Need more details about the photographer's responsibilities

[Sonny]

We've been contacted by the editor of a local magazine. This is her email she sent to us. So far we assume she means youth little league photos since that is all we shoot.

"I am interested in getting some action sports shots throughout the year in our Woodlands Lifestyles & Homes magazine. For example, during football season run a couple of pages with 8-12 action shots (Sept, Oct. Nov), and then basketball, soccer, baseball. This would be really good advertising for you guys as we could put your website where to go buy photos. Is this something you would be interested in?"

So here's the deal...model release responsibility. In this situation, am I responsible or is the magazine responsible?

[Sonny]

I just found this on another forum. Maybe we can make this a sticky here too?


When do I need a release?

When you take a picture of someone or something and plan on selling it commercially for use in ads, for example, you need a release. It is not your image or property and everyone has a right to control the uses of both.

I want to shoot the local high school and sell to the players and parents. Do I need a release?

Technically, yes you might. However there is a thing called undue burden which could exempt you from getting a signed release from all athletes. In general your selling the images to the people themselves. Very few of these type images are bought by anyone other than the people in them.


What if I am selling photos I took of __________ (fill in the blank). Can I be sued?

Yes but, they must ask you to stop first. This is done in a letter known as a Cease & Desist. If you ignore it and continue to sell, then yes, you may very well be sued, and damn well you should be. They asked you to stop didn't they?

I shot ________ (fill in the blank), which was a public event. Can I sell these photos to the newspaper? I didn't get any signed releases? Can I sell them from my website?

So what if it was public or not, remember in the first answer above, EVERYONE HAS A RIGHT TO CONTROL THEIR IMAGE.
Yes, you can sell to the newspaper if, and only if, the images will be used in an editorial manner related to an article or as a filler with a caption that relates an accurate and true description of the image. Doesn't matter if it is Johnny Depp the actor or Johnny Drip from down the street...editorial is fair game, for everyone.
If you had permission of the event organizer then yes, you may make those images available for purchase. However, once again remember, everyone controls the right to their own image and if they request you remove their image you must.

I have been approached by XYZ company and they want to use one of my photos for an ad. I have no idea of who the people are that are the subject of the photo. Can I still sell this for the ad?

NO, absolutely not. What if the company tells you it will be an ad for fragrances with names which relate to young women. So you sell the image of two girls sitting on a park bench talking with fantastic floral gardens behind them and they are thinking they will use it for the one called "Spring Park". The ad comes out and it is about asking your girlfriend for her personal preference in condoms. Big difference huh? Guess who will probably get sued? Besides the ad company, the company making the fragrances, and you will be very high on the list for providing the image without a release. Now damages from that could be extensive, enough to ruin your life.

I went to the race track Sunday and got some great pictures. One of the sponsors wants to use it in an ad. Can I sell it to them?

Once again the answer is NO. Sure they can probably get a signed release from the car owner, and the driver but, they will also need a release from the sanctioning body as well. Once they present you with a signed release, or a copy thereof, from the sanctioning body, the driver, and the car owner then, and only then are you in the clear.

I went to _______ pro/college game this weekend and got some great shots from my seats. Can I sell these from my website?

Are you nuts? Heck no you can't sell them, well at least not without getting a C&D letter followed by a lawsuit if you persist in continuing to sell them.

When do I need a release?

Anytime you sell an image which may be used in an ad or other display to attract business, other than editorial use. See undue burden above which may apply here.

Someone lifted one of my shots from my website, and is using it without permission on their website. It says right on my website "all images are the property of Rube Willoughby" or "all images are copyrighted" can I sue them or should I just send them a bill.

Did you register the images with the US Copyright Office? If not, you’re not standing on very firm ground. While you may own the image, legally, the law only allows for actual damages. Now if they normally pay $25 for a published picture, that’s about all your going to get. No lawyer is going to even consider taking that case.
If they are registered, the law allows for a greater amount of money. including reasonable attorney fees and court costs as well as punitive damages. I this case you will have plenty of attorneys wanting to talk with you.
Never, ever send them a bill without consulting with your attorney first. You are establishing a value to the image. What if they call you up and tell you to stick it where the sun don't shine? You call the attorney and tell him of the invoice and the amount. He may not be willing to take the case now that a value has been established by you which could limit your damage awards.

