Photographer's Rights questions

[OneWayMule]

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


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 assumed he will be able to at least use the photos from the shoot to put it on his portfolio 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. Saying she did it as a "personal favor" to the makeup artist.

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 portfolio website?
- 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
- No one paid anyone


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

So what say you?

OneWayMule added 1 Minutes and 53 Seconds later...Double Post Merged Below

Here is an interesting bit from Dan's site:

"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"

[ShaneKislack]

Last year Sandro spoke at the Dallas Society of Visual Arts and someone asked him this very question....particularly how it relates to the many books he's published of his images. He said his many high powered attorneys have assured him that no model release was needed as he's not using the images as a commercial endorsement of a product...and he's not manipulating the images to represent something that didn't happen (ie:goat sex).

This jives with all the reading I've done also. However, is the kharma worth it? Since she's only using the for personal things, charge her appropriately. If she wants to use them, model release (for kharma) or money. By the way, in legal matters, there's no such thing as 100%.

[OneWayMule]

Thanks Shane for your input...

Interestingly, i've posted the same questions on another forum and had one person say "Nope, the photographer's out of luck.. he cant use it" and another one advocating to "burn the pictures".

But i'm glad your impressions match mine... that since the photographer is not using it to advertise anything (besides a collection of his work) he's not really selling the Model's image to anyone. And certainly not to goat sex enthusiast

Interesting you mention karma becos the photographer's intention is NOT use the image now (even though they're very good) but what bugs him is that the Model is allowing the Makeup Artist to use them but not the photographer!

[shobson]

As I understand it, nobody can use them unless you allow them to... you hold the copyright. You would have to give her/them permission in the form of a license or release, and even then for specific use. Is the model wanting to use them also, even if just for personal use?

[jeffkohn]

- Does the photographer have the LEGAL RIGHT to use the pictures on his portfolio website?

Print portfolios have traditionally not been found to be commercial use, so a print portfolio should be fine. In theory an online portfolio would be no different, but I don't know if that's been tested in court. It could be a gray area if the portfolio is part of a business website.

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

Self-promotion is advertising, so no.

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

I'm not sure about this one. I would think if she consented to be photographed then there is no expectation of privacy, but IANAL.

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

Editorial has more to do with how the images are used, than what they depict. And editorial doesn't necessarily mean 'news'.

- The pictures were taken on private property

That doesn't really matter. To the privacy issue, it would matter whether it was a public place or not, but that doesn't have anything to do with who owns the property, but whether it is open to the public.

- No one paid anyone

Not really relevent, except that if a model release had been used some form of payment or 'consideration' would be required to make it binding. It doesn't have to be money, it could be prints, limited use rights of the images, etc.

If your photographer friend doesn't want to push his luck by using the images, he might want to consider telling the 'model' to cease and desist if she's using the images in anyway. The photographer retains copyright regardless of whether or not a model release was signed.

[OneWayMule]

Originally Posted by shobson

As I understand it, nobody can use them unless you allow them to... you hold the copyright. You would have to give her/them permission in the form of a license or release, and even then for specific use. Is the model wanting to use them also, even if just for personal use?

Not sure if she wants them, but the concern is not about their right cos they have none.

The questions is if the photographer can even use them on his website or self-promotion if the model is objecting.

[OneWayMule]

Originally Posted by jeffkohn

Print portfolios have traditionally not been found to be commercial use, so a print portfolio should be fine. In theory an online portfolio would be no different, but I don't know if that's been tested in court. It could be a gray area if the portfolio is part of a business website.

Self-promotion is advertising, so no.

I'm not sure about this one. I would think if she consented to be photographed then there is no expectation of privacy, but IANAL.


Editorial has more to do with how the images are used, than what they depict. And editorial doesn't necessarily mean 'news'.

That doesn't really matter. To the privacy issue, it would matter whether it was a public place or not, but that doesn't have anything to do with who owns the property, but whether it is open to the public.

Not really relevent, except that if a model release had been used some form of payment or 'consideration' would be required to make it binding. It doesn't have to be money, it could be prints, limited use rights of the images, etc.

If your photographer friend doesn't want to push his luck by using the images, he might want to consider telling the 'model' to cease and desist if she's using the images in anyway. The photographer retains copyright regardless of whether or not a model release was signed.

Thanks Jeff, i like the way you broke it down.

