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My ex is threatening to sue me for using her photos
  
 
Jeff Donald
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p.3 #1 · p.3 #1 · My ex is threatening to sue me for using her photos


No, unless the other person is a minor that you are the parent, guardian or have Power of Attorney over. the individual controls their own right to privacy and right to publicity. But if the image contains a recognizable image of the person objecting, they can force a removal/take down of the image. If other people in the image reached an agreement for commercial use of the image, it would need to be altered (cropped, Photoshopped etc.) to remove the recognizable image of the person objecting.

All of the above assumes that the image is being used in a commercial manner, not fine art or editorial usage.



Feb 13, 2017 at 01:38 AM
gschlact
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p.3 #2 · p.3 #2 · My ex is threatening to sue me for using her photos


Also remember, that often Judges rule subjectively on these matters. Deciding a wedding photographer website is commercial is often not the point of consideration, but whether a portfolio can be presented is what gets ruled on. An interesting twist would be to put for sale as fine art, all images on your website. Then it will not be commercial use but rather sale of fine art. Then again, it could be judged as both by some Judges as well.

If you make your Ex sue you, the best you can do is represent yourself, win and continue using them. However the downside is much worse, you hire attorney, lose the case, and must pay her compensation for using her likeness for commercial use promoting your business. If you have no revenue during the period of posting, it may or not limit her award. Despite imho you having the right to use the image of her as portfolio on your website, the downside seems much greater. So, if you think she will hire an attorney that your Ex will insist on taking it to court even after your ague with him your rights, then imho your downside is too great. I however believe that any attorney taking this on a contingency basis would not press onward because they know it is a jump ball on the ruling. They would try to bully you into compensation. So it would require her funding an attorney all the way through. Does she have a couple of thousand dollars at least to see it through? Fortunately DCIM take down is only for copyright and not commercial use or privacy issues. Likely your action depends on how thorny you want to be toward her request.



Feb 13, 2017 at 05:28 AM
Jeff Donald
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p.3 #3 · p.3 #3 · My ex is threatening to sue me for using her photos


Unfortunately the photographer doesn't/t get to pick whether his work/website is fine art, commercial or editorial. The usage of the material determines it classification. For example, only have limited number prints available and only showing them in galleries and publishing them in art/photography books would probably be deemed fine art by a judge.

The images be published in newspapers, text books, and news websites would more than likely qualify as editorial work.

However, images used on a website that promotes an individual photographers business, such as weddings, portriats, seniors, team sports etc. would more than likely be determined to be a commercial usage and subjunctive to the state's privacey laws. Judges are pretty astute on determine usage and it's not worth the bad press a trial and the publicity that would follow. How many more wedding clients are you likely to get once your found guilty of usage you do not have the rights to do? Even if you won, what is the preception future clients/brides would be left with?



Feb 13, 2017 at 04:51 PM
rw11
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p.3 #4 · p.3 #4 · My ex is threatening to sue me for using her photos


A really interesting twist is if you move to Norway, have the web site hosted in Sri Lanka, and she moves to India and views them in India.

real fun case in int'l law

really, what is the harm to you in dropping them?



Feb 13, 2017 at 08:11 PM
Littleguy
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p.3 #5 · p.3 #5 · My ex is threatening to sue me for using her photos


Not a lawyer here but just like to google stuff.

I believe your ex-wife doesn't have standing to ask for a removal as its not her in the photos - its her sister. So I would think it would be the sister who has to file a cease and desist request. Portfolio use usually doesn't apply to commerical use so there isn't usually a requirement for releases.

But the one problem I do see if you took those photos while you were married - I believe she has a claim on half of the business itself...unless you have already settled on who gets what from the marriage.

Again not a lawyer here - just a guy on google - so seek legal advise.

But personally, I would just remove them.



Feb 13, 2017 at 08:27 PM
Jeff Donald
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p.3 #6 · p.3 #6 · My ex is threatening to sue me for using her photos


The ex-wife has standing if there is a recognizable image of her in the select group of photos on the website. Did you read the interview with Carolyn Wright LLC that I linked to above? She addressed the issue of websites and commercial usage of images. More and more frequently websites are deemed as commercial usage of photos by judges.


