Photographer's Rights question

OneWayMule · September 23, 2009

My questions is fairly straight-forward about a Photographer's Rights in the U.S. but...
...before i pose my question, please answer if you are absolutely 100% positive or better yet, please point me in right direction/site where this right is stated.
Sorry, there are too many opinions and not enough facts out there :deal

Ok...
A Photographer gets together with a Makeup artist to do a photoshoot.
The Model is a friend of the Makeup artist.
Foolishly the Photographer thinks he will be able to at least use the photos from the shoot to put it on his website - and does NOT GET A MODEL RELEASE.
Now the Model DOES NOT want her pictures to be anywhere except where her "family and friends" can see them like facebook.

The Photographer is now beating himself over the head and has learnt his lesson. So...

- Does the photographer have the LEGAL RIGHT to use the pictures on his photography business website as part of a portfolio?
- Does he have the legal right use them for "self-promotion"?
- Does the Model's Right of Privacy outweigh the Photographer's even in this situation?

Also some misc. facts:
- They are NOT editorial in any way
- The pictures were taken on private property

I have visited quite a few sites (like http://www.danheller.com/model-release.html) but cannot come to a definite understanding of this.

Please enlighten me!

BOATS · September 23, 2009

attempt
not sure if this helps - but here goes - if you look through the document below - there is a referance that you can go to to get a more clear answer - if this does not help you i appologize - i thought maybe the referance would be what you are looking for. - good luck

MOD EDIT: Article deleted for possible copyright infringement

BOATS - Since you changed the font, size and color the article was not visible so I can't tell if it's a complete cut and paste. If you feel it's a worthwhile addition to this thread please post a link to the article instead. Thank you.

BOATS · September 23, 2009

check out the link - there is more info there
http://www.krages.com/bpkphoto.htm

there is another post in here above this string that has various conenctions to issues of photograpers rights - check it out

OneWayMule · September 23, 2009

Thanks boats for the info... however it doesnt cover the kind of photographer's right i'm looking for.

But good to know i can photograph accidents and bridges!

nipprdog · September 23, 2009

OneWayMule wrote:

Does he have the legal right use them for "self-promotion"?

No.

nipprdog · September 23, 2009

OneWayMule wrote:

Foolishly the Photographer thinks he will be able to at least use the photos from the shoot to put it on his website - and does NOT GET A MODEL RELEASE.

So, if you're admitting to being a fool, why do need conformation?

OneWayMule · September 23, 2009

nipprdog wrote:

So, if you're admitting to being a fool, why do need conformation?

Who said it was me?
But i'll go with the flow if it makes u happy

Angelo · September 24, 2009

Sohil:

At the top of this forum there is a sticky thread titled "Photog's Resources" in which you'll find lots of helpful information.

But as this seems very specific I'll offer my advice based on real life experience. But I am not a lawyer. As far as I know we have no practicing attorneys on this board so ANY advice you get must be weighed against that fact.

OneWayMule wrote:

Ok...
A Photographer gets together with a Makeup artist to do a photoshoot.

WHY? WAS THIS AN ASSIGNMENT FOR THE MAKE-UP ARTIST'S PORTFOLIO?

The Model is a friend of the Makeup artist.

NOT NECESSARILY RELEVANT

Foolishly the Photographer thinks he will be able to at least use the photos from the shoot to put it on his website - and does NOT GET A MODEL RELEASE.

TSK TSK - YES, A FOOLISH ASSUMPTION BUT WE NEED MORE INFORMATION ABOUT THE EVENTS LEADING UP TO THE SHOOT

Now the Model DOES NOT want her pictures to be anywhere except where her "family and friends" can see them like facebook.

SHE CAN DENY YOU THE RIGHT TO POST BUT YOU CAN IN-TURN DENY HER COPIES OF THE IMAGES TO POST ANYWHERE.

The Photographer is now beating himself over the head and has learnt his lesson.

GOOD FOR YOU. EVERY EXPERIENCE IN LIFE SHOULD BE A LESSON

- Does the photographer have the LEGAL RIGHT to use the pictures on his photography business website as part of a portfolio?

POSSIBLY BUT THE WATERS ARE TOO MUDDY

- Does he have the legal right use them for "self-promotion"?

ABSOLUTELY NOT

- Does the Model's Right of Privacy outweigh the Photographer's even in this situation?

NOT ABOUT PRIVACY

Also some misc. facts:
- They are NOT editorial in any way

NOT RELEVANT

- The pictures were taken on private property

ALSO NOT RELEVANT

If you'd like to tell us more about what led to the shoot perhaps we can glean additional information to clear some of this up.

.

OneWayMule · September 24, 2009

Angelo wrote:

Sohil:

At the top of this forum there is a sticky thread titled "Photog's Resources" in which you'll find lots of helpful information.

But as this seems very specific I'll offer my advice based on real life experience. But I am not a lawyer. As far as I know we have no practicing attorneys on this board so ANY advice you get must be weighed against that fact.