The thing is the photographer really wants to use them (w/o being an "a-hole" and saying f-u i have the right). So he's left it on the table saying if the Makeup artist uses them then he gets his model release without any moaning.

If she says 'No' to that then they both (model and MU) have to delete them and are left with nada.

[GW2]

The scenario makes absolutely no sense to me. What was the purpose of the MUA and tog getting together in the first place? Practice or generating promo material? If the model does not want the photos anywhere but where she has control, what does the MUA get out of the deal? Is the model's facebook page all the promo the MUA wanted?

If either of them want to see any of the photos, provide a stipulation. If not, chalk it up to practice and move on. If you already gave away the photos, chalk it up to a learning experience and move on. Simple rule of business: no ticket, no ride. If you can't use them, they can't have them. Unless you have a contract to provide a product, they have no right to them.

That's not being an a-hole and more than the model is. You went into this assuming (yup, that fun word) that your time was to be compensated by using the photos. She assumed you just wanted to take pictures of her for what? Practice? Fun? Bad assumptions on both sides.

Frankly, sounds like the whole bunch have very little business savy and not very deep pockets. Legality is silly here. If you use them, who is gonna sue? Costs money. Again, if you ignore the model's request to not use them, I don't see how that makes you any bigger an a-hole than them for not wanting you to use them.

[jeffkohn]

So he's left it on the table saying if the Makeup artist uses them then he gets his model release without any moaning.

If she says 'No' to that then they both (model and MU) have to delete them and are left with nada.

This seems perfectly reasonable to me. If they want to be able to use the images, he should be able to use them as well. Fair is fair; all three parties contributed to the shoot, all three should get some benefit out of it.

[OneWayMule]

Originally Posted by GW2

The scenario makes absolutely no sense to me. What was the purpose of the MUA and tog getting together in the first place? Practice or generating promo material? If the model does not want the photos anywhere but where she has control, what does the MUA get out of the deal? Is the model's facebook page all the promo the MUA wanted?

If either of them want to see any of the photos, provide a stipulation. If not, chalk it up to practice and move on. If you already gave away the photos, chalk it up to a learning experience and move on. Simple rule of business: no ticket, no ride. If you can't use them, they can't have them. Unless you have a contract to provide a product, they have no right to them.

That's not being an a-hole and more than the model is. You went into this assuming (yup, that fun word) that your time was to be compensated by using the photos. She assumed you just wanted to take pictures of her for what? Practice? Fun? Bad assumptions on both sides.

Frankly, sounds like the whole bunch have very little business savy and not very deep pockets. Legality is silly here. If you use them, who is gonna sue? Costs money. Again, if you ignore the model's request to not use them, I don't see how that makes you any bigger an a-hole than them for not wanting you to use them.

Funny how people assume the photographer is me

The purpose was for the Photographer and M.A. to 1) see how they work together and 2) use the shots for self-promotion. Apparently the M.A. neglected to inform the Model about the possible uses and the photog. also didn't speak directly with the Model before the shoot about it.

[Kalrog]

Originally Posted by OneWayMule

Funny how people assume the photographer is me

Well, you are on a forum dominated by photographers.

[Tom]

If the photographer didn't give a copyright release, he could prevent the model and MUA from using the pictures in any way, shape or form.

[toverman]

Originally Posted by Kalrog

Well, you are on a forum dominated by photographers.

And he still asked for legal advice!

As said, the photographer has the copyright to the images and could legally force the others to not display or possess them. Sounds like the "model" is going to have a very short career in front of cameras!

[ddphotography]

This is exactly why, when I do this sort of thing, before I snap a picture one of ANYBODY, I get a model released signed, they don't wanna sign it, fine, we're done...I have my release built in to all my paperwork, so they sign when they initial the conditions... its highlighted, if they "miss it" then its their fault. I don't usually get my camera out until the paperwork has been signed and the session fee(if applicable) has been paid. Pretty much everyone I have taken a photo of, has signed paperwork in my file.
Then there would be no question, but in this situation, if you haven't already given the photos to the Makeup artist, she doesn't get em, till you get a model release, PERIOD, END OF STORY!

[GW2]

[QUOTE=OneWayMule;1000739]Funny how people assume the photographer is me QUOTE]

Change 'you' to 'the photographer' and 'your' to 'his' or 'her' in my previous response and the answer stays the same. No?