Georgia Photographers--legal question

femsista · May 17, 2009

I have a photo of my daughter and her little playmate on my portfolio page of my website. It is not for sale. I simply use it to show what I am able to do for children's photography.

The mother of this child goes through moments of being very difficult to deal with. She has a problem with the photo being up there of her daughter. She was there when I took the photo and approved of the photo when I originally put it on my site as a portfolio image.

Now she is one of her moods and has demanded that I take it down and has her 1st year law student husband throwing around some large terms trying to scare me.

He is telling me that by putting the photo in my portfolio (even if I am not selling it) I am using it for commercial gain which means that is misappropriation of likeness and gain and that by Georgia law I am in the wrong.

Can someone please inform me of my rights as a photographer? This photo was taken at a public park on a public playground in the presence of the child's mother. I use it as a portfolio image and in no other way. Am I in violation of anyone's rights?

From what I have read, I am not violating anyone's rights. I know I could take it down and appease the mother, but since it is my photo and this woman is doing this to be spiteful for other reasons (remember I thought we were friends) I don't feel like I should have to take it down unless I am in violation of some sort of privacy or violating someone's rights.

HELP!

Cygnus Studios · May 17, 2009

You are really going to have to speak to a lawyer in your area for the correct answer. Laws vary, and even being legal things can still be not worth it. If you value the friendship, take the photo down, and never shoot anyone in the family again.
If you wish to fight it, hire an attorney or wait and see if they hire one. Keep in mind that this way is going to cost you time and money no matter the outcome.

femsista · May 17, 2009

more info to the situation
Since my original post, the law school husband has emailed me telling me that because the photo of his daughter and my daughter are on my website in my portfolio section, I am directly gaining from the likeness of his daughter's image. He said that my portfolio images are being used to endorse my services thus leading to commercial gain. He has said I am violating the privacy laws of his daughter.

So my questions are this:
Is my portfolio on my website considered commercial use (ie am I endorsing, advertising or promoting any kind of product or idea)
Does images in my portfolio mean I am directly using the images for commercial gain.
Am I violating any privacy laws by putting an image as described in my portfolio.

Any suggestions for building a portfolio without running into this situation? Do I need a model release to publish an image of two children (one of which is my child) on my portfolio that is only a gallery of images that I have taken--not for sale--just for viewing?

Any Georgia specific laws?

I know I could take the photo down, and I probably will just to keep these people from running around town bad mouthing me even though they were once friends. But I do want to know clearly what my rights are in this scenario. I have read a lot of the forums and info links, but it can get really confusing. Bottom line, I did not take the photo with the intend to make money off of it. I did not put it in my portfolio with the intent to make money off that specific photo. I simply put it in the porfolio to show some of the shots I have done with children in the past. My intent of taking the photo was because my child was in it. It just ended up being a good porfolio image.

So yeah I think I have included all the details. Ready for feedback!

Cygnus Studios · May 17, 2009

Read this about model releases

The Dan Heller site should be bookmarked by everyone. While it only offers general advice, it is a good place to start.

Art Scott · May 18, 2009

femsista wrote:

Since my original post, the law school husband has emailed me telling me that because the photo of his daughter and my daughter are on my website in my portfolio section, I am directly gaining from the likeness of his daughter's image. He said that my portfolio images are being used to endorse my services thus leading to commercial gain. He has said I am violating the privacy laws of his daughter.

So my questions are this:
Is my portfolio on my website considered commercial use (ie am I endorsing, advertising or promoting any kind of product or idea)
Does images in my portfolio mean I am directly using the images for commercial gain.
Am I violating any privacy laws by putting an image as described in my portfolio.

Any suggestions for building a portfolio without running into this situation? Do I need a model release to publish an image of two children (one of which is my child) on my portfolio that is only a gallery of images that I have taken--not for sale--just for viewing?

I make it clear to all my clients that their photos could very well be included in my portfolio.....which consists of a bound portfolio book and also website.......I have had no complaints and been doing this well over 25+ yrs.......

Any Georgia specific laws?

I know I could take the photo down, and I probably will just to keep these people from running around town bad mouthing me even though they were once friends. But I do want to know clearly what my rights are in this scenario. I have read a lot of the forums and info links, but it can get really confusing. Bottom line, I did not take the photo with the intend to make money off of it. I did not put it in my portfolio with the intent to make money off that specific photo. I simply put it in the porfolio to show some of the shots I have done with children in the past. My intent of taking the photo was because my child was in it. It just ended up being a good porfolio image.

My thinking goes this way......your child was playing with an acquaintance in a public park and you took the photo with the knowledge and consent of the other parent (which you actually did not need in a public park....in most areas of the world I am familiar with) so they have no leg to really stand on....

HOWEVER.....AS YOU SAID THEY COULD START A CAMPAIGN OF BAD MOUTHING YOU (SLANDER IS AGAINST THE LAW) and hurt your business or it could drive business your way...I know sound weird but I have many times that publicity is publicity.....good, bad or indifferent it is still good publicity...........

I bet if you gave an attorney a transcript of your dealings with this couple that in less than an hour he would have a concrete answer for you....make it a lawyer with some clout and if he sends the couple a letter it might scare the beejeeezers out of them......normally a letter from a lawyer with clout stops most ofthese types of instances........

