Upload & Sell: Off
| p.1 #8 · Legal questions regarding HS sports photos |
The company I've been talking to is Koroseal Interior Products Group (koroseal.com), and they are redecorating a couple of Applebee's in the area.
Almost as soon as I read this, I knew it was for an Applebee's. They love feature local photographer's work in their restaurants. I'm nearly 100% certain this has come up before where an FMer was asked to provide images (for little to no money in that case, if I recall correctly). It's probably been a few years since then though.
They have asked for 12-14 images for each of the two restaurants. My first legal question is really whether the display of such images in a restaurant constitutes a "commercial" use of the photos by the restaurant, and therefore requires model releases. I'm certainly not going to assume legal liability for that if it's an unsettled question.
While please keep in mind that I am not a lawyer and this information is for general use only, I would say that the use of these photos is non-editorial (ie., for news purposes, such as in a newspaper, magazine, TV News, or a new website or blog) it would either be Commercial or more likely retail. I'm sure it could be argued that your photos are used to promote a good or service (Applebee's International, Inc. and not your work, for the purposes of this part of the argument), the goal is more for decorative purposes (such as a restaurant that has a painting on the wall, or a baseball bat).
You would still need a release signed by the individuals picture (or their parents; or in some cases by a representative of the organization, such as an athletic director, president, etc.) saying you can use their likeness).
Also, you have not mentioned what level of sport this is. If it's youth, their probably aren't existing marketing contracts. They could be in high school (probably applies to a select few prep academies and non-public schools), but when you get into College and Pros, then you'll have to first deal with a rep from the school or legal department of the organization. For instance, the NBA probably wouldn't allow you to use photos from a Utah Jazz game (and if they did, there would probably some cut of the action to them). The Salt Lake City rec league softball team probably would have that problem.
It also seems to me that using the murals in the restaurants as advertising for me (e.g. by having my name or company info on the murals) would constitute a commercial use. And it's not worth my time to try chase down that many people and convince them to sign releases.
The only argument I can see against this being non commercial use and promotion of goods and/or services (you) is if it's only a credit line: XYZ Photographer/ABC Agency and not contact information.
Tracking down the people involved is a decision only you can make and if you choose to do that, my suggestion is to make this a line item in the bill.
So I've come to the conclusion that the only way I'll do a deal is if they take responsibility for collecting any required release forms, I only accept liability for copyright infringement on my part (which won't happen), and if they pay me a reasonable sum for the images.
I'm still trying to figure out what a reasonable sum might be, so any suggestions on that topic would be most welcome.
Now, the problem is I'm sure your idea of what your worth is not the same as what the restaurant thinks and I'm sure they'll try to lowball you or even get you to do it for free. Even if they say other photographers have done XYZ, take a stand to get as much money as you can (within reason). Of course, the market rate in middle-American may not be the same as LA or NYC.
While it would be illegal (collusion) to tell you what to pay, but some companies such as fotoQuote and BlinkBid exist to assist along those lines. Also, creating an account at Getty Images will give you access to doing mock pricing of their library of images.
I wish you the best of luck and please take a look at these links: