Announcement

Collapse
No announcement yet.

Picture used without consent

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Picture used without consent

    I already posted a question asking about the reimbursement coming if a photographer used a picture that was taken during the wedding for an advertisement.

    Unfortunately since then it has become a bit stickier. The photographer used the picture in an ad without my sister--in-law's consent. When she found out that he had already put it in, she asked him to take the picture out.

    He stated that the picture was legally his, since he took it, There was nothing in the contract that said anything either way of the pictures belonging to the photographer or the client.

    Can someone help me with the legalities in this situation? Who does the picture belong to? Does the photographer have the right to use the picture without her consent? And does she have the right to deny him permission to use it?

  • #2
    It will depend a little bit on what county you're in. I'll speak from the US perspective. From what I understand, If a photograph is going to be used for commercial purposes (like an advertisement) then the someone (probably the publisher of the advertisement) must have the writte consent of any of the people appearing in the photograph. So I think you definitely have a case with this guy. I'm not really sure exactly how much "commercial purposes"' covers though. For example, I believe that a photographer can take photographs of people and sell them as art pieces without the models consent. Not sure about that though.

    If you have any lawyer friends, I would ask them for their opinion. You could even call a local ad adjency and see if they would give you a quick word or two on how they handle model releases.
    flickr
    Why I Like Photographs

    "It's more expensive, but it lets me adjust really specific settings that most people don't notice or think about." - Abed

    Comment


    • #3
      In New Zealand you can call the 'Citizens Advice Bureau' for free legal advice, maybe here is something similar where you are?

      Originally posted by vandergus View Post
      If you have any lawyer friends, I would ask them for their opinion. You could even call a local ad adjency and see if they would give you a quick word or two on how they handle model releases.
      Canon EOS 450D/Rebel XSi
      My Flickr Photostream

      Comment


      • #4
        [QUOTE=Gigi1;278393]
        He stated that the picture was legally his, since he took it, There was nothing in the contract that said anything either way of the pictures belonging to the photographer or the client.
        Can someone help me with the legalities in this situation? Who does the picture belong to? Does the photographer have the right to use the picture without her consent?
        [QUOTE]

        the photographer owns it as intelectual property.
        If he only handed over prints to your sister-in-law this proves he wanted to retain copyright.
        Put it this way, its a work of art.. the artist owns everything they produce.
        when i upload any picture from my camera to my PC i automatically enbed my name into the file (hidden).. because i own it.

        if the picture was published, yes, she probably has the right to object as she did not sign a "model release".
        again, it may not actually matter as the photographer did not SELL the picture of her to anyone bur simply used it in an advertisement.. its the same as if he put it up on his web-portfolio.

        this one is a grey area i think...
        Last edited by candleman; 09-22-2008, 12:57 AM. Reason: fix quote
        http://www.flashpointphotography.co.nz/
        D300s | D7000 | D80 | 17-50f/2.8 | 50-150f/2.8 | 24-70f/2.8 | 10-20 f/3.5 | SB910 | SB900 | SB600 | SB28 PhottixStratos

        Comment


        • #5
          Your sister-in-law needs to check her contract with him to see if there was a clause allowing him to use images from her wedding to advertise his business. If the contract has such a clause, and she signed it, then she doesn't have a case. If she didn't sign a contract, or anything else granting him permission to use images of her for commercial use then she'll need to get a lawyer and sue him. As the creator of the work, yes, he owns the image and is free to use it as he wishes, within legal limits. One of those limits is advertising. An image of a person may not be used to advertise a product or services without written consent. It doesn't matter who owns the copyright to the image. The only way that he would be able to use the shot in advertising would be if he has an agreement with your sister-in-law that grants him permission to use the image.
          [ԯ] marcus
          photoblog | Facebook | flickr | 5∞ px | G+

          Comment


          • #6
            All right, since this a very nuanced subject, let's put some links in here as some references before all the apocryphal knowledge clouds the view. For example...

            If she didn't sign a contract, or anything else granting him permission to use images of her for commercial use then she'll need to get a lawyer and sue him.
            Actually the publisher of the advertisement is the person that is liable for any misuse of the photograph. The photographer is only liable if he published it himself.

            Short and Sweet:
            http://en.wikipedia.org/wiki/Model_release

            The Nitty Gritty:
            http://www.danheller.com/model-release-primer.html

            And, as mentioned before, I think these are US-centric.
            Last edited by vandergus; 09-22-2008, 02:16 AM.
            flickr
            Why I Like Photographs

            "It's more expensive, but it lets me adjust really specific settings that most people don't notice or think about." - Abed

            Comment


            • #7
              Self-promotion is pretty standard use, and is in the legal grey zone when it comes to commercial use. If it was used in an ad for Coke, then it's pretty clear-cut. Lots of wedding contracts have model releases in them though. Unless it's spelled out in writing, the photographer always owns the rights to the image, and that's standard international copyright law.
              JamieDePould.com + OneYearPhoto.com
              Nikon D300, D700, Sony NEX5n
              Zeiss 2/25; 1.4/50; 1.4/85

              Please read the rules before posting a critique thread. Rules here.

              Comment


              • #8
                I read a case here in Canada where a photo was taken without her consent, She sued the photographer and was awarded a $1000. But she might have a good lawyer.
                [http://www.flickr.com/photos/paullacroix/ Life is what happens while you are busy making other plans

                http://www.lacroixphoto.net/

                Comment


                • #9
                  And also, don't forget the most important secret option 'C' that people are more and more starting to forget: Your sister should get a bunch of copies of it, say Oh my gosh I am GORGEOUS and mail it to everyone she knows and just be flattered.

