Hello, I have an issue and would like to hear what others make of the problem. I am a semi pro photographer, and shoot mainly on the side have been doing it about 12 years. Recently I took photographs at a church event, where I am a member of the church for them . All of the photos where of minors but parents were present and everyone knows who I am . Well it has now come to my attention that one of the photos has been used in an advertising publication with no releases being signed. Do I have any recourse. The photo was taken from me by the church webmaster when I gave them via CD for uploading to the church website.
What contractual term(s) was(were) agreed upon prior to the photo session? Who put the photo in question out for advertisement purposes? What publication was it?
You're looking at a civil lawsuit to receive financial proceeds due to the image if that is what you're after, even if a contract was in place prior to the shoot. Let's hope that everyone involved were extremely understanding and are able to divide up all tangible and intangible financial proceeds equitably. Given the nature of man and what you're called to follow, I would recommend you first approach the parties by yourself, then bring in other parties for resolution.
spooncivic01 wrote:
Hello, I have an issue and would like to hear what others make of the problem. I am a semi pro photographer, and shoot mainly on the side have been doing it about 12 years.
. . .
Recently I took photographs at a church event, where I am a member of the church for them . All of the photos where of minors but parents were present and everyone knows who I am . Well it has now come to my attention that one of the photos has been used in an advertising publication with no releases being signed. Do I have any recourse. The photo was taken from me by the church webmaster when I gave them via CD for uploading to the church website. ...Show more →
With all due respect, this appears to be where the "semi" part of "semi-pro" comes into play. You don't just "give" them a CD - they sign a contract that stipulates exactly what they can and cannot do with the images, and certainly if the intent is publication (and keep in mind that web-publishing is still "publishing" in the legal sense), releases are a VERY good idea for any published images that do not fall into the realm of photojournalism. And this is doubly true when minors are concerned!
Anyway, you still have copyright to all your images so you can tell them to take those images down until appropriate releases are signed, and stop distributing any other material.
Now I should say at this point that church groups, school groups, kids' sports teams and all kinds of other organizations routinely print-publish and web-publish their stuff without any regard to whether anyone has signed a release or whether minors are involved, and usually nothing nasty happens. But personally I'm very leery of such practices and I would never allow it with any image I took, and keeping in mind that the photographer automatically owns copyright to his images, we all have the power to control this.
EltonTeng wrote:
You're looking at a civil lawsuit to receive financial proceeds due to the image if that is what you're after, even if a contract was in place prior to the shoot. Let's hope that everyone involved were extremely understanding and are able to divide up all tangible and intangible financial proceeds equitably. Given the nature of man and what you're called to follow, I would recommend you first approach the parties by yourself, then bring in other parties for resolution.
Oh my gosh, what are you talking about? "Divide up all the tangible and intangible financial proceeds equitably"? On what grounds? No release was signed.... he's lucky if he will get an injunction for non-statutory infringement of copyright...
What kind of advertising? For the church or for something entirely unconnected? He has grounds to ask for them to stop using the image for copyright reasons but has no standing at all in the issue of it being used for advertising w/o a "release." That's an issue for the people in the image. I'm sure he could take the church or at least the employee to task for distributing the image w/o permission but whether one would really want to do that is an individual issue.
I'd also suggest it's the unusual situation where an image or images are provided to organizations like churches with rigid restrictions on uses, at least by the church so the nature of the advertising use would really be a driver in what kind of action one might want to take. Also, it might be possible that some kind of permission was received from the individual(s) in the image.
mdude85 wrote:
Oh my gosh, what are you talking about? "Divide up all the tangible and intangible financial proceeds equitably"? On what grounds? No release was signed.... he's lucky if he will get an injunction for non-statutory infringement of copyright...
Craig Gillette wrote:
What kind of advertising? For the church or for something entirely unconnected? He has grounds to ask for them to stop using the image for copyright reasons but has no standing at all in the issue of it being used for advertising w/o a "release." That's an issue for the people in the image. I'm sure he could take the church or at least the employee to task for distributing the image w/o permission but whether one would really want to do that is an individual issue.
I'd also suggest it's the unusual situation where an image or images are provided to organizations like churches with rigid restrictions on uses, at least by the church so the nature of the advertising use would really be a driver in what kind of action one might want to take. Also, it might be possible that some kind of permission was received from the individual(s) in the image. ...Show more →
Hm, true, I assumed OP was referring to a usage contract when he said "release" as the two words are often mixed up ... The model release for the photos is another beast entirely! :-/
Craig Gillette wrote:
He has grounds to ask for them to stop using the image for copyright reasons but has no standing at all in the issue of it being used for advertising w/o a "release."
I agree, but my point was that if he made sure to get a release for any recognizable face in any photo he lets out of his hands, he's better protected if anyone sues. I don't let a photo out of my hands, nor do I put one in my public galleries, unless I have model (or property) releases. My exception to this is work that is clearly PJ in nature.