Feb 14, 2017 at 03:32 AM
Littleguy
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p.3 #7 · p.3 #7 · My ex is threatening to sue me for using her photos


Sure if the ex-wife is in the images but then he could just remove those images and leave the rest up.

I did read that interview but Carolyn doesn't say anything about portfolio images on a website as commercial use...does having someone's image on a website mean that they endorse or promote your business? I would think there are more factors to consider before one could say you have used that person's image to advertise or promote your business.

Even if there was a finding of commercial usage - I don't believe that Texas has a statutory damage amount set. She would have to show actual damages done to her image as a result of the endorsement of the photographer's business or show the going market rate for a model to be hired for the same type of endorsement.

Of course, the lawyer's fees will probably cost you more than any damages she maybe able to win as a claim from having images of her at her sister's wedding being used as an endorsement for a photography business...it would be much easier to just find other images for your website.

Jeff Donald wrote:
The ex-wife has standing if there is a recognizable image of her in the select group of photos on the website. Did you read the interview with Carolyn Wright LLC that I linked to above? She addressed the issue of websites and commercial usage of images. More and more frequently websites are deemed as commercial usage of photos by judges.





Feb 14, 2017 at 09:43 PM
rw11
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p.3 #8 · p.3 #8 · My ex is threatening to sue me for using her photos


Standing just means you can file a suit w/o getting blown out the door by the court's laughter - one needs a lot more than that to win or survive to the point of a trial

but what is the cost to the PO of dropping the images?



Feb 14, 2017 at 11:56 PM
 

Search in Used Dept. 



mogud
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p.3 #9 · p.3 #9 · My ex is threatening to sue me for using her photos


Take the high road with your ex and take the photos off your website and put all this behind you. Sounds harsh but, time to move on.


Feb 20, 2017 at 04:56 PM
sk66
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p.3 #10 · p.3 #10 · My ex is threatening to sue me for using her photos


The question as to whether using an image on your website is "commercial" or not isn't cut and dry.

The key discriminator is advocacy... i.e. would it appear that the person in the image is advocating your work/business. If the image is of a group of people than "individual advocacy" is harder to associate.

In general, if the image is just one of many in a gallery/portfolio then that would constitute "display" which is your right. But the more dependent the use is on that particular image, the more likely it would be considered commercial (advertising). I.e. if you used it on business cards, or used it for website branding... which actually falls under state privacy laws and not copyright law as such.

The suggestion to consult a lawyer is not a bad one, but it is expensive, especially if you get a lawyer that specializes in this area. And in the end it's still just "an opinion." The only way you will ever know what "the answer" is is to go through the court system and receive a final ruling... even more expensive.

Irregardless, I would agree with all those who have said that you should just take them down.

Edited on Mar 19, 2017 at 03:30 PM · View previous versions



Mar 19, 2017 at 03:21 PM
sk66
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p.3 #11 · p.3 #11 · My ex is threatening to sue me for using her photos


formula4speed wrote:
OP needs to talk to a lawyer, but just as a thought exercise...

Does his ex-wife have any legal standing to tell him to take down photos of someone else?


No.
The only time that might be applicable would be if the photo is of a minor (or similarly dependent) individual for which they are responsible.

However, the OP specifically stated "her photos"... photos of the ex wife.



Mar 19, 2017 at 03:25 PM
elkhornsun
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p.3 #12 · p.3 #12 · My ex is threatening to sue me for using her photos


Your wife is interfering with your business which is hardly acceptable by any measure. If your contract with her sister states that you have the right to use the images to promote your business then you are on solid ground.

I would ignore your wife and hope you do better in your choices in the future. With people like her if you give them an inch they will take a mile and you may as well take a stand now and avoid being victimized by her in the future.



Mar 24, 2017 at 10:27 PM
mikeinctown
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p.3 #13 · p.3 #13 · My ex is threatening to sue me for using her photos


Wondering what the OP finally decided to do?

