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08/12/2004 10:32:12 PM · #1 |
Hello,
I have a question regarding an incident that happened. I think it would be easier to first describe the situation and then ask the question. Basically I took a photograph (actually many) of a friend during one of our usual get togethers. Once developed and printed, I even shared the image with this friend and gave him a copy. At the time I told this friend that I would be having a show coming up using 'these kinds of photographs' - meaning this was not the first time he was involved in me taking his photo (he never complained once) as well as photographs I've taken of other friends and family. I then put one of his pictures in the show and now he has contacted a mediation firm because he is upset that I used his picture without directing asking his permission.
The issues are these:
I didn't directly ask his permission but I did share the work and the fact I would be having a show where it was likely his photography would be included.
I did not obtain a release from him to use his likeness.
The images do not show his face clearly but are probably recognizable to people that know him (even though several people who know him did not recognize him in the picture).
I guess my biggest question is what should I do from this point forward? Obviously this friend has some issues but has not wanted to talk directly with me without a legal mediator. If only he had expressed a desire for me not to use his image I would have respected his wishes. Do I have to remove the picture from my show?(I probably will) and do I have any issues with selling the picture?
Now I have to worry about this mediation process.
Any thoughts, suggestion, or opinions would be appreciated.
Thanks,
rory dean |
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08/12/2004 10:40:17 PM · #2 |
I would remove it,Give him/his firm all the photos of him.(i don't like to be in any shape,fashion,form in trouble with the law...lol
or call his firm and make a deal to split the money.
Just don't ignor the problem.
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08/12/2004 10:44:02 PM · #3 |
If he is at all recognizeable, and these photos are being used commercially (i.e. you intend to sell them), you must have a release. I would remove them immediately. The fact that he never complained means nothing. You should have expressly informed him of your intentions and obtained a release.
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08/12/2004 10:49:11 PM · #4 |
Hmmmm. I'm not a legal expert, but I have worked as a legal assistant for lots and lots of years -- mostly in corporate legal though. Of course, hindsight is 20/20 and now you know it would be better if you could have a basic Release that allows you to own the rights to any pictures you take, but it's hard to imagine that someone would really want to spend lots of money pursuing this action against you just for using a picture with him in it in a show (jeeeeeez. This is the most disgustingly litigious society. It makes me so mad!) Are the pictures damaging to him in any way? Inflamatory? Or put him in a light that hurts his reputation or image? If not, then why does he want to go to the trouble? I kind of think he doesn't really have much ground to stand on. Not many real lawyers would even take a case like that if he did decide to pursue it with an attorney -- unless the picture was harmful to him in any way. Gosh. I guess I wasn't much help, but I just wanted to write and "feel for you". That really sucks what that guy did! I think he's a creep. Maybe you should just keep your picture in your personal portfolio and not bother with him anymore. Good luck! |
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08/12/2004 10:54:57 PM · #5 |
Everyone has the right to control the use of their likeness. Stanford University has some good reading on copyright and fair use issues. You can find it here:
//fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html
Message edited by author 2004-08-12 22:55:36.
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08/12/2004 10:55:51 PM · #6 |
A very interesting question. Found this detailed site via google: //www.danheller.com/model-release.html
The whole things sounds pretty muddled to me - to be safer from a legal standpoint I'd not want to try to sell the picture. Money makes people crazy.
Mediation is not being sued. There may be some sort of "judge" involved who will render opinions, but it isn't binding. Keep in mind that whatever is said will be witnessed by lawyers and such and should things go from bad to worse you might have to eat your words.
Message edited by author 2004-08-12 22:56:35. |
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08/12/2004 11:03:05 PM · #7 |
well, bad news is that you have done something "illegal", good news is that chances are that the "damage" suffered by your 'friend' are minimal monetarily, and he'd have to prove them. either way though, you had better not use those photos anywhere.
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08/12/2004 11:05:07 PM · #8 |
Seek the counsel of a lawyer.
Opinions on this site are just that: opinions. You need guidance from someone versed in copyright law.
Having typed that with all the emphasis I could muster I would say that based on what I've read regarding similar issues this sounds like it could go either way. One thing you absolutely do not have a right to (and there is legal precedence on this one), you cannot sell or license a likeness of this person without his/her express knowledge and consent.
You can use a photo of someone for editorial purposes without their consent and for some newsworthy stories (although even some news stories won't gain you legal protection without corroborating evidence or witnesses).
It's an arguable case about whether you can have his image in your show. It in no way hinges on whether you mentioned it to him or not. The burden is on you to obtain his release to utilize his likeness (assuming it can reasonably be demonstrated that he is recognizable in the photos).
