Legal question.. calendar and pictures of a band..

Foques

Greetings everyone.

I have built a calendar (screenshots from it can be found here), and so far many people liked the idea.. Not many sales, but i'll live with that.

Now, a "manager" of one of the bands reached out to me stating that he'd never given me a permission to use any of the images of "his" band in a calendar..

All images were taken in a bar, during a public event.. Does he have any ground to stand on?

thank you
Arseny.

Angelo

I think he does.

If you were mounting an exhibit or selling art prints he'd be off base but you've chosen to create a viable piece of merchandise which crosses the line into "commercial use" of his client's images (even if the line is a bit blurry in this instance)

Please scroll through the various links in the "Photographer's Resources" sticky at the top of this forum for more information.

.

Foques

cool. thank you Angelo.

JimKarczewski

Yeah, pretty sure he does, unless as stated you have a commercial use release.

If you were shooting for a paper and it was newsworthy or was used for editorial purposes you would not need a release (typically.) However, do something commercial and well, then you run into issues.

Foques

k. Well, while I was typing the original message, I also sent out an email to my lawyer.
I am fairly confident that he will confirm what you guys are saying. I'm just going to use images from a different band for that month..
If I was making any money off of it, i'd try fighting it, but since i'm breaking even, its not worth it to me. (funny thing is that the band girls are looking forward to getting the calendar.. too bad i'll disappoint them)



edit.
on another hand, no point to even waiting.. i'm just going to use the generic images.

Art Scott

Foques wrote: »

k. Well, while I was typing the original message, I also sent out an email to my lawyer.

Do tell us what your attorney said .......so many times people are advised to seek an attorney and never come back to tell what the out come was....it could be much help to all ......

Good Luck.................

orljustin

Angelo wrote: »

I think he does.

If you were mounting an exhibit or selling art prints he'd be off base but you've chosen to create a viable piece of merchandise which crosses the line into "commercial use" of his client's images (even if the line is a bit blurry in this instance)
.

What's the difference between one "art print", and twelve "art prints" stapled together with a list of weeks below each one?

None. Oh ....

angevin1

orljustin wrote: »

What's the difference between one "art print", and twelve "art prints" stapled together with a list of weeks below each one?

None. Oh ....

It's like Angelo said above: Merchandise! Weird, I know, but then if it were my band I'd feel the same way! Why not offer the Manager a cut? Breaking even means he gets to pay you some, right?

Foques

Well, seeing as how expensive the calendars are, I am making 2$ off each.. I just can't make myself charge people more per calendar.. so, there is nothing to split.
Even if there was something, I am not going to do business with that clown. Ever.

He also expected that i'd give him the high res pictures because I shot his band that is "not a small garage band".. Mind you he has a photographer who is shooting for him.. and all bands i've worked so far are asking him to not shoot for them when i'm at the venue. But he insists on working with that degenerate.

I'm sorry, I am invested into this, and people who stop me from getting things done really get on my nerves.

JBHotShots

I used Lulu.com for my calendars and made $6 per profit. I could make more by buying for myself and reselling them; you get a discount for the more you buy and they send you discount coupon emails quite often. Just for future reference.

aj986s

Foques wrote: »

Well, seeing as how expensive the calendars are, I am making 2$ off each.. I just can't make myself charge people more per calendar.. so, there is nothing to split.
Even if there was something, I am not going to do business with that clown. Ever.

He also expected that i'd give him the high res pictures because I shot his band that is "not a small garage band".. Mind you he has a photographer who is shooting for him.. and all bands i've worked so far are asking him to not shoot for them when i'm at the venue. But he insists on working with that degenerate.

I'm sorry, I am invested into this, and people who stop me from getting things done really get on my nerves.

I could be wrong (wouldn't be the first time..... ), but I think your attitude in the post above is indicative of something a bit less than professional. I'm not saying you're wrong. But how you address/respond to a situation tells alot about a person.

I'm no lawyer, but from what I've read just in this thread so far, it does appear that the band manager does indeed have some basis in fact and law with respect to the commercial sale of your calendars. It sounds like he may indeed be a goof to deal with. But you still have the option of acting professionally. Substituting another band for that month doesn't mean that you're no longer crossing the line about the commercial standing of your product. It just means the other bands aren't pursuing their legal rights. Perhaps a discussion with the band manager can help him understand your small margins which limit any $$ gains to him. But the publicity might be good for his band, especially if your calendars sell well and to the right buyers. Also perhaps you could reach some sort of agreement with him about the hi-rez pics he wants. Maybe a few of those could be sufficient offset for him relative to use of his band's pictures in a commercial calendar. Or maybe you could provide some gratis or discounted prints to the band members.

No one right answer, but lots of options are at your disposal that can put you in the proper/better professional light.

BTW, you do take some very nice band pics!

Foques

I know Tony, this guy and his buttlickers are just getting to me. Sorry.