                  But Mom, Pentax IS rebellious
                  Pentax K-7, K20D
                  Pentax SMCP-FA 35mm f/2.0 AL -- Pentax SMC 50mm f/1.7 -- Pentax DA 50-200mm f/4-5.6 ED -- Sigma 28-70mm f/2.8 EX DG IF Aspherical -- Pentax DA 18-55mm f/3.5-5.6 WR

                  Comment


                  • #10
                    this is a very grey area and usually depends on the contract.

                    If you hired the person to take the pictures then the copyright usually belongs to you but this would be in the sense that you hired the photographer as an employee.

                    If you bought prints off the photographer then the copyright remains with him, like if you bought furniture off Ikea, they still hold the rights.

                    Now the grey bit, you enlisted the professional services of the photographer to specifically take pictures at a private event. I suppose unless there is a contract to state otherwise he still owns the copyright to the images. You could fight it on an invasion of privacy or on the fact you didn't give consent but as you effectively invited the photographer to the private event and posed for pictures this might prove sticky.

                    There may be other ways to persuade the photographer to pull the advertisement.
                    www.richs.me.uk

                    Comment


                    • #11
                      Originally posted by vandergus View Post
                      Actually the publisher of the advertisement is the person that is liable for any misuse of the photograph. The photographer is only liable if he published it himself.
                      As you readily admit this is a nuanced issue. In this case, if the photographer is the advertiser then he could be held liable for it's content, including the use of photos that don't include a model release. Most newspapers have contracts that require advertisers to stipulate they have the right to use all of the content in the ads. If someone says they have a right to use a photo in an ad, and they don't, the newspaper isn't going to be completely liable, if at all.

                      Also, a lawyer should know who is responsible, so if they followed my advice and hired an attorney, you can bet s/he would know who to name in the suit.
                      [ԯ] marcus
                      photoblog | Facebook | flickr | 5∞ px | G+

                      Comment


                      • #12
                        Originally posted by Mr Guy View Post
                        And also, don't forget the most important secret option 'C' that people are more and more starting to forget: Your sister should get a bunch of copies of it, say Oh my gosh I am GORGEOUS and mail it to everyone she knows and just be flattered.
                        Clearly, the OP's sis-in-law doesn't want her image used in ads and has tried to work with the photographer to have them removed. She's not likely to change her mind about their being used. Litigation is always a last resort, and sometimes just being able to send a cease and desist order on a lawyer's letterhead will be enough to get the result she wants.
                        [ԯ] marcus
                        photoblog | Facebook | flickr | 5∞ px | G+

                        Comment


                        • #13
                          Originally posted by dakwegmo View Post
                          Clearly, the OP's sis-in-law doesn't want her image used in ads and has tried to work with the photographer to have them removed. She's not likely to change her mind about their being used. Litigation is always a last resort, and sometimes just being able to send a cease and desist order on a lawyer's letterhead will be enough to get the result she wants.
                          I wouldn't say clearly. I could easily be wrong, but that's why I threw it out as a possibly preferred action before lawyering up. Based on the previous post and this one, I read it as the SIL hoping there would be some financial incentive and then she was miffed because the photographer went ahead without offering any or waiting to see how she felt about it. There's every possibility if the photographer hasn't gone ahead without waiting for her say so, she'd have flattered not upset by it. That's why I suggested that the best course of action might be to take it as a compliment and avoid the hassle of a legal struggle that's unlikely to be ended without lots of time and effort, and likely hurt feelings on both sides.

                          But Mom, Pentax IS rebellious
                          Pentax K-7, K20D
                          Pentax SMCP-FA 35mm f/2.0 AL -- Pentax SMC 50mm f/1.7 -- Pentax DA 50-200mm f/4-5.6 ED -- Sigma 28-70mm f/2.8 EX DG IF Aspherical -- Pentax DA 18-55mm f/3.5-5.6 WR

                          Comment


                          • #14
                            You may be right that she might have been flattered if he'd used it without approaching her about it. However, based on the two posts by Gigi1. The photographer approached her about it, then used it anyway without getting her approval, and she's asked him to take it down. Her motive behind asking him to take it down really doesn't matter at this point. The fact that she asked him to take it down makes it pretty clear, to me anyway, that she doesn't want him using it.

                            Also, he is hoping to gain materially by using this image of her. It's not unreasonable to expect to have to pay for the privilege of using the photo in an ad. He likely wouldn't have shot the wedding in exchange for high praise about the quality of his work.

                            @Gigi1 something I've been assuming, but don't see stated anywhere, is your sister-in-law the bride who hired the photographer?
                            [ԯ] marcus
                            photoblog | Facebook | flickr | 5∞ px | G+

                            Comment


                            • #15
                              I'm certainly not saying he handled it well, I'm just saying the best course of action at this point is for her to realize that her legal position is awkward at best making it unlikely to have any real benefit to her to pursue it.

                              But Mom, Pentax IS rebellious
                              Pentax K-7, K20D
                              Pentax SMCP-FA 35mm f/2.0 AL -- Pentax SMC 50mm f/1.7 -- Pentax DA 50-200mm f/4-5.6 ED -- Sigma 28-70mm f/2.8 EX DG IF Aspherical -- Pentax DA 18-55mm f/3.5-5.6 WR

                              Comment

                              Working...
                              X