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Archive 2015 · Question about needing permission to publish for profit

  
 
MRM4
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p.1 #1 · p.1 #1 · Question about needing permission to publish for profit


Most of my photo work is in the area of local short track racing. For several years, I have produced yearly calendars with the drivers' cars and their name (no head shots). I have never asked for permission to use them and no one has ever complained.

There is one driver that's a big deal in the sport that I'd like to use in my next calendar. It would really boost sales. I have heard from others that he asks people get his permission before publishing them, but I don't know if that involves paying money for that permission. I attempted to talk to him once last year about this and it was not a good time to ask. His basic response was "what can you do for me?".

So the question I have is permission really needed in these situations if I'm using my photos and none of them have any trademarks on their likeness or anything like that? I never have received a clear-cut answer on this and I thought this would be a good place to try to get an answer. Thanks.



Jun 04, 2015 at 01:01 PM
mdude85
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p.1 #2 · p.1 #2 · Question about needing permission to publish for profit


Not intended as legal advice...but ... this scenario seems to involve the concept of rights of publicity, which refers to the right of an individual to control the commercial use of his name, likeness or image.

In this case if someone looking at the photo can recognize the custom car as belonging to the driver (even if you don't include the driver's name), then that can be an issue if you wish to use it commercially. If you do include the driver's name with the photo then that seems like a pretty clear cut example of appropriating the name for your own commercial use.

There's an interesting legal case about this issue in Motschenbacher vs. RJ Reynolds Tobacco Company. In the case the plaintiff Lothar Motschenbacher was a racecar driver whose distinctive car was used by RJ Reynolds in a tobacco ad. Even though RJ Reynolds tried to modify the image (by changing some of the decals and such) the image of the car was still recognizable by his fans.

Again, not intended as legal advice, but in this case you don't really have anything to lose by simply asking for permission, but I'd say you would be taking a risk by just publishing the photos in your calendar without asking. Even if he doesn't take a legal action against you, he might have the power to tarnish your reputation as a respected photographer within his community.




Jun 04, 2015 at 02:44 PM
Deezie
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p.1 #3 · p.1 #3 · Question about needing permission to publish for profit


Permission is needed in order to use someone's likeness for commercial use, such as calendars, and just about anything else sold for profit. What you can do, however, is use a persons likeness for editorial purposes. For example, a newspaper is doing a feature article on said Driver, and so it's appropriate to sell a photo you took of that driver so that it can be used in a newspaper, magazine or online. If you're not using the photo editorially, then you must have written permission to do so - and if it's a very well known person, there's likely to be money involved, unless the guy's a friend of yours.


Jun 04, 2015 at 07:21 PM
rw11
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p.1 #4 · p.1 #4 · Question about needing permission to publish for profit


the likeness issue is tort law - he'd have to sue you; here is something to read:
http://www.dmlp.org/legal-guide/using-name-or-likeness-another

a pic of his car is an interesting issue - is the track open to the public? was a ticket required? if so, what exactly was the contract you entered into when buying a ticket? yes - there was a contract...

is his car distinctive? would everybody recognize it as his?

easiest thing is to just ask his permission again



Jun 04, 2015 at 07:55 PM
jamez
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p.1 #5 · p.1 #5 · Question about needing permission to publish for profit


To add more fuel to the fire... the car may have sponsor logos/sticker on it... they may/may not want to be involved, and you'd have to work with the Driver/Team to get permission for that use transferred as well (as it will likely be in their sponsorship agreement anyway)


Jun 09, 2015 at 10:02 AM
MRM4
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p.1 #6 · p.1 #6 · Question about needing permission to publish for profit


rw11 wrote:
is the track open to the public?


Yes.

rw11 wrote:
was a ticket required? if so, what exactly was the contract you entered into when buying a ticket? yes - there was a contract...


Yes, but I'm given a media pass. Never have read any of the agreements.

rw11 wrote:
is his car distinctive? would everybody recognize it as his?


Yes, very much so.




Jun 09, 2015 at 10:08 AM
rw11
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p.1 #7 · p.1 #7 · Question about needing permission to publish for profit


you should definitely try to get his permission - people have protectible interests in distinctive objects they own, and he seems to be a bit of celebrity

any sponsor decals could definitely make things worse, but...

imagine the brouhaha if he says he owns the copyright to the "painting" that is the outer surface of his car

if he sells little prints of the car or his helmet - or models - he can claim a Trademark

then, there is the right of publicity which is based in state law, so will depend on your state he has the right of to control any commercial use of his image, likeness, or some other identifying aspect of identity like his car

he might not win a lawsuit, but you will be very unhappy either way

I'd get written permission of every driver to make this compilation - it should help them, right? then I'd approach him, note that everybody else signed on



Jun 09, 2015 at 03:43 PM
MRM4
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p.1 #8 · p.1 #8 · Question about needing permission to publish for profit


I will try with him again. Appreciate all the advice.