So yeah I think I have included all the details. Ready for feedback!

above in bold andno I am not an attorney nor in Ga.......

femsista · May 18, 2009

Thanks I did bookmark Dan Heller's info to help get me started.

I think I might have handled it in my own biting kind of way. I mean this person will bad mouth no matter what, but I have a huge area to market in and I doubt her bad comments will get too far.

The request was to take the identifiable photo of the child down( one is of the two backs of the little girls and one was one of the two sharing a brownie). So I played around with picnik and did a doodle image of the one identifiable image by adding fun stickers to both children and then added to the caption that explains to potential clients that the photo is done in a doodle style to capture the magic of their child's personality and that the child can receive a complimentary doodle image print with the purchase of portrait photos as my gift to the child.

After doing the doodle, you can no longer identify the other little child and their main concern was that there was an identifiable photo of their daughter on my site.

So I feel like I didn't give in and take the photo down, but I turned it into a fun and useful marketing tool that doesn't identify the child in any way and allows me to do something fun for future clients as a freebie.

I guess I tried to make lemonade out of a whole bunch of very sour lemons.

Blaker · May 18, 2009

femsista wrote:

I think I might have handled it in my own biting kind of way. I mean this person will bad mouth no matter what, but I have a huge area to market in and I doubt her bad comments will get too far.

Never underestimate the power of 'word of mouth'.
You don't want to get yourself into the situation of 'winning the battle but losing the war'.
When you're in a business that is based on dealing with all kinds of people and personalities, sometimes it's best to just bite your tongue and be nice than to get into a power struggle which in the short run might give you a little satisfaction, but in the long run will hurt your business/reputation.

femsista wrote:

So I feel like I didn't give in and take the photo down, but I turned it into a fun and useful marketing tool that doesn't identify the child in any way and allows me to do something fun for future clients as a freebie.

I guess I tried to make lemonade out of a whole bunch of very sour lemons.

It sounds to me like this was just a personal power struggle between you and your friend. With all of the other photos on your site, did you really need to use a photo that the parent CLEARLY didn't want used in that fashion?
It doesn't matter that :
1) your child was also in the photo
2) she saw you taking the photo
3) she initially "approved" your use of the photo

The website you are displaying the photo on is clearly advertising your business. The photos shown are in effect 'advertisements' for the work you do. So she could bring a lawsuit against you for using her daughter's photo as a marketing tool to gain clients.
She probably won't, but is it really worth all this time and energy over something so trivial?
If she did approve of your use of the photo on your business website, that would have been a good time to whip out the model release and have her sign it- then there would be no problems down the line.
In the absence of a model release,I think it's in your best interest to just drop the photo from your site.
If you love the photo that much, frame it and put it on your mantle, or put it in a scapbook or something.

It sounds like you dug your heels in and refused to remove the photo because you didn't want her to 'win' this battle. Believe me, life is too short for this kind of nonsense. She doesn't want her kid on your site, so big deal, respect her wishes and remove the photo. If that is the ONLY photo that is going to convince clients to use your services, then you shouldn't be in this business.
If you have a strong body of work to show, then you don't need this photo anyway.
So be the better person, and the professional businessperson, and drop the photo, and drop the power struggle with this woman, and get on with your life.

mercphoto · May 18, 2009

In the future, have clients sign a model release form giving you permission to use the photos from the session for your marketing purposes so this doesn't happen again, with the option for them to opt-out. I wouldn't rely on verbal agreements for this. Fundamentally they guy is correct - the images in your portfolio are commercial use (they are marketing material for your business) and not editorial use.

Blaker · May 18, 2009

Just wanted to add, the doodle pic really detracts from your site. It's out of place, tacky, kind of creepy, and I get the impression it was done out of malice.
Seriously, be a grown up businessperson and just delete the photo and move on. You are doing much more harm to yourself than you are to this other woman.

johng · May 18, 2009

I'm going to jump on the 'just remove it' bandwagon. Chalk this up to a lesson learned. In a very real sense - if you're planning on making money, if you don't have a dozen other shots you can replace this one with, you're not good enough to make money yet. That's the hard truth.

JohnBiggs · May 19, 2009

And then there's the question of photos displayed on your website. Here, the question is both easy and complicated. The easy part is for photographers who post photos on websites for the purpose of selling/licensing of images. This is not a form of publication that requires model releases. The courts call this a "vehicle of information," and has been established by the Illinois Appellate Court in this document. (This is discussed in more detail in Model Releases.)

For purposes of this discussion, we assume that the way photographers typically use images are generally not violating people's civil rights, or break any civil liberties laws. In that case, what we have left over are uses that are not considered "publishing," so the rules of when a model release may come in don't apply. It doesn't mean that someone can't complain, and you'd have to deal with that. In fact, if you're a wedding photographer, you don't need to have model releases for people you have shot in previous weddings to display them on your website to illustrate the work you do. However, if someone objects, it's probably in your best interests not to use the image(s) anyway, because your work is largely based on your reputation in the community. The lesson here is that "being right" may not translate to good business sense. You have to think about what's good for business first, even if the law is on your side.

Source:http://www.danheller.com/model-release-primer

So if you are selling the photo, it's ok. If you aren't selling it but using it to show your work it's ok. IANAL.

Georgia Photographers--legal question

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