Dan Howell wrote:

Look up: exceptions to copyright. they are numerous.

It's more than laughable that you think that this issue can be emphatically summarized in a statement like yours above. Or that the sweeping generalization that I responded to are as simple as they appear on their face.

The ONLY exception is if a signed agreement is made.  BY LAW (from the moment of creation) the photographer is copyright holder. 

Your previous replies indicate this flies over your head.  I wish you luck in your career.

Dan Howell wrote:

That is so not true, but more importantly, it's really not what this discussion is about. I have yet to be convinced that collecting images that a model actually appears in is considered a commercial usage. If what you contend is true, merely folding a print or a tearsheet to hide a logo would be considered illegal. Prove this or stop responding to this thread. Similarly, displaying a model's tearsheets on a personal or agency site is what you consider an actionable copyright violation. Show me a case where a client has sued the model to prevent display of an image she is actually in as a part of his or her portfolio.

Where did you get the impression that copyright only applies to commercial usage?

Dan Howell wrote:

Look up: exceptions to copyright. they are numerous.

It's more than laughable that you think that this issue can be emphatically summarized in a statement like yours above. Or that the sweeping generalization that I responded to are as simple as they appear on their face.

Maybe you should read those exceptions. A model putting something in her portfolio isn't listed.

Paul in Barrie wrote:
I really don't like Dan's Tone. Asking for quotes and proof is just Bully tactics. Copyright has been covered may times in the MM forums. Feel free to Bully me back Dan if that pleases you.

Many have said that this is an issue between the Model and the company that hired the Photographer/Model and the photographer should just stay out of it. This is not necessarily true. If the company hired the model and the photographer separately and then brought them together for the shoot then obviously the company can only blame themselves for the actions of the model. 
However, many times the model is suggested by the photographer. In this case, while the photographer may be off the hook legally, if the proper paperwork/release was obtained, he/she should definitely still be concerned as the models actions reflect poorly on the photographer as  the one who chose the model.  I know if I was the company involved I would definitely think twice about using this photographer.

Please understand that I am in no way being critical of the photographer, he did nothing wrong and has been let down by the model. I am simply highlighting that if we recommend a model then we have a moral duty to explain the does and don'ts to the model and get a signature from the model (handled by the release).   I work in several positions where I have to place complex documents in front of people for signing. It is not enough to get a signature. It is the duty of the person presenting the document ie. YOU,  to verbally ensure that the model UNDERSTANDS the document and the possible ramifications of ignoring the content.

Hope this helps - Paul

Not only that- but he pm's you to offer 'advice.'  Talk about an ego. 

I don't agree the company can blame themselves.  People today have GOT to have the common sense that photos aren't to by messed with, ESPECIALLY having a logo removed and then crediting a competing brand!   This model needs a serious reality check.  I do agree that whoever had her sign the papers should have also verbally made sure she understands what the rules are.  That said- many still break them

j3_photo wrote:
That said- many still break them

Unfortunately true.

I have a client that insists that all photographs taken for them ONLY appear in the places they authorize for the usage period. They don't appear in my portfolio or on my Facebook page or website and they don't appear on the model's.

And that is specifically explained to each model before they shoot. And yet, I still end up sending take down notices to Facebook and elsewhere on some of these models.

Vintagevista wrote:

From the OP

"Recently someone who works at an agency shared with me that a model I shot for a clothing company client during a paid shoot had removed the client's logo & trademark from the client's photo"

It's pretty clear that this is between the client and the model.  The photographer has no dog in this fight.

That would depend on whether the photographer assigned copyright to the client, or just gave the client usage rights.

As far as I know, the responsibility to defend a copyright lies with the copyright holder.

"As to independent contractors, a “work for hire” is defined in the Copyright Act (17 U.S.C. § 101) as “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.” 

"These are the only types of works created by independent contractors that can constitute “works for hire.”  Merely calling something a “work for hire” in an agreement does not make it so, unless it falls within these specified categories of works.  In addition, to constitute a “work for hire” the parties must have an express written agreement to this effect, signed by both parties. "

Given the actual text of the Federal law, it would seem that the client needed to have a contract specifying who retained copyright rights and usage rights, and these contracts would have needed to have been signed by both the photographer and the model.