I'd also suggest it's the unusual situation where an image or images are provided to organizations like churches with rigid restrictions on uses, at least by the church so the nature of the advertising use would really be a driver in what kind of action one might want to take. Also, it might be possible that some kind of permission was received from the individual(s) in the image.
I agree it's unusual - as I said above, lots of community, civic, and religious organizations are very loosey-goosey about these things. I may be unusually anal about these things, but we live in a very litiginous society and I would rather cross all the t's and dot all the i's.
Is a model release necessary here? Being in a church is not a reasonable expectation of privacy so I don't think a release form is necessary (especially not to be signed by every person who may or may not appear in the photo). I was under the impression that the church representative doing the hiring provides so-named "inherency" of release of people within the church (the same might be said for a coach and his players at an athletic game (18 y.o.+) , a park ranger, etc).
There are two problems here. One is a copyright problem. The image has been copied, transferred and displayed (used in the advertising) w/o permission of the copyright owner. The copyright owner has exclusive rights to do or authorize those things. While there are those who willl assert that this is entirely the fault of the transgressor and the owner has no need/requirement to inform a person of restrictions, this is the kind of thing which results. An ignorant or "innocent," party receiving the images and being unfamiliar with copyright law procedes, intentionally or not, to violate the owners "rights" and you have to back into some kind of resolution.
The other position, fairly common, is that many people aren't familiar with the copyright laws and should be told clearly in transmittal documents (or contracts or even verbally) what rights the copyright owner has licensed, has retained and what the recipient can do with the images, etc.
In this situation, there was no formal/written discussion of uses and there was transfer and undesired use. That's an issue that the OP has to resolve with the church and/or the individuals who passed the images on and with the advertising party.
The use of the images in advertising presents the possibility that the individual's in the images have had their rights of publicity infringed. While it may be codified in with privacy and misappropriation or separately covered under "publicity," or even a matter of "common law," in a given location (or not in some countries), the individual has certain rights to control the use of their image and persona in commercial applications - which is typically that of endorsing or promoting an product or services and not the simple sale of the picture.
This is the individual's right and can not be assumed to be waived nor can another person waive that right. Coaches can't waive that right for players, clerics can't waive that right for members of the congregation, B&Gs can't waive that right for other members of the wedding party or guests. A "release," (signed by the individual or a legally authoprized representative) in a contract, a separate document, or in participation/registration documents can be used to document that the individual has given permission for their image to be used in ways that they have the right to control.
This is a separate matter from the idea that there are places where the individual has no reasonable expectation of privacy and that they can't expect not to have their picture taken. Because this is the individual's right, it's possibly a parallel problem to the copyright issue but the photographer has no standing to dispute that aspect of the use. It's one of the reasons having copyright ownership doesn't give absolute rights to control all potential uses of an image. their may be opthers with rights involved.
mdude85 wrote:
Is a model release necessary here? Being in a church is not a reasonable expectation of privacy so I don't think a release form is necessary
A model release has little to do with expectations of privacy; is has to do with controlling the use of a likeness (or of some corporate property or logo appearing in an image). Most things that require property releases don't necessarily have an expectation of privacy either. Basically, people have a right to control how their image is used, and not to have it used for commercial or promotional purposes, if they don't authorize such use.
plnelson wrote:
A model release has little to do with expectations of privacy; is has to do with controlling the use of a likeness (or of some corporate property or logo appearing in an image). Most things that require property releases don't necessarily have an expectation of privacy either. Basically, people have a right to control how their image is used, and not to have it used for commercial or promotional purposes, if they don't authorize such use.
Yes, but a model release is almost never required to photograph subjects in a public setting (unless, obviously, you are doing a photoshoot of a model and the setting is a public place). E.g., photographing fans at a sports game, participants in a parade, beachgoers, etc, does not require a model release -- or, at the most very stringent, requires a simple verbal affirmative. It's hard to say if a church classifies as a public place.
In advertising it is a different story, usually it is nice or required to have a model release if the model is the main subject of the photo. I think someone already mentioned in this thread the need to figure out whether or not these photos will be used for advertising.
I thank everyone for there responses and information now for my last question. I have been in touch with the person that used the photo and found out that he also used another photo of mine, so there are 2 photos that are being used. He has offered to pay for the photos, but what would the going rate be for 2 photos being used for spot use full color on a brochure the brochure was printed 25000 times.
It's good that you found out the extent of the infringement first! Don't just accept payment from this person and hope that they will not continue to exploit your photographs without compensating you. It would probably be good idea to get something in writing stating the specific uses you are licensing the photos for, and that additional uses require additional compensation, even if this person hasn't disclosed the full nature of the infringement to you at this time.
I know you identify as a semi-pro, but that doesn't mean you can't register your images with the copyright office. It gives you much more legal ground for being compensated when an infringement occurs (not if, when). Consider yourself lucky that the infringer is willing to pay you, because if they chose not to, you have no recourse whatsoever without a copyright registration -- you couldn't even force them take the images out of circulation.
