com/Understanding-Exposure-3rd-Edition-Photographs/dp/0817439390</p>

<blockquote> <p>"Bryan Peterson, Understanding Exposure."</p> </blockquote> <p>Great for beginner photographers. Very easy to understand and puts it all together conceptually and with satisfactory detail. It doesn't cost much money either. It was a big help for me compared to other sources.</p>

<p><a href="/photodb/user?user_id=8272898"> Antillar </a></p> <p>Hi Antillar,</p> <p>I think Mike had some good answers to your questions. I can tell by your questions that there are some comprehensive things to learn that will naturally be the answers to potential future questions. Thing such as how aperture and shutter speed change images and how they interact with each other.<br /><br />There is a great and easy to understand and read book by Byron Peterson called "Understanding Exposure". It really helped me after I checked our other sources and still had some confusion with all the different things being said. I bet it will be a great value for you...<br> <br />http://www.amazon.com/Understanding-Exposure-3rd-Edition-Photographs/dp/0817439390<br /><br /><br /></p>