Al Lock Photography wrote:
Berne Convention
US Copyright Law

The creator of a photograph has COMPLETE control over where that photograph can be displayed. etc. with the exception of specifically stated exceptions within the statute. Model portfolio use is not one of the specified exceptions.

How the model industry operates has very little to do with the law. Instead it operates on assumptions that no one will call them on their violations of the law.

Under US law the copyright owner does not get "COMPLETE" control.   What he does get is the right to place certain limits on the reproduction and/or commercial use of an image. Even here the control is not complete as there are "fair use" exceptions that allow copies to be made without permission.

What this means is that you generally need the copyright holder's permission to use an image on a web site or to make prints.   If the model has a legal copy of the image (i.e. the photographer gave her a print, or she tore one out of a magazine), she can generally place that copy in her printed portfolio book, or hang it on her wall.

Al Lock Photography wrote:
Actually, without the copyright holder's permission, a model doesn't have any right at all to display an image just because she appears in it.

No.  Typically she has the right to display the image, but she doesn't have the right to make a print to display, nor to post the image online.

If she obtains a legal print of the image, she is free to hang it on her wall or put it in her printed portfolio book.

Photos by Stan wrote:
As the OP is listed in California ....
and I see no one else from there replying ...

I thought that the client in fact is considered an 'employer'
and the photographer is considered the "employee"
under some California state law ????

Does that make the contracts signed in that state a work for hire .. thereby 'giving' ownership to the client ( employer )


NOT a lawyer and NOT going to look at a bunch of legal junk found online that could be written by anybody

As a general rule of thumb, in the US you are an "employee" of the entity that is giving you a W-2 form (i.e. the company classifies you as an employee and takes taxes/social security/medicare etc. out of your paycheck).

If the client hires your photography business, you are probably not an employee for copyright purposes.

The above is a general overview and assumes that there is not a specific "work for hire" document for the situation.

j3_photo wrote:

The ONLY exception is if a signed agreement is made.  BY LAW (from the moment of creation) the photographer is copyright holder. 

Your previous replies indicate this flies over your head.  I wish you luck in your career.

While this is generally correct, it is not exactly what the law states. 

The natural copyright holder is the "author" of the photograph.  This would typically be the photographer who presses the shutter button.  However pressing the shutter button is not the magic event that makes you the copyright holder.

Imaging a situation where a non-photographer is wheelchair bound.   From his wheelchair he directs the  photographer where to place the gear.  He directs the photographer on what settings to use.  He directs the models how to pose.  He tells the photographer when to press the shutter button.

In this case, the person in the wheelchair would be the natural copyright holder of the image, even though he never touched the camera.  The key is that the image is his artistic creation.


The situation is similar to an author of a book.  Typically, the author is the one who types up the book, but it is not the typing that makes him the author.  Stephen King is still the author of the book whether he types it up himself, or dictates it to an assistant to type.

The bottom line is that the photographer who presses the shutter button is almost always the natural copyright holder.  However there are exceptions where the creative author is someone else, and they are the natural copyright holder.

Michael Fryd wrote:

No.  Typically she has the right to display the image, but she doesn't have the right to make a print to display, nor to post the image online.

If she obtains a legal print of the image, she is free to hang it on her wall or put it in her printed portfolio book.

You seem to not get that her obtaining a legal copy means getting a copy that the photographer has authorized. In other words, the copyright holder DOES have complete control except for very specific exceptions, and a model displaying an item in her portfolio is NOT one of those exceptions.

Al Lock Photography wrote:

You seem to not get that her obtaining a legal copy means getting a copy that the photographer has authorized. In other words, the copyright holder DOES have complete control except for very specific exceptions, and a model displaying an item in her portfolio is NOT one of those exceptions.

I said she generally does not need permission to "display" the image. 


As the copyright holder, the photographer's control is primarily centered around the making of copies.  He has little control over how those copies are used or displayed.   "Copying" and "Displaying" are different activities.


The confusion arises as she first needs a legal copy of the image in order to display it, and the photographer's permission is needed in order to create that legal copy.  Once the copy is created, the photographer has little, if any, control.


Let's look at a traditional printed "portfolio".  This is a physical book the model carries to castings.

The model needs to obtain a legal print, but once that print is in her book, the photographer has little say in how she displays that book.   The model can't simply print an image from the web, as that is making a copy, and requires permission.  If the photographer gives her a print, or she tears it out of a magazine, she does not need permission.   