Jun 09, 2015 at 03:47 PM
obscure
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p.1 #9 · p.1 #9 · Question about needing permission to publish for profit


It is going to depend on you states interpretation of "commercial use". An artist or their agent selling a photograph isn't "commercial use" which is defined in most states as use (not sale) of an image to promote a service/company/product or cause. As such no permission/release would be needed. In the RJ Reynolds case quoted above the company was using the image to promote their products and as such permission was needed. Having said that, that case was unusual as it revolved around the likeness of a vehicle (not normally protected by image rights). The court ruled that the car design was so distinctive and had been used for so long that it was a part of the drivers likeness.

Of course none of that will stop a big driver/team from suing you just to force you to stop.



Jun 10, 2015 at 03:10 AM
rw11
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p.1 #10 · p.1 #10 · Question about needing permission to publish for profit


no, most of the issues are federal law - and commercial use may not even enter into the liability for some things


Jun 10, 2015 at 03:26 PM
Littleguy
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p.1 #11 · p.1 #11 · Question about needing permission to publish for profit


Which issue is Federal law?

Copyright is Federal law but since he was the photographer who took the photos - that shouldn't be a problem.

But rights of publicity and rights of privacy are state law and will be a problem if his use is deemed "commercial" in nature - hard to say it was editorial use if you are using it to sell a calendar...

http://www.publicdomainsherpa.com/rights-of-publicity-and-privacy.html

rw11 wrote:
no, most of the issues are federal law - and commercial use may not even enter into the liability for some things





Jun 11, 2015 at 02:40 PM
johnvanr
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p.1 #12 · p.1 #12 · Question about needing permission to publish for profit


Just go to him with a standard model release and see what he wants. If he was really a big shot, he'd have an agent who would represent him in situations like this.

Also, how much extra money do you think you will make if he's in the calendar? Is it worth it?



Jun 11, 2015 at 02:56 PM
mdude85
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p.1 #13 · p.1 #13 · Question about needing permission to publish for profit


Yes, Little Guy is correct. This is a torts issue, so, state law.


Jun 11, 2015 at 03:14 PM
rw11
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p.1 #14 · p.1 #14 · Question about needing permission to publish for profit


Littleguy wrote:
Which issue is Federal law?

Copyright is Federal law but since he was the photographer who took the photos - that shouldn't be a problem.

But rights of publicity and rights of privacy are state law and will be a problem if his use is deemed "commercial" in nature - hard to say it was editorial use if you are using it to sell a calendar...

http://www.publicdomainsherpa.com/rights-of-publicity-and-privacy.html



IP law is complicated - suffice it to say that the driver has many federal rights that could be asserted against a calendar maker, commercial or not - he would also have rights under various state statutes and common law theories

ask him (and all others) for permission and I'd get something written - I also bet that if he is not in this year's calendar he might want to be in next year's

Just like another recent thread, a lot of bad advice is being given out - to protect yourself well you would want to consult a lawyer competent in this specialized area of law, not just any lawyer. Yes, it is expensive.




Jun 11, 2015 at 03:20 PM
gschlact
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p.1 #15 · p.1 #15 · Question about needing permission to publish for profit


obscure wrote:
It is going to depend on you states interpretation of "commercial use". An artist or their agent selling a photograph isn't "commercial use" which is defined in most states as use (not sale) of an image to promote a service/company/product or cause. As such no permission/release would be needed. In the RJ Reynolds case quoted above the company was using the image to promote their products and as such permission was needed. Having said that, that case was unusual as it revolved around the likeness of a vehicle (not normally protected by image rights). The court ruled that the car
...Show more

I agree that the calendar would not be deemed commercial use, unless it was used by the racetrack. If it is just sold by you as art or just as a themed calendar it is not commercial use.

However, commercial use is not the only reason that necessitates a Release. If you have personal gain (make money) the right to Publicity will likely require a Release if you take advantage of a person's reputation, prestige, or other value associated with him. A decent litmus test, would a different item or person's likeness have equally served in the calendar, or was there an advantage to using that one person/car?

In the case of the calendar with 12 cars, it would be harder to prove that the 1 driver bringing suit created the gain for you. However it could be a coin toss and judged either way. This also is true for any Trademark reproduction. Did the trademark add value to your reproduction.? If so, then release is necessary.


Here is another example where it could be even more of a gray area:
Say you were at a race and you got a shot of a wicked crash of a known dirver/car flipping in the air. Would you be allowed to sell photos of it stand alone? On one hand you have right to publicity, but on the other it might be able to be deemed editorial or newsworthy as an event that occurred at a public event? Would this trump publicity right, or does the photo need to exist and be deemed part of and editorial media even though there was a caption with date, location and description of who and what is happening?



Jun 25, 2015 at 09:29 AM





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