Seems that nobody asked the most important question... Was there any contract or was the OP just asked verbally and did the wedding? Then the second most important question, who asked to have them taken down. Was it the ex, or the sister?

If there was a contract I'd just leave them up and say go away. The ex and the sister aren't going to be going around getting you any jobs and it's clear that they want nothing to do with the OP in any way already. If there was no contract and the ex wanted them down then I might do one of two things. Either take them down and explain that even though you have no duty to, you are trying to take the high road as a professional. the other option would be to leave them up and let her know that she has no right to demand them be removed. if the sister wants them down and no contract, then just take them down and leave them on your tablet or non web portfolio.



Apr 25, 2017 at 01:14 PM
Pavel
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p.3 #14 · p.3 #14 · My ex is threatening to sue me for using her photos


My lord the internet. While I'm not an attorney I had two who advised me regularly when I was a photographer.

I don't know some aspects of the law, but I do know, because I've been told point blank a few things, by our attorneys (oh and we worked with minors mostly, as I was shooting for the dept of education. A few facts.

Fourth amendment has nothing whatsoever to do with personal privacy, in regards to personal privacy in a public setting. The Fourth is very narrow and deals with "you home as a castle", "search and seizure" in other words. The Federal laws, pertaining to personal privacy actually state that while in any public place, you have no rights of privacy. The only exception are photos that are obviously meant to slander or embarrass, but I've been told - good luck with that one.

Releases depend on use. Editorial, or educational - you simply don't need one.

Minors have NO extra rights under the law. Where do people come up with this stuff? As to invasion of privacy, the laws state: "opyrights and rights of privacy for people are different rights. When photographers take photos of people, they must be careful to not invade their privacy. This happens when someone enters a personís private domain in a manner that would be considered offensive to the average person" Beware those of you that are peeping-Tom journalists.

The rest I don't know about, but I also shot motorsports for a while and several times someone tried to shake me down to either pay them for appearing in a photo or to take them down. I aways let the venue take care of it and never had to do neither, as the tickets have fine print providing indemnity.

My guess is that if you had a contract with the bride or groom - you are fine. But that is simply an educated guess, not any certain fact.

As to what to do, I know that the more photographers get bullied by uninformed gorillas, the more we seem to slide backwards with our rights. Me personally I'd tell her to pay up for the exclusive rights of photos that she is in, or stuff it. Cease and desists are a cheap dime-a-dozzen form of intimidation. Lawyers write them without standing all the time.

As to whether advertising your services is a commercial pursuit ipso facto or not, I don't know - we didn't deal with that. But way back when I shot fashion, I was assured that anyone at the show had no claims.

So, in a public venue - one has no right to expectations of privacy. Now if you post them to some voyeurweb - that's not a good idea, best I understand.

Good luck.






Apr 30, 2017 at 01:40 AM
Mikehit
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p.3 #15 · p.3 #15 · My ex is threatening to sue me for using her photos


One consideration is 'what if I annoy my ex wife'?
If you have pretensions to do paid work, then do you really want her taping on social media that you are a photographer who takes photos and publicises them against your wishes?
One other issue is if it were her sister's wedding then surely it would be the sister who would be the focus of any advertising attempt, and your wife would be there as an incidental - that muddies the waters even more.

If the portfolio is simply a personal website showing your portfolio as many thousands of people do...who cares? Maybe you want to keep them in there just to annoy her. Or remove any images that have her in them.


Both Carolyn Wright's article and Dan Heller's were done in 2011 - the problem is that law adapts and evolves to close seeming grey areas. Even their advice may be out of date enough to fall foul of any complaint. As has been said, the only way either of you will win is if it goes to court - is she really that desperate?



May 11, 2017 at 04:10 PM
glort
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p.3 #16 · p.3 #16 · My ex is threatening to sue me for using her photos



Geez, Op hasn't posted since January but 4 Months and about 45 Posts later the topic is still being discussed and advise given.

Are things that slow round here or does the thing of Ex-wives just really strike a nerve with people here?

I'd say by now the OP has made his decision and moved on.



May 12, 2017 at 01:36 AM
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