LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

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LEGAL QUESTION (Yes, I know this is the internet, and tha...

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p.4 #1 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

In all likelihood if you give her files/images she'll be posting them on facebook herself anyway.

I know nothing about family law. But I'm guessing since they have joint custody, one has as much right as the other, so if the father says "yes, you can post them online." Then you have a parent/guardians permission. I don't think they need to be in agreement about it.

You really don't need to post everything you do online. Just take the check, deliver their photos and forget about the whole thing. But if you just really need to post one more kid on your website, I say either swallow it and spend the money on this to hire a lawyer for an hour and get his advice on the situation, or just don't do the shoot at all.

Aug 27, 2012 at 04:01 PM

gschlact
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p.4 #2 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

mlife wrote:
Almost this EXACT scenario happen to me a few years back but the wife had actually sent me a certified letter. I took the letter and the husbands signed contract to my attorney and he literally LAUGHED.... I did the shoot and sent her a link to a PUBLIC flicker album just to piss her off. Never heard from her again.

+1
And also publishing as portfolio and art isn't even commercial use requiring release (which of course really covers you full butt) when you own the copyright.

Sep 01, 2012 at 03:27 AM

Craig Gillette
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p.4 #3 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

When the portfolio is used to promote your business, it may well be commercial. It's also critical to know just how the law is written and applied where you are as the states do vary on this and what may be acceptable in one state may not be in another.

Sep 01, 2012 at 05:12 AM

Jeff Donald
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p.4 #4 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Copyright laws are Federal and most people don't want to pay the expense to litigate there. This is not some small claims mayor's court. A Federal judge would throw this out and I doubt she could find a lawyer that would even take it to court. You really don't want to embarrass yourself before a Federal judge.

If you haven't already done so, I would have my contracts and model release reviewed by a lawyer familiar with your states laws and then proceed based on his advice.

As far as use in a portfolio or on your website it is usually deemed a commercial use and you would want to make sure your contract covers that. It also helps to have paid for the commercial use so if you have your heart set on using them, I would pay for their use and pay the father a $100.

Sep 03, 2012 at 10:13 AM

RDKirk
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p.4 #5 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Craig Gillette wrote:
When the portfolio is used to promote your business, it may well be commercial. It's also critical to know just how the law is written and applied where you are as the states do vary on this and what may be acceptable in one state may not be in another.

What is probably most critical and most variable in this case is what "joint custody" actually means in that state. In the state in which I was divorced, joint custody of my son would have meant that either of us would have the right to make independent decisions--it did not mean that we had to agree. But I suspect it means just the opposite in many other states.

OTOH, I had full custody of my son, yet it still would have been legal in that state for my wife to have his picture taken during visitation and to give permission for his picture to be used commercially. My having full custody did not make her a non-parent, and written permission for commercial use of photography required only that she was a parent. It has to be noted here that the state did not require a model release to be a legal contract--only "written permission."

To prevent her from doing even that much would have required proving that she was unfit to be allowed any parental rights at all--I'd have to prove she was so dangerous that she couldn't even have supervised visitation.

Otherwise, she was still legally a parent and could give "written permission."

Sep 03, 2012 at 03:35 PM

gschlact
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p.4 #6 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Just curious... For those saying Portfolio online could be considered as Commercial use (advertising), what is your opinion on just putting all those Portfolio shots up in a for sale (ie- prints non commercial) as in others can purchase prints of your copyrighted material which it is my understanding that you do have a right to sell without Model release as long as no other contractual disallowance. Do you agree this would be legally allowed to put into an online for sale gallery without model release? (this question is outside the PR aspect of annoying a parent dispute the legal right which would be considered separately)

Guy

Sep 03, 2012 at 03:51 PM

Jeff Donald
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p.4 #7 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

If's it's sold as art it doesn't need a model release, if it is used to sell or illustrate something it is commercial and needs a release. So, a photo of a person on a public sidewalk, they have little expectation of privacy (hence the word <public>

and it can be sold as art. In other words you can make prints of it and sell it in a gallery or online.

However, put that same image in a calendar and sell 10,000 copies, or sell it for use in a text book, or to sell a product or service and it's commercial and you'll need a release.

Portfolios and online sites that promote your business is a grey area. It could be construed as commercial if you have other commercial activities on the site, such as weddings, portrait & model sessions etc. But if you only promote limited editions of prints sold only as art, it's less grey. Best to get a release or avoid usage of images you don't have rights to. Always consult an IP lawyer if you have doubts.