I am fairly confident that he has a ground to stand on.. My lawyer is confirming that as well, though he said that he could bury the guy if I wanted to.. The tickets were not presenting any information or restrictions, I had an open permission to shoot the band, and limitations were not given. So if I wanted to go to court against that clown, I could win. That said, however, I am not using images. Not for the sake of avoiding court, but for the sake of not advertising his band. (besides, a couple of girls from the band gave me their own permission to use their images)

Thank you on the compliment, sir.

chrisjohnson

As Tony says, your band pics are good. Better for business to make friends. Going to court on this is only going to benefit the lawyers - maybe you win, maybe you lose, but for sure you will spend time and money defending a business which is not worth anything in the first place.

In principle, when you want to make money trading images of other people you better be sure you have their permission. If you don't, the main challenge for their lawyer is to decide which of several laws is most appropriate for making your life a living hell, assuming they can be bothered.

Foques

^
I absolutely agree with you.

OffTopic

Foques wrote: »

The tickets were not presenting any information or restrictions, I had an open permission to shoot the band, and limitations were not given. So if I wanted to go to court against that clown, I could win. That said, however, I am not using images. Not for the sake of avoiding court, but for the sake of not advertising his band. (besides, a couple of girls from the band gave me their own permission to use their images)

People often get confused between the right to take a photograph and the model(in this case the band)'s Right To Privacy and Right To Publicity. The right to take the photo and the rights concerning USE of the photo are two separate things. Being allowed to take photographs does not automatically give a photographer blanket right to do whatever they want with those photos. You need get the proper Model Release(s) to permit the use you desire.

The specific rights vary from state to state, but as Angelo pointed out the general rule of thumb is that you do not need a model release for editorial use...to license the photo to a newspaper, to license the photo to a magazine to illustrate a story about local bands, to display in a gallery, to include in a book of your fine art images (although you would be smart to obtain a release if the editorial usage was of a sensitive nature). But commercial use - trade or advertising, which usually also includes using the image on a product such as a calendar or T-shirt, generally requires a model release.

I'm not an attorney and I don't play one on TV so what I say here is worthless, but I do try to try educate myself because this is an area a photographer could run into some trouble. A couple good resources:

Photo Attorney
Carolyn Wright is a Photographer's IP attorney who maintains a blog with fantastic info. She has also answered general questions for me via e-mail.

Dan Heller Photography
A wealth of information, but may be too technical and wordy for some people.

ASMP Business Resources
American Society of Media Photographers has a good overview of several issues concerning releases.

Angelo

OffTopic wrote: »

...so what I say here is worthless...

Hardly!!!!

and thanks for posting those links again. More time spent perusing the information posted in the "Photographer's Resources" sticky thread would curb the repeated inquiries on subjects such as this.

colourbox

Foques wrote: »

All images were taken in a bar, during a public event.. Does he have any ground to stand on?

If in a bar, that was on private property with the rights controlled by the property owner and band management. This is why, when you go to a festival or concert, they can get away with printing "By using this ticket you agree that we own all rights to photos you take here" on your ticket. While I'm guessing that language wasn't visible anywhere in the bar, it's still true that a lawyer would definitely have to look at this to work out who really has the rights to what.

fjcvisual

Foques,
I am no lawyer, but I deal with legal transactions as a regular course of business, although not for Photography. With that said, I do think you have crossed the line to the commercial side of the equation. You can take the pictures, retain the ownership of the same, and license them as long as it is to inform and or educate. Once you monetize the those ownership rights, the subjects are entitled to royalties unless you have a release.

One crazy idea might be to do a bit of a role reversal here. If they are not a 'garage band', and they have managers / agents, they probably have a marketing budget. If that is true, you might explore selling them a non-exclusive unlimited use license so that they take on all of the marketing expense, and pay you the royalty as they sell the calendars. Not sure if there is enough coverage in the calendar to interest them, but if they are concerned about the amount of publicity they are or are not getting, they probably just want a bit of control, and compensation. If it works, then you can go to the other 11 bands and do the same...

orljustin

fjcvisual wrote: »

Foques,
I am no lawyer, but I deal with legal transactions as a regular course of business, although not for Photography. With that said, I do think you have crossed the line to the commercial side of the equation. You can take the pictures, retain the ownership of the same, and license them as long as it is to inform and or educate. Once you monetize the those ownership rights, the subjects are entitled to royalties unless you have a release.

You should stick with your regular legal transactions. "Art Prints" (posters, etc.) are fine to sell without a release, at least in the US, and what is a calendar but a set of 12 "art prints"?

Foques

^^
you are wrong, actually, FJ is correct.
I can sell pictures all I want, it is when I am printing images on calendars, tshirts, etc, that is when I am crossing into the Commercial use. That was confirmed by my attorney.

Colourbox, the owner of the bar gave me his permission to shoot and really didn't care what I was going to do with images as long as his bar was credited.

chrisjohnson

As an individual you have a basic "human right" to control use of your image. Mostly this is not enforced due to cost, inconvenience, and that many "victims" do not care that much. Mostly photographers get away with using images because the "victim" does not know or cannot be bothered to enforce their rights - this does not mean the photographer is on the right side of the several laws that might be applied whenever serious money or serious offense is involved.