The key point is that she only needs permission, if she will be making a copy for the book.


There are similar issues with online "portfolios" (web sites that display samples of the model's work).

If the model needs to make a copy of the image, she needs the photographer's permission.  If the model can build the web site without making an unauthorized copy, then she may not need permission.

Consider a situation where the image has already been legally uploaded to a web site by someone else.  Perhaps the photographer has uploaded it to his portfolio, or the client has uploaded it to their web site.

Instead of uploading an unauthorized copy, the model could merely place on her web site a reference to the legally uploaded copy.   As the model is not making new copies of the image, this is likely not a copyright violation.


For instance, here's a copyrighted image of Miss USA:


Instead of making an illegal copy of the image, the web page you are currently reading merely includes a reference to the authorized image on the Miss USA web site.


If the model does something similar for her images, she can build a portfolio web site, without having to upload any images. 


In terms of Instagram, she generally needs the photographer's permission.   This is not because she is using the image in an online portfolio, but rather a result of Instagram's policy that requires the poster to upload a copy of the image.  The key here is that Instagram requires a copy, not that the image is being used in a "portfolio"





In summary, the copyright holder has little control over whether or not the model can use an image in her portfolio.  He does have control over the copying and posting of the image.   If the model has a legal physical copy, she generally can use it in her physical portfolio.  If the model is referencing a legally posted online copy, she may be able to reference it from her online portfolio page.

The copyright holder's control is rather blunt.  He can prohibit physical portfolio use by prohibiting any physical copies from being made.  He can prohibit online portfolio use, by prohibiting any online copies.   Once he allows any copy to be made, he has little control over how that copy is used.


Disclaimer: the above is a generalization.  I am not an attorney.  Speak to an attorney for reliable legal advice.

Michael Fryd wrote:
I said she generally does not need permission to "display" the image.

It's fairly clear that we have had several disagreements in the past, but this is NOT one of them. This (and the rest of what you wrote) is the point I was making in my responses in this thread which were met with ignorance and hostility. Two participants in particular REALLY need to read this information before they respond.

Michael Fryd wrote:
Instead of uploading an unauthorized copy, the model could merely place on her web site a reference to the legally uploaded copy.   As the model is not making new copies of the image, this is likely not a copyright violation.


For instance, here's a copyrighted image of Miss USA:


Instead of making an illegal copy of the image, the web page you are currently reading merely includes a reference to the authorized image on the Miss USA web site.


If the model does something similar for her images, she can build a portfolio web site, without having to upload any images.

Many websites and ISPs do not allow "hot-linking" (what you did). It's considered theft of services.

Al Lock Photography wrote:

Many websites and ISPs do not allow "hot-linking" (what you did). It's considered theft of services.

I don't think it is settled law as to whether or not "hot linking" is a copyright violation.   Of course web sites are free to program their servers not to serve up hot linked images, but many do not.

Michael Fryd wrote:
I said she generally does not need permission to "display" the image.

Dan Howell wrote:
It's fairly clear that we have had several disagreements in the past, but this is NOT one of them. This (and the rest of what you wrote) is the point I was making in my responses in this thread which were met with ignorance and hostility. Two participants in particular REALLY need to read this information before they respond.

Nobody is arguing about that.  The issues is the model REMOVING a watermark and putting ANOTHER company on there. 

Imagine you/your company make the best pizza and the model puts a competitors (crap tasting pizza) logo on your image. 

Some of you really need to not pm people and get your comprehension levels in check.

j3_photo wrote:

Michael Fryd wrote:
I said she generally does not need permission to "display" the image.

Nobody is arguing about that.  The issues is the model REMOVING a watermark and putting ANOTHER company on there. 

Imagine you/your company make the best pizza and the model puts a competitors (crap tasting pizza) logo on your image. 

Some of you really need to not pm people and get your comprehension levels in check.

That issue was answered long ago.  The model needs the permission of the copyright holder in order to post the image, and she also needs permission of the copyright holder in order to alter the image.

Copyright law is very clear on both these points.

It turns some people were not happy with this answer.   There has been some misinformation as to what control the a copyright owner actually has.  The copyright owner's rights are not "complete", but they are significant.    The copyright owner can generally control the reproduction of an image (including posting), but has little control over how legally produced copies can be used.   Contracts can be used to maintain control over the physical copies, but that is outside the realm of this discussion.




