No Release.. My rights?

[sbug_adam]

So when I was in college I took several shots of friends and people I knew for my portfolio. I sent releases to everyone and they all returned except 1 girl. shes not responding to my messages or emails, etc.. I know she reads them (myspace messages) but still nothing,, I keep telling her I need it back asap and yet nothing. Havent heard or recieved anything from her in about 4 months. now, my question is.. do I still have the right to use the image as I see fit?

Im using the image to promote my site.. which in turn can be promoting my business and/or promoting my work..

[KdLaneJr]

Hopefully one of the forum "experts" will provide you with some feedback.

My take on it is: As long as you are not selling the image for profit and not defaming her with it, there is not much she can do about it. You have the copyright and it's for your website. Easy to remove if you ever feel the need to.

Using it as an example of your work shouldn't be a problem.

That said, I have no legal expertise in this sort of thing.

Ken

[kenw]

the profit factor has nothing to do with it. That much I do know. But in this case it is used to generate business via a website and any court will agree that most businesses are meant to make a profit.

Defaming is relative and the subject of much legal wrangling. She may consider a bad hair day defaming. And a jury might agree.....

Unless the pic was taken in a public area and she's not specifically identified, she does have rights.

short (non-lawyer) answer: don't use her pic.

[suzyjazz]

I second that -- don't use it. Promoting your business with her image is commercial use, whether anyone objects to it or not. Likely nothing would ever happen, but if she's ignoring you like that there may be a reason and I would not take the chance.

Oh yeah, I have no legal credentials and I don't know that much, either!

[HotHolly]

No, you cant use it. And the fact that you think she is getting your messages about needing the form back, and she isnt sending it back, means that it is likely to turn into an issue, if you try to use it. You dont want to deal with lawyers...and you are likely to loose, since you have no form.

From what my lawyer told me - you must have the form, otherwise its equally her image and your image. That means that it does neither of you any good without the other (you needed to give her the copyright release to print it, and she needed to give you the model release so you can use it)

Always have the person sign the form BEFORE the shoot. People get weird afterward and say no, forget, or change their minds...

[PeteQ]

Originally Posted by kenw

Unless the pic was taken in a public area and she's not specifically identified, she does have rights.

Not entirely true. There is case law in NY where a photographer took pictures of people on the street, without their knowledge or a release, and sold them as art. Clearly a commercial use. One person filed a lawsuit citing privacy but the lawsuit failed and the photographer was allowed to keep selling the photos as art. The important part of the decision was that the people were in public and so they have no expectation of privacy as it applies to having ones picture taken.

Question: Is this picture so good your portfolio cannot live without it?

If yes, consult an IP attorney. You may be within your rights to use it depending on the specific circumstances of its capture.

If it's not, then is it really worth any hassle you may encounter?

This is one of those scanrios where you may well within your rights to use it, as you own the copyright, but the cost to defend the circumstances may outweigh any benefit of using it.

[jeffkohn]

Not entirely true. There is case law in NY where a photographer took pictures of people on the street, without their knowledge or a release, and sold them as art. Clearly a commercial use. One person filed a lawsuit citing privacy but the lawsuit failed and the photographer was allowed to keep selling the photos as art. The important part of the decision was that the people were in public and so they have no expectation of privacy as it applies to having ones picture taken.

I don't think that it was "clearly commercial use"; in fact the reason he won the case is because it was not commercial use. Whether or not you receive money for a picture is not what determines if it was used commercially; in fact it is quite possible to use an image for commercial use without ever receiving a penny (using an image to promote/advertise your own company being an obvious example).

With regard to using someone's image/likeness, the question of whether such use is "commercial" does not depend on whether money changed hands. It depends on whether the image was used for advertising, promotion, or in some way that could be reasonably construed as implying endorsement or affiliation. Court cases over the years have pretty consistently affirmed this definition of commercial use.

Getting to the original poster's question. Traditionally a print portfolio for an artist has not been considered commercial use and would therefore not require a release. However using an image for personal promotion in say a flyer or advertisement is definitely commercial use and requires a release. Taking the same principals and applying them to the web, things can get a little murky and probably haven't been as well-tested in court. An online gallery that serves as your portfolio should be OK, but if your website promotes your business then you need to be really careful about using images on that site. Using the image in an area that's clearly marked as a portfolio or gallery may be OK, but is arguably shaky ground. Using the image in other parts of the web siteincluding banners, the default page, etc would more than likely be considered commercial use.