When you want to sell images of other people you had better be sure you have their permission. Even though you probably get away with it 99 times out of a hundred you will not make many friends or increase your future business.

orljustin

Foques wrote: »

^^
you are wrong, actually, FJ is correct.
I can sell pictures all I want, it is when I am printing images on calendars, tshirts, etc, that is when I am crossing into the Commercial use. That was confirmed by my attorney.

I'd suggest finding another attorney. Again, what is a calendar, but 12 art prints put together?

http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

"Commercial use" refers to using a likeness to promote something, like "Joe's Band uses Diamond Guitar Picks while on tour!".

Richard

Seems like a gray area to me, which is where lawyers love to live. Seriously, the court case referred to above was decided on appeal on narrow procedural grounds--the suit was filed too late--not the substantive one, so it's not a good precedent here. I think the OP did the right thing by finding alternative pics and dodging the whole issue. Remember that even if you win in court, you may still have to cover legal fees yourself, which can add up to a whole lot of calendars.

OffTopic

orljustin wrote: »

You should stick with your regular legal transactions. "Art Prints" (posters, etc.) are fine to sell without a release, at least in the US, and what is a calendar but a set of 12 "art prints"?

The 'experts' disagree with you. The ASMP specifically cites calendars as requiring a model release if the OP is printing and selling the calendar to enhance a business interest - advertising, endorsement or trade. My understanding from this is that if it has his name/business name/contact info/logo anywhere on the calendar, it falls into the category of commercial business use. Calendars are one of the most popular tools for advertising/promoting a business, gonna be tough to argue that's not the intent. Even if you don't make money and give them away, if it's used to enhance your business, it will be argued that it's a commercial business use. Profit (or lack of) doesn't play into the equation.

The whole issue of model releases is a very tricky area and even the courts don't always agree. Using a photo on a book cover had generally been thought to be editorial use not requiring a model release, but a NY court recently determined the a model release is needed for the cover of a fiction book. Subscribing to Carolyn Wright's blog is eye-opening because she keeps photographers up to date on recent court decisions that may affect them and sometimes it is very surprising. And again, the specific laws vary from state to state so you need to research the laws in the state in which you do business. It's not enough rely on general info from non-attorneys in photo forums - such as myself. There are too many misinformed individuals giving out bad information on the interwebs.

Top 10 Misconceptions about Photography and the Law

fjcvisual

Ladies, Gentlemen, Colleagues, All around smart people, and ORLJUSTIN,

I think it is safe to say that looking to Wikipedia for an interpretation of law is a bit like shooting a macro photo with a Polaroid, a lot gets lost in the translation. Especially when there is a large warning at the top of the page saying citations are needed.

Adding to the confusion of the 'Commercial Use' claim is the relevance of "Windy City Music" which is the title on the front page and if it would promote Commercial Use or Artistic Expression.

I guess my last comment is this. The bands manager MAY have a claim that could be taken to a court of law. Both sides of the issue have merit and seem equally viable as an argument. However, such discourse for and against the issue will proportionally drive up the cost of litigation which would most likely make filing a claim cost prohibitive.

In any case, I think your approach was big of you, but I do like the idea of working with all of the bands to have each of them promote your calendar.

orljustin

OffTopic wrote: »

The ASMP specifically cites calendars as requiring a model release if the OP is printing and selling the calendar to enhance a business interest - advertising, endorsement or trade. My understanding from this is that if it has his name/business name/contact info/logo anywhere on the calendar, it falls into the category of commercial business use. Calendars are one of the most popular tools for advertising/promoting a business, gonna be tough to argue that's not the intent. Even if you don't make money and give them away, if it's used to enhance your business, it will be argued that it's a commercial business use. Profit (or lack of) doesn't play into the equation.

It certainly looks like a simple calendar about bands, not anything specifically to promote his band shooting business. I doubt a photographer credit would sway anyone either way.

I'm not saying it would hurt to get permission and have a release, but legally, I think the OP would be fine.

Foques

FJ,
that is what ended up happening. only thing i'm bummed about is that I didn't put any of my information on the calendar. so, unless people know who the images were taken by, i'm out of luck.

Oh well.

Another question.. "relate".. there was a software mentioned here, in forums, that had all the photo contracts and that would work on an iPad.. anyone remembers the name?
I want my clients to be able to sign that thing digitally.. (just got an ipad last night.. I my second half, she's amazing)

Angelo

Foques wrote: »

FJ, ...there was a software mentioned here...

http://dgrin.com/showthread.php?t=170964&highlight=iphone+release





.

Foques

Angelo, next time i'm in LA, i'm getting you a pint.. or two...

Angelo

Foques wrote: »

Angelo, next time i'm in LA, i'm getting you a pint.. or two...

I look forward to it! Happy New Year. :slosh


.

Foques

same to you sir!