Sep 03, 2012 at 05:49 PM

RDKirk
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p.4 #8 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Portfolios and online sites that promote your business is a grey area. It could be construed as commercial if you have other commercial activities on the site, such as weddings, portrait & model sessions etc. But if you only promote limited editions of prints sold only as art, it's less grey. Best to get a release or avoid usage of images you don't have rights to. Always consult an IP lawyer if you have doubts.

This is true. Challenges are certainly possible.

A photographer who is normally in the business of selling his services might well be challenged if he says, "That was an art portfolio." At that point, he may be be called to prove in court that he really is an art photographer: Where have his exhibitions been? How much work has he actually sold as pure art rather than solicited business?

So if you're normally in the business of solitication, it's best to get the releases rather than try to walk the edge of the line.

Sep 04, 2012 at 12:38 PM

Joseph Garcin
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p.4 #9 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Dude, her life sounds like it sucks pretty much as it is. Take some nice shot of the kid alone and send them to her for free.

You would be amazed at how good you feel.

Edit-I realize that this is probably not the best idea, as it would most likely anger the paying customer, but seriously, in the big scheme of things, what do you honestly think the right thing to do is?

Edited on Sep 04, 2012 at 01:14 PM · View previous versions

Sep 04, 2012 at 12:51 PM

Joseph Garcin
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p.4 #10 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Sep 04, 2012 at 12:54 PM

Jeff Donald
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p.4 #11 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

RDKirk wrote:
Portfolios and online sites that promote your business is a grey area. It could be construed as commercial if you have other commercial activities on the site, such as weddings, portrait & model sessions etc. But if you only promote limited editions of prints sold only as art, it's less grey. Best to get a release or avoid usage of images you don't have rights to. Always consult an IP lawyer if you have doubts.

This is true. Challenges are certainly possible.

A photographer who is normally in the business of selling his services might well be challenged if he says, "That was an art portfolio." At that point, he may be be called to prove in court that he really is an art photographer: Where have his exhibitions been? How much work has he actually sold as pure art rather than solicited business?

So if you're normally in the business of solitication, it's best to get the releases rather than try to walk the edge of the line.

Thanks! You worded that much better than I did and made it much clearer to the other readers.

Sep 04, 2012 at 06:44 PM

Monito
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p.4 #12 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

tylerdrumm wrote: This morning, I received a text message from the ex-wife:

"Hello Tyler. I understand that you will be taking photos of [name redacted]. The point of this text is to let you know that I do not give you my permission for you to put pictures of [name redacted] on the Internet or use pictures of him in any way to represent your business. If you have any questions, feel free to ask me."

It is part of the agreement/contract with the father that I retain copyrights to the images for web usage and as part of my portfolio. They share joint custody of the child, and she is not involved with the shoot or paying for it in any way.

You don't have a right to advertise or market with them, unless you have a model release. A promotional website counts as publishing for commercial benefit. Copyright is not sufficient.

However, you can show prints in person when you show your portfolio in person, or exhibit them on a gallery wall, or sell fine art prints, or sell books with the prints inside but not on the cover. You can't sell posters.

Even so, it would not be good business practice to annoy the woman. It would not generate any good will and can be negative. It is often said that one happy customer tells three people but an unhappy camper tells a dozen.

Are the photos that good or that necessary? Generate more photos and get releases and don't use the contested ones.

Sep 06, 2012 at 01:50 PM

Craig Gillette
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p.4 #13 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

As it comes down to the state laws, if you find anything to be unclear or open to interpretation, I'd suggest you get competent local legal advice. There's a lot of general discussion or pragmatic business advice on the net and plenty of forum discussions. One can easily look up the laws for any state. Here's a source for Illinois law:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62

and California law:

http://corporate.findlaw.com/litigation-disputes/practitioner-s-guide-to-california-right-of-publicity-law.html

As one can see, they are different. You may be "right" but controversy, reputation or litigation can be costly.