Most advice on this topic actually tends to be overly cautious, and that's not necessarily a bad thing. Even though past court cases have held that selling fine art prints or using prints in a portfolio is not considered commercial use, doesn't mean that somebody can't sue you over such usage. The fact that you'd most likely win in the end may not negate the fact that you could end up spending a lot of time and money fighting the case. (In the case of the NY photog Pete mentions, it was probably worth it since the prints were selling for thousands of dollars and I believe there was also a book).

For info on this topic from somebody who actually is a laywer, you might want to check out the PhotoAttorney blog. She also has a new book out that covers this topic and many other legal issues as they pertain to photographers.

[jeffkohn]

From what my lawyer told me - you must have the form, otherwise its equally her image and your image.

I think your lawyer oversimplified a bit. A model release (or lack thereof) has no bearing whatsoever on the ownership of an image. It only has a bearing on how the image can be used. As the photographer, you always are the sole owner of the copyright for the images that you have taken regardless of the image's content or the circumstance it was taken under, unless you specifically assign those rights to somebody else, either via a licensing agreement or a work-for-hire agreement. This may seem like nit-picking, but it is a relevent issue. For instance a model may have the right to prohibit you from using images you took of her commercially, but she does not have any legal standing to demand access to the pictures, or to demand that you destroy them. Likewise, a rent-a-cop at the mall can tell you not to take pictures, and can demand that you leave the premises if you violate that request; but they cannot legally confiscate your camera or film/memory, nor can they claim any ownership of pictures you may have already taken.

[PeteQ]

Jeff, my point was that not only did he sell the prints, but some of those images were also used in the advertising of said book. The "commercial" aspect was that these were not strictly for his portfolio.

Because it is a gray area you'll notice I wrote that unless is a shot that he cannot live without he should let it go, or if he wants it that bad, consult an attorney directly.

I shall watch my wording more closely next time.....

[Outlaw]

I concur with everyone else; although you probably have a legal right to use her image in your portfolio (online or otherwise) under a form of editorial fair-use (you are not implying she endorses your work, merely that she was a subject of one of your photos), if she's specifically avoiding your requests for the form, she may make an issue of it down the road. Just get another model and shoot the exact same photo if possible, this time with release in hand ahead of time.

"As far as I know" (and what I practice with my own business), you should be safe in using anyone's photograph in your portfolio so long as it was taken in a public place and the image does not defame or otherwise damage the subject. Newspapers (and perhaps in the case of the above-mentioned book) have even greater latitude due to editorial rights and protection.

So long as you are not giving any implication that the subject is endorsing your product, it would be very hard for them to argue that you used their image in a commercial way. For example, without a release, I would without hesitation put an image of a subject in my online portfolio; however, I would not use that image for something like an in-house advertisement, much less anything more obviously connecting the subject's image and reputation to my business or product.

As always, consult an IP attorney if you want the "real" answer, or simply nix the image and replace it with one that you are confident you have rights to use.

[Shane]

Seems pretty simple to me - A release is needed for the commercial use of a person's name or image.

A "commercial use" occurs when selling (or endorsing) a product or service. For example, if your website offers haircutting products and you feature pictures of people using the products, you would need a release from the people in the photos. A release is not required if the person cannot be recognized in the photo, for example, if the photo only includes the person's hands. Several decades ago, the failure to obtain the release would have led to an invasion of privacy lawsuit. However, the "right of publicity" has now become the claim de jour for those whose name or image is used for commercial purposes.

And what is "right to publicity" . . .

The right of publicity grew out of the general principles of invasion of privacy that prohibited the appropriation of a person's name or likeness to gain some benefit. Within the past few decades, the right of publicity has emerged as an independent type of claim that can be made when a person 's name or likeness is used for commercial purposes. Although the right of publicity is commonly associated with celebrities, every person, regardless of how famous, has a right to prevent unauthorized use of their name or image to sell products. The right of publicity extends beyond the commercial use of a person's name or image and includes the use of any personal element that implies an individual's endorsement of a product, provided that the public can identify the individual based upon the use.

In many states, the right of publicity survives death and can be exercised by the person's estate.

Stanford Law School has a great resource that covers all of this:

http://fairuse.stanford.edu/Copyrigh...iew/index.html