If you are interested in making a legal issue out of this rather than just removing the photo (and what exactly are you going to lose from your "show" by removing the photo), then I suggest you secure a lawyer to help you sort out this issue sooner rather than later.
Kev
Message edited by author 2004-08-12 23:05:31.
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08/12/2004 11:05:59 PM · #9 |
If you have ever exhibited photos of your friend then you have a pretty good case to make to the mediator that you DID adequately inform your friend and received tacit consent (no objection expressed at the time), all of which would probably constitute an enforcable (but not necessarily provable) verbal contract.
If you've never shown pictures of your friend before, then it's really an issue of whether you said "These types of pictures ..." or "May use some of these pictures ..." with the latter phrase giving you more of an edge ... |
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08/12/2004 11:07:18 PM · #10 |
Wow...I think I found a really wonderful group of people here at the dpchallenge forum. I hope you don't mind me going on about it but I was thinking I might get a reply in the next couple of days and before I could even get out of the site there you people are. Thanks so much for listening and responding.
I thought I'd add...
Yes, now that this has happened I'll have to develop a release form (actually there have been several good ideas already posted here) and consider who it is that I am shooting at all times. I would never have imagined that a so-called friend of many years would react this way. Grant it, I have not used him in my shows before, but we've spent many hours together taking pictures, writing, drawing, and generally just hanging out. The picture in question was not unflattering at all and as I mentioned, he has seen it and was given a copy. He never complained the way you might think if someone sees a picture of themselves. If he had said, Yuck! I would have pulled it from consideration.
I guess that really is the bottom line. I'm not a cruel person or in any way out to 'make a buck' on something that is distasteful or otherwise unsuitable for public viewing. I thought the picture, as did others, was a wonderful instant of our time together, innocent and simple enough. I agree with you SandyP, and thanks for your kind words.
rory
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08/12/2004 11:10:00 PM · #11 |
Originally posted by frisca:
well, bad news is that you have done something "illegal", good news is that chances are that the "damage" suffered by your 'friend' are minimal monetarily, and he'd have to prove them. either way though, you had better not use those photos anywhere. |
What about an image like this, of an essentially unrecognizable person in a public place?
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08/12/2004 11:27:33 PM · #12 |
As photographers, we should do the morally right thing. What is legal/illegal doesn't really matter as much as what is right. I would never consider publishing for sale any photos that had people in them without their permission, regardless of whether it's legally acceptbale or not. If there is a person in the photo, especially if that person makes up the subject or part of it, you should have that person's permission to use the photo for anything other than your personal portfolio.
The other rule of thumb is:
If you have to ask whether its right/legal to do, you probably shouldn't do it.
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08/12/2004 11:53:58 PM · #13 |
Originally posted by GeneralE:
What about an image like this, of an essentially unrecognizable person in a public place?
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It's my understanding (and that's not a legally significant one) that since the person is indistinguishible from any number of people similarly dressed in this pose, this would be OK to sell or license without a signed or written release form. On the other hand I understand that even if the whole person is not recognizable then if part of the subject is noticible (like feet or hands for instance) you may actually need a release form.
Regardless of whether you need a release form to sell or license the image, I believe you are liable under US law for fair use compensation and you open yourself to litigation with merit if you do not agree on some way in which to compensate the subject.
The Stanford link looks like a good brief introduction to this and you might find more of an answer there.
Kev
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08/13/2004 10:03:32 AM · #14 |
Yeah, I'd remove him from my friends list.....
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08/13/2004 12:16:14 PM · #15 |
| Legal issues aside ... is it worth loosing your friendship with him? |
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08/13/2004 12:18:41 PM · #16 |
I get the feeling there must be a bit more behind this - surely if he was unhappy he would just mention it to you, rather than going to a legal service immediately ?
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08/13/2004 01:19:00 PM · #17 |
| I'd photoshop him until he was reaaaalllly ugly. |
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08/13/2004 01:22:57 PM · #18 |
Originally posted by GeneralE:
Originally posted by frisca:
well, bad news is that you have done something "illegal", good news is that chances are that the "damage" suffered by your 'friend' are minimal monetarily, and he'd have to prove them. either way though, you had better not use those photos anywhere. |
What about an image like this, of an essentially unrecognizable person in a public place?
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I don't think that is a problem. My original answer was directed at situations where the person is recognizable and there was no release. You are correct in pointing out that where the person is not recognizable, there is no model release obligation.
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