I need legal advice.

First off, you should never, ever, ever, take legal advice from someone posting on an internet forum. Today I am an attorney, tomorrow I might be a Hollywood producer and the next day a Doctor. Soon I may be a divorce councilor, who knows?
If you are serious about photography and the business side of it, take an afternoon and get an appointment with a local IP attorney, whether you need them now or not. Usually a first consultation is free, between 30-60 minutes. Explain that you need to establish a relationship with an attorney should the need for their services arise but, you do have some questions now.
Get to know this guy/gal. Maybe some company will send you a contract to sign before you do some work for them. It makes about as much sense to you as hieroglyphics (Ancient Egyptian writing) but, it all looks good. Your attorney may take a look and say all is good. No problem, probably cost you $50-75. He may also look and say "Whoooaaaaaa. what is this? Don't sign this under any circumstances. See this phrase, 'XYZ company is released from any and all damages or claims against it or any of its agents for any reason in regards to images sold by your name here'? Something goes wrong and you just signed away any recourse you have to come back on them in case your sued over that image." Now just think if you were told it was for an ad for a fragrance called Spring Park and was of two girls you shot last spring in the park and the actual ad was for Her Choice Condoms. How much was that $75 consultation fee really worth?

[Tom]

A magazine may be considered editorial use, unless it is specially in an advertisement.

No MR necessary for editorial.

[Steelsun]

No model release needed for that, in my non-lawyer opinion.
But if they are not gonna pay you for a full page or more of filler where you only get a credit line, don't know if that's worth it.

[Sonny]

Originally Posted by Steelsun

But if they are not gonna pay you for a full page or more of filler where you only get a credit line, don't know if that's worth it.

That's what I'm hearing. I posted this question on another forum and many agree the credit line is a waste and will not equal results.

[Tom]

Oh yeah. Credit means jack. I totally don't care about it. The usefulness is to be able to google search it and find your tear sheets. I doubt anyone is going to see a picture credit, then look up the photographer to book them.

[CaptainTom]

Would a quarter/half page ad in this magazine benefit you ?
If so, barter with them for the images.

Unfortunately these mags don't pay well for images that are not used in major articles or on the covers.

A line credit is useless. A line credit doesn't pay the rent and they know that.

[bryanlindsey]

Originally Posted by CaptainTom

Would a quarter/half page ad in this magazine benefit you ?
If so, barter with them for the images.

Sounds like a good idea to me.

[Jeff Lane]

Tom's idea is a good one. (And I can't usually say that.)

And yes, it's generally true that a news source can get away with publishing images without a model release. But you should keep in mind that what they want is pictures of people's CHILDREN playing sports, and folks can get a little peevish about that. Furthermore, look at what the email says -- they anticipate your getting revenue by putting up a website where unnamed persons (parents? grandparents? perverts?) can go to buy their own copies of the pictures. That starts to skirt around the commercialization of images issue, potentially compromising your "editorial use" argument.

So, getting a release of some kind might be a good idea. And it strikes me that getting a signature on that release would be easier if your release form could have the name and logo of the magazine at the top of it -- parents are more likely to give consent to photograph to someone they've heard of, and if you're that famous as a photographer, you don't need the magazine's "advertising opportunity" to begin with.

If this sounds like an enticing proposition to you, you might approach it by preparing an appropriate model release, leaving a space for the magazine's name and logo, getting the magazine's permission to use this logo while at the same time making sure the body of the release clearly states that YOU are going to own the copyright (not the magazine) but that both YOU and the magazine have permission to use the photos as you wish. And display your website's URL prominently at the bottom, with an invitation to buy any images not published in the magazine. And get the magazine to put a quarter-page advertisement in its next issue, so that you can show it to the parents, to lend yourself extra credibility. This way, parents are more likely to sign the release without questioning it, the magazine gets what it wants, and you get the big payoff through advertising (and maybe some sales straight off the little league game).

Let us know how this works out.

[toverman]

Don't know about the legalities that could stem from the type of magazine, but it looks like one of those glossy, upscale advertorial publications where everything is basically a commercial enterprise. There isn't much "editorial." People or businesses featured in articles usually have bought an ad that accompanies the stories.

My assumption from the e-mail was that they are wanting photos of high school games in a multitude of sports.