Sep 07, 2012 at 01:41 AM

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p.4 #14 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

OK - late idea but to get the WHOLE win on this how about > having the father post the photos to his facebook page and tag you (your company) in his post? "Big thanks to Tyler for taking such awesome photos of me an my kid - you can get your family portraits at www.tylerswebsite.com"

Sep 10, 2012 at 11:55 PM

anthonysemone
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p.4 #15 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

If it's joint custody they have, OP, and if this were in PA, and the document/text you got from the Mother is in fact from her, you'd better have your legal team ready in the event that you used the pictures in any way against her wishes. That's just my .02. YMMV.

Sep 11, 2012 at 12:09 AM

Arka
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p.4 #16 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

tylerdrumm wrote:You are probably right. I am in some ways letting my emotions get the best of me. It's always nice to have the legal upper hand though.

In this situation, the "legal upper hand" may belong to the parent most willing and able to pay a lawyer. Your copyright is separate from a parent's custodial right to protect a minor child's privacy. In other words, the mother won't sue you for copyright infringement; she'll sue you for violating the privacy rights of her minor children. You can try to complicate the process for the mother by demanding a notarized version of her prohibition, but that, in all likelihood, is simply a delay tactic. It seems that she has put you on notice.

It's quite astonishing. I posted this on another forum, and got nothing but a bunch of high and mighty BS. Here at FM, I get opinions and ideas that are presented in a respectful fashion, and responses that are thought out, logical, and based on personal experience. Most likely because there's a much larger concentration of working professional photographers with this type of knowledge here. I must really say thank you to everyone who has responded thus far. You guys are great.

The best advice you've gotten is to either (1) avoid doing the shoot, or (2) do the shoot, deliver the images, and never use them for yourself. Any effort you make to restrict the printing rights of the mother is likely to be ineffective, vindictive, and a poor use of your time.

Arka C.

Sep 11, 2012 at 11:28 PM

alohadave
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p.4 #17 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Joseph Garcin wrote:
Dude, her life sounds like it sucks pretty much as it is. Take some nice shot of the kid alone and send them to her for free.

You would be amazed at how good you feel.

Edit-I realize that this is probably not the best idea, as it would most likely anger the paying customer, but seriously, in the big scheme of things, what do you honestly think the right thing to do is?

The right thing to do is to not enable crazy psychos. It only reinforces their belief that that thy can get whatever they want if they scream loud enough.

Sep 26, 2012 at 02:42 PM

sic0048
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p.4 #18 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

alohadave wrote:
Joseph Garcin wrote:
Dude, her life sounds like it sucks pretty much as it is. Take some nice shot of the kid alone and send them to her for free.

You would be amazed at how good you feel.

Edit-I realize that this is probably not the best idea, as it would most likely anger the paying customer, but seriously, in the big scheme of things, what do you honestly think the right thing to do is?

The right thing to do is to not enable crazy psychos. It only reinforces their belief that that thy can get whatever they want if they scream loud enough.

+1 - giving her free stuff isn't going to change her opinion of the photographer, it will only reinforce the idea that she was right.

Sep 28, 2012 at 02:24 PM

Z_man
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p.4 #19 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

The following are excerpts from the Library of Congress's web site (http://lcweb2.loc.gov/ammem/copothr.httm):

Privacy and publicity rights reflect separate and distinct interests from copyright interests.

While copyright protects the copyright holder's property rights in the work or intellectual creation, privacy and publicity rights protect the interests of the person(s) who may be the subject(s) of the work or intellectual creation.

The privacy right or interest of the subject is personal in character, that the subject and his/her likeness not be cast before the public eye without his/her consent, the right to be left alone. The publicity right of the subject is that their image may not be commercially exploited without his/her consent and potentially compensation.

_________

By using photos on your website, you are most probably using them for "advertising."

In the case of a minor, I would be more careful than with an adult. I would never use them without the consent of both parents. The fact is that you have only the consent of one, and a specific objection from the other. If the objector is as you describe her, do you really want to buy a lawsuit? Do you think it is worth it? Lawyers are expensive, and you may not have any insurance if you are sued.

Oct 01, 2012 at 01:40 AM

alohadave
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p.4 #20 · LEGAL QUESTION (Yes, I know this is the internet, and that you're probably not a lawyer)

Z_man wrote:
By using photos on your website, you are most probably using them for "advertising."

Not necessarily. Advertising means that the people in the pictures are endorsing the product or service. Posting a picture of someone in a web gallery doesn't really imply that they are endorsing any service. Simply that they were photographed during a job, and you are showing the results.

Oct 01, 2012 at 05:04 AM

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