The way I read the original post, she removed trademarks from the image, and then used the image in the context of a competing brand.  She did not add competing trademarks to the image.  Perhaps I have misinterpreted the post.

It's as if she took an image of a Pizza, removed the Pizza Hut logo, and used it in a post about her previous night's dinner from Domino's.  Such a usage is not a trademark violation, as the image no longer contains any trademarks.  If the image were an advertisement, then it would be an issue as the pictured product was not the product being sold.   Again we are back to the copyright issue.

j3_photo wrote:
Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement. The pertinent part of the statute is included below:

Section 1202. Integrity of copyright management information . . .

(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION.

No person shall, without the authority of the copyright owner or the law:
(1) intentionally remove or alter any copyright management information . . .
(3) distribute . . . copies of works . . . knowing that copyright management information has been removed or altered without authority of the copyright owner . . . knowing . . . that it will . . . conceal an infringement of any right under this title.

(c) DEFINITION. . . . "[C]opyright management information" means any of the following information conveyed in connection with copies . . . of a work . . . or displays of a work, including in digital form . . . :
(2) The name of, and other identifying information about, the author of a work.
(3) The name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright. . . .

Doesn't need to be an advertisement.  Any publishing (Instagram, etc) counts.

If it was the copyright holders logo and trademark, then this section would apply.

I read the original post as the model had removed the client's logo and trademark.  If she removed a logo/trademark belonging to someone other that the copyright holder, this section of the law would not apply.   It's possible I misinterpreted the OP.

Michael Fryd wrote:
If it was the copyright holders logo and trademark, then this section would apply.

I read the original post as the model had removed the client's logo and trademark.  If she removed a logo/trademark belonging to someone other that the copyright holder, this section of the law would not apply.   It's possible I misinterpreted the OP.

The description of the act was incomplete. It is possible that the model merely posted a published photo to her Instagram and the identifying information was cut out due to format change specific to Instagram. The OP was vague about whether she was discussing other brands in text or had actually modified the photo. We don't know the contents or context. Yet many here are stomping their boots about incomplete information and asserting that it is an absolute violation.

Seems that a few here would argue that any display of a published photo by a model is a copyright infringement. I guess then each of the photos displayed here are infringements:
http://www.wilhelmina.com/portfolio.asp … d=2&spec=0

Dan Howell wrote:
...

Seems that a few here would argue that any display of a published photo by a model is a copyright infringement. I guess then each of the photos displayed here are infringements:
http://www.wilhelmina.com/portfolio.asp … d=2&spec=0

I believe that the claim was display of a copyrighted image requires permission of the copyright holder.   It is not unusual for photographers to allow models the right to use an image in the model's online portfolio.

As a courtesy, many photographers will allow agencies to use images for model portfolios.  In return, many agencies will refer business to the photographers.

As long as the copyright holder allows the display, it is not a violation of copyright.

Looknsee Photography wrote:

Vintagevista wrote:
Never happened to me - not particularly worried about it.

Why should you care?  Not your copyright - not your images.  It's between the copyright owner/client and the model.

It's like a car mechanic getting all flailing upset about a car they fixed - getting stolen a few months later.

Not your circus - not your monkeys - not your first time on this same ride.

You might ponder on that last bit for a while.
Just because the photographer had a paying client, that does not automatically make the client the copyright owner.

Looknsee Photography wrote:
I disagree -- the photographer's professional status relies in large part on his reputation, and if he gains the reputation of having (and not caring if) his images misappropriated & misused by his models, he might find himself out of work, too.

#1, also if the photographer cast the model this would reflect badly on the photographer.  Clients have stopped working with photographers for less than this.

Paul in Barrie wrote:
I really don't like Dan's Tone. Asking for quotes and proof is just Bully tactics. Copyright has been covered may times in the MM forums. Feel free to Bully me back Dan if that pleases you.

Many have said that this is an issue between the Model and the company that hired the Photographer/Model and the photographer should just stay out of it. This is not necessarily true. If the company hired the model and the photographer separately and then brought them together for the shoot then obviously the company can only blame themselves for the actions of the model. 
However, many times the model is suggested by the photographer. In this case, while the photographer may be off the hook legally, if the proper paperwork/release was obtained, he/she should definitely still be concerned as the models actions reflect poorly on the photographer as  the one who chose the model.  I know if I was the company involved I would definitely think twice about using this photographer.