If you'd like to tell us more about what led to the shoot perhaps we can glean additional information to clear some of this up.

.

I appreciate you taking the time to answer Angelo.

The story behind the shoot is the photographer and the makeup artist wanted to shoot something together for the first time. To see how they work together and in the hope to use the images for self-promotion. Like i said, the photog. foolishly assumed the model would be OK of her image being used, at the very least, on portfolio website. Hope that clears up any confusion...

Though couple of things you stated that i'm very curious about:

- You said "not relevant" to the pictures not being editorial and that they were taken on private property. Are you saying this becos it was a planned shoot? Becos certainly editorial use is a huge "loophole" where photographers do not need releases. And the subject being on public property automatically gives the photog. the right to use the image, except selling it for advertising/commercial use. Even though mine was in private property I'm curious why you would say it doesn't matter becos i think it can make a big different.

Dan Heller does a good job explaining this editorial thing HERE - Under When a Release is Necessary"... paragraph 3

- You also said that it was not about Right to Privacy. If not privacy, then which civil right is it that gives the Model the authority to say no?

- - - - - - - - - - - - - - - - - - -
I just read this on Dan's site and found it interesting:

"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.

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."

MODEL RELEASE PRIMER - Last 3 paragraphs under "Self-Publishing"

.

Angelo · September 24, 2009

Not relevant in the sense that it doesn't apply to this situation. This was not an editorial shoot. (and by editorial in this case you're referring to newsworthy, public PJ work) This was a planned shoot with an implied contractual understanding between photographer and model that evaporated and not protected absent a written contract and / or signed releases. So it doesn't matter what the basis of the shoot was or whether it was done on public or private property.

As for privacy; this is not about defining terms under which the model can classify her objections. You don't have a model release, you're screwed - period, the end! This is a simple and straight-forward case of contractual law.

I do want to stress - you also have a defensible position in this matter. If the model refuses to sign a release than you have the right to refuse her, and the make-up artist, from using your images. Put them on notice they will not receive copies of your images for use anywhere until and unless the model grants you release.

Under these circumstances there's another possible glitch you could find yourself in. You should get a release from the make-up artist also.

Cygnus Studios · September 24, 2009

Angelo wrote:

I do want to stress - you also have a defensible position in this matter. If the model refuses to sign a release than you have the right to refuse her, and the make-up artist, from using your images. Put them on notice they will not receive copies of your images for use anywhere until and unless the model grants you release.

That is perfect advice.
I would destroy the images and not work with this model or make up artist again.

In the past it was much easier for the photographer to stand their ground and use just about any image. Even though the law has not caught up, many photographers are sued over images, forcing all of us to play by new rules.

The simplest thing to do is get a release signed prior to unpacking the camera.

OneWayMule · September 24, 2009

Angelo wrote:

Not relevant in the sense that it doesn't apply to this situation. This was not an editorial shoot. (and by editorial in this case you're referring to newsworthy, public PJ work) This was a planned shoot with an implied contractual understanding between photographer and model that evaporated and not protected absent a written contract and / or signed releases. So it doesn't matter what the basis of the shoot was or whether it was done on public or private property.

I see what you meant now...

As for privacy; this is not about defining terms under which the model can classify her objections. You don't have a model release, you're screwed - period, the end! This is a simple and straight-forward case of contractual law.

Interesting. So then what do you make of Dan Heller stating a law that regards pictures on portfolio website as "vehicles of information" and no release needed in that case?

I have the quote and link at the end of my previous reply

I do want to stress - you also have a defensible position in this matter. If the model refuses to sign a release than you have the right to refuse her, and the make-up artist, from using your images. Put them on notice they will not receive copies of your images for use anywhere until and unless the model grants you release.

Oh, no doubt and the photographer is well aware of that.

Under these circumstances there's another possible glitch you could find yourself in. You should get a release from the make-up artist also.

Ya, technically they should have rights to their artistic work too. Wouldnt hurt to have them sign it too.

..

Angelo · September 24, 2009

OneWayMule wrote:

..

Angelo wrote:

Interesting. So then what do you make of Dan Heller stating a law that regards pictures on portfolio website as "vehicles of information" and no release needed in that case?

..

Because in this case there's a third party involved who apparently was instrumental in the original agreement for which you are lacking details.

In a straight forward relationship between photographer and subject a release is NOT needed for portfolio presentations (web or otherwise) nor for the selling of individual prints as works of art. But in this instance the involvement of the third party (make-up artist) it is unclear what agreements were inferred.

Additionally one must consider the professional status of the subject of a photograph. I will argue that when a famous person or a professional model is solicited to sit for a portrait is it assumed the photographer is aware of the potential for financial gain and thus responsible and possibly restricted to the payment of fees for the sitting. This would be quite different from a candid shot taken of a celebrity seen in public.

OneWayMule · September 24, 2009

Thanks Angelo, you've stated a few things to really consider...

Photographer's Rights question

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