Client saw her pics being sold at Target

kd2

Just had a client ask me if a photographer could use her pics and sell them for profit. She had family pics taken by another photographer a few years ago. She is now seeing her family photos being sold at Target and another local store here. (Her kids photos were taken in native Hawaiian attire, so I guess they appeal to anyone wanting some authentic-looking Hawaiian pics.)

I asked if she'd signed a model release for the images. She did not, she didn't sign anything. So I told her the photographer does not have the right to use those images for commercial purposes.

Suggestions on what she should do?

Art Scott

Simply...contact an attorney..........it is that simple.

Also Do internet searches by description of the photos and photogs name.....she might find herself being sold in more than just Target and the other local store....photog may have also sold stock images..........intellectual property attorney would be the best...............................

kd2

Thanks. Contacting an attorney was my first suggestion, but I hadn't thought about doing an internet search. I'll recommend that.

craig_d

kd2 wrote:

I asked if she'd signed a model release for the images. She did not, she didn't sign anything. So I told her the photographer does not have the right to use those images for commercial purposes.

That's misleading at best. Reasonably authoritative information on when a model release is needed can be found here:

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

It's not nearly as simple as "commercial purposes." If the client did not buy the copyright to the photos from the photographer, then the photographer can still reproduce the photos and use them for other purposes. Some of those purposes require a model release, but others probably don't.

Angelo

kd2 wrote:

Just had a client ask me if a photographer could use her pics and sell them for profit. She had family pics taken by another photographer a few years ago. She is now seeing her family photos being sold at Target and another local store here. (Her kids photos were taken in native Hawaiian attire, so I guess they appeal to anyone wanting some authentic-looking Hawaiian pics.)

I asked if she'd signed a model release for the images. She did not, she didn't sign anything. So I told her the photographer does not have the right to use those images for commercial purposes.

Suggestions on what she should do?

One has to wonder... Target is not in the picture business. Perhaps she's referring to the photos that are often incorporated into marketing cards inserted into picture frames? If that's the case there may be a cause of action against the photographer and the possibility of enjoining the frame manufacturer (packager) and Target. But I find it hard to believe a release wasn't used and she just doesn't recall.

.

astrostu

Craig got to it before I did, but another thing to check is if she really DID sign a model release and simply doesn't realize it nor remember it. People usually simply don't read stuff, so it is possible she signed and doesn't remember.

orljustin

craig_d wrote:

That's misleading at best. Reasonably authoritative information on when a model release is needed can be found here:

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

It's not nearly as simple as "commercial purposes." If the client did not buy the copyright to the photos from the photographer, then the photographer can still reproduce the photos and use them for other purposes. Some of those purposes require a model release, but others probably don't.

Still the question was not about 'some of those purposes', but this specific one where the person's family images are being used to sell photo frames. Which would be a commercial use, and without a release, the OP would be free to seek damages from the photographer.

fredjclaus

I agree. I'd contact a lawyer and see if he can do something, have him take a look a the paperwork that your client says she signed or didn't sign. it could be hidden some place in the fine print.

Legally, without getting her permission, I'd say no. I'm not a lawyer, but I do know here in New York, the only thing you can do is use those pictures as samples of the work you can do without a model release. Any other use of those pictures requires written permission from the subject or the parents if they are minors. Just to be on the safe side I ask all my clients before I use their images for anything other than what they hired me for.

craig_d

orljustin wrote:

Still the question was not about 'some of those purposes', but this specific one where the person's family images are being used to sell photo frames. Which would be a commercial use, and without a release, the OP would be free to seek damages from the photographer.

The OP hasn't made it clear whether the pictures are simply being used as filler to sell frames, or if the pictures are being sold as art. I think Target carries posters as well as frames. Either way, though, the client's photos would not be implying endorsement of anything, so it's not clear to me that a model release would be required.

Gary Peterson Photography

She may want to...

kd2 wrote:

Just had a client ask me if a photographer could use her pics and sell them for profit. She had family pics taken by another photographer a few years ago. She is now seeing her family photos being sold at Target and another local store here. (Her kids photos were taken in native Hawaiian attire, so I guess they appeal to anyone wanting some authentic-looking Hawaiian pics.)

I asked if she'd signed a model release for the images. She did not, she didn't sign anything. So I told her the photographer does not have the right to use those images for commercial purposes.

Suggestions on what she should do?

go to both Target and the other store and purchase the items that they are selling that have her images on them..keeping the reciept and the items with their SKU's affixed...

nipprdog

Gary Peterson Photography wrote:

go to both Target and the other store and purchase the items that they are selling that have her images on them..keeping the reciept and the items with their SKU's affixed...

The voice of logic, has spoken.

kd2

The local Target store here (and the other store which is carrying her prints) sells prints made by local artists--Hawaii landscapes, surf pictures, pictures of hula dancers, etc. My client said she had pics taken of her son in a native Hawaiian outfit and they were meant as family portraits for her family--not meant for any type of commercial use. She was shocked to walk into Target and see her family's portraits for sale as artwork. She knows she didn't sign anything because she has the paperwork the photographer gave her. I suggested she go back and read it to see what it said and then decide if she wants to contact an attorney.

orljustin

Well, it's tough to make an argument here. We know that you can sell "street photography" as "art" or "posters" wherever you like. Obviously, the photographer was hired specifically to create images for private use. I would think that he was in the wrong to try and market these as posters or artwork (even with a basic model release signed). It's an ethics thing, where someone you hire to do something and whom you pay, doesn't try to screw you over by taking advantage.

smurfy

I wouldn't be so quick to presume it was the photographer who did something wrong here. A huge amount of work posted on line, perhaps in an unwatermarked proofing gallery, is stolen by unscrupulous persons every day. Sometimes the thief wants art, sometimes they want a good portfolio to get clients their skill level won't bring in without being dishonest. Could even be a dishonest cousin who saw the opportunity to sell it as a stock image.

My own work has been stolen, and I've read tons of accounts of others in similar situations. So it might be that the photog is totally innocent....who would risk their rep as a family photog in this day and age by misusing the images of their client's kids? Seems counter productive to me.

orljustin

smurfy wrote:

I wouldn't be so quick to presume it was the photographer who did something wrong here. A huge amount of work posted on line, perhaps in an unwatermarked proofing gallery, is stolen by unscrupulous persons every day. Sometimes the thief wants art, sometimes they want a good portfolio to get clients their skill level won't bring in without being dishonest. Could even be a dishonest cousin who saw the opportunity to sell it as a stock image.
.

If the photographer posted it online, with no permission, then it is their fault.

smurfy

".If the photographer posted it online, with no permission, then it is their fault"


Many photographers here on Dgrin use smugmug for proofing galleries, and include that in their contracts. In my case, the client chooses the password, and forwards the link or the info to whomever they choose.

I don't know who this photographer who is being accused is, or if they did anything wrong... Just think that "innocent till proven guilty" is wise given the prevalence of image misuse and copyright infringement. I've personally had clients take their digital files, once they have received them, and upload them to another site, such as Kodak Gallery or Picasa Web Albums, and allow all their friends and family to download them. My contract forbids it, but some have done it.

Just saying...at least ask the Photographer for his story before presuming he did what he's being accused of.