Please understand that I am in no way being critical of the photographer, he did nothing wrong and has been let down by the model. I am simply highlighting that if we recommend a model then we have a moral duty to explain the does and don'ts to the model and get a signature from the model (handled by the release).   I work in several positions where I have to place complex documents in front of people for signing. It is not enough to get a signature. It is the duty of the person presenting the document ie. YOU,  to verbally ensure that the model UNDERSTANDS the document and the possible ramifications of ignoring the content.

Hope this helps - Paul

+1
Finally a voice of reason...

Michael Fryd wrote:
I don't think it is settled law as to whether or not "hot linking" is a copyright violation.   Of course web sites are free to program their servers not to serve up hot linked images, but many do not.

I didn't say it was a copyright violation. I said it is considered theft of services.

mophotoart wrote:
if any picture on the internet in any form show up in foreign publication or use, no lawyer is going to deal with it...

Really?

I beg to differ, having had a lawyer deal with exactly that situation on behalf of 5 photographers.

Michael Fryd wrote:

I believe that the claim was display of a copyrighted image requires permission of the copyright holder.   It is not unusual for photographers to allow models the right to use an image in the model's online portfolio.

As a courtesy, many photographers will allow agencies to use images for model portfolios.  In return, many agencies will refer business to the photographers.

As long as the copyright holder allows the display, it is not a violation of copyright.

Bingo.

Al Lock Photography wrote:

I didn't say it was a copyright violation. I said it is considered theft of services.

Considered theft of services by whom? The website owner or the law?

Clearly, there are situations where it is legal to hotlink images.  Do a google search and click on the "images" link.   You will get a page full of hotlinked images.

Jon Winkleman Photo wrote:
Removing a trademark is illegal PERIOD.

Are you talking about removing the photographer's trademark, or a product trademark that appears in the image?

Removing the photographer's trademark is a copyright issue.

I don't believe there is an special prohibition on removing a trademark from a pictured product. 

Trademark law is supposed to prevent a competitor from using your trademark to pass his products off as yours.   It doesn't require that products be identified, only that if a trademark is used, it must be correct.

If the trademark has been removed, there is no mis-identification, hence no trademark violation.

Thus, if I have photo of a Brand-X gas station, and I remove all the trademarks, it is not a trademark violation to use it in an advertisement for a competing brand of gas.

Michael Fryd wrote:
Thus, if I have photo of a Brand-X gas station, and I remove all the trademarks, it is not a trademark violation to use it in an advertisement for a competing brand of gas.

It is likely a violation of other laws. Why property releases are required for many uses.

Doing what you just described would be really, really stupid.

Michael Fryd wrote:

Considered theft of services by whom? The website owner or the law?

Clearly, there are situations where it is legal to hotlink images.  Do a google search and click on the "images" link.   You will get a page full of hotlinked images.

There are a few hundred countries worldwide and 50 states in the USA as well as various jurisdictions within all those legal entities. At least in some jurisdictions, hot-linking is a violation of the law. It has been ruled theft of services.

Just because people do it doesn't make it legal everywhere.

Al Lock Photography wrote:

There are a few hundred countries worldwide and 50 states in the USA as well as various jurisdictions within all those legal entities. At least in some jurisdictions, hot-linking is a violation of the law. It has been ruled theft of services.

Just because people do it doesn't make it legal everywhere.

Are you suggesting that Google, Yahoo, Bing, and other search engines are breaking the law hot linking images in their search results?

How is this different from a model having a page labeled "search for my images on the web", which is a collection of hot linked images?

Al Lock Photography wrote:

It is likely a violation of other laws. Why property releases are required for many uses.

Doing what you just described would be really, really stupid.

What would be an example of a situation where a property release is required?

In the US, physical objects don't have rights of privacy and rights of publicity, therefore there is generally no legal requirement for a property release.

A property release does have some advantages.   It might include a clause documenting that you have permission to be on private property to take photos.  Furthermore it may make it easy to quiet an angry property owner who is under the mistaken impression that his property does have rights.


Note: there is a difference between a "property release" (you may use a picture of my houseplant) vs. a trademark release (my trademark may appear in your product advertisement).