Picture used without consent

[Gigi1]

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?

[vandergus]

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.

[zespri]

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

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.

[candleman]

[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...

[dakwegmo]

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.

[vandergus]

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.

[jdepould]

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.

[beatles2]

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.

[Mr Guy]

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.

[richsuk]

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.