nyk fury wrote:
i only care if models show up. what they do with the materials after, i don't give a hoot.

This, ask for a shirt like the other poster said and call it even.

Blue Box Photography wrote:
I worked with a well-known model on a TF basis earlier this year. She signed a release that basically stipulated that while I maintain the copyright to the images, she had the right to use the photos for self-promotion. Now I see that she is selling T-shirts on her website with my images of her on them.

... What's typical in this situation and how does one proceed?

What I am sure of is that she did a  (potentially,) dirty move in NOT communicating with you in advance to say she was going to do this or ask your opinion considering it is your image. Although from what I read above explained by GPS her doing so does sound like her own form of self promotion, (likely the cost she is getting is just enough to cover the shirts and printing, sort of like she would have to do if her self promotion was to print and distribute business cards,)

If she was using the image on business cards instead of t-shirts how would you feel about it? Neutral? I consider the t-shirts like business cards in this situation.

I was actually planning to have some cards made up and also plan to ask the photographer of the image for his opinion before I do so too and your thread timing is good for me, (I might ask about some t-shirts or posters, hmmm?)
Jen

Blue Box Photography wrote:
I worked with a well-known model on a TF basis earlier this year. She signed a release that basically stipulated that while I maintain the copyright to the images, she had the right to use the photos for self-promotion. Now I see that she is selling T-shirts on her website with my images of her on them.

I've never encountered this before. If I didn't specifically grant her the right to sell products that included my images, what she's doing is illegal, right? I'm not against her selling the merchandise in principle, but I would need to be compensated. What's typical in this situation and how does one proceed?

Out of curiosity what sorts of uses did you intend to include in your usage license, and what sorts of uses did you want to exclude?  Do you define "self-promotion" in your usage license?

How would you feel about the following uses?

- She sends out free signed prints when a fan asks
- She sends out free signed prints as a thank you when someone signs up for her web site (does it matter if the website signup requires payment?)
- She gives out free T-Shirts with her picture to fans
- She is performing in an establishment that charges admission, and she gives out t-shirts with her photo.  Does it matter if she is being paid to appear or if her payment is based on ticket sales?
-She sells t-shirts with the photo on her personal web site, but only covers enough to break even
- She sells the t-shirts on her web site but makes a nice profit
- She sells the t-shirts on someone else's web site (perhaps Amazon.com)

To me, the plain language meaning of "self promotion" is any activity that is initiated by the model to promote her career.  Selling photos of the model (whether it be prints, posters, or t-shirts) seems to me to fall into this category.

Blue Box Photography wrote:
Thanks GPS Studio Services for your insightful comments. I had been worried about my old hand-crafted model release left-over from when I first started photographing models because of the vagaries it presents in terms of the usage of the images. (My photographer friends have advocated a separate usage agreement which I have yet to implement.) Maybe this is a wake-up call.

Does selling an image on merchandise fall under "self-promotion?" That's what I need to figure out, I guess. And is she going to get rich off of this shot? Probably not. But she does have nearly 150K subscribers to her youtube channel and tens of thousands of fans on facebook and instagram. She's going to sell some stuff and it would really burn me if I didn't get compensated in some way because my model release was crap.

With 150K subscribers and tens of thousands of fans, credit might well be the best compensation you could ever ask for!

All IMHO as always, of course.

Blue Box Photography wrote:
Okay - good points here. Thanks for everyone's input. Once again, I am not considering any legal action here because, a) it doesn't make sense economically, and b) I'm not interested in burning a bridge with her nor establishing myself as a litigious photographer. But I still think what she did was wrong, and I will contact her about it.

For clarity, the release that she signed indicates that she grants me the right to use her image and in exchange:

"The Photographer grants to the Model and his or her assigns or licensees, the right to use the Photographs in non-commercial advertisements in any medium (including composite or modified representations) for purposes of advertising and promotion of Model's public image and/or career."

I believe that selling T-shirts is a commercial activity and therefore violates the agreement. Although I am not an attorney nor do I expect any of y'all to provide anything other than your opinions.

Spot on...ask her what she'd do/how she'd feel if the situation were reversed?

Blue Box Photography wrote:
For clarity, the release that she signed indicates that she grants me the right to use her image and in exchange:

"The Photographer grants to the Model and his or her assigns or licensees, the right to use the Photographs in non-commercial advertisements in any medium (including composite or modified representations) for purposes of advertising and promotion of Model's public image and/or career."

I believe that selling T-shirts is a commercial activity and therefore violates the agreement. Although I am not an attorney nor do I expect any of y'all to provide anything other than your opinions.

This is a good example of well-intended text that is probably legally ambiguous.  There is no such thing as "non-commercial advertisements."  The word "commercial" is not generally included in the statutes.  The legal terminology typically used is "advertising or trade."

By its definition, an advertisement is always commercial.  If the model is advertising her services as a model, that is commercial.  What you were trying to do is to prohibit her from re-licensing the image in ways that are directly monetized.  As an example, you wouldn't want her to license the image for an ad for bicycles.  The problem, that isn't what your license says.

It is unlikely that she is making much, if any money off the t-shirts.  There are costs to produce them.  Her argument would be that she is selling the t-shirts, not to make a profit but to get her image out there as self-promotion.  Based on the very ambiguous language of your license, a judge would probably buy the argument.

Your license is a good example why you should never write a legal document yourself.  I see a lot of issues with the language you used.  The biggest of which is that it is so ambiguous that the model could likely do almost anything she wanted.

Next time use a standard release and a standard "grant of license."  Don't draft them yourself.  If you need modifications, pay a lawyer a few dollars and do it right.

All that having been said, the best solution remains to speak with the model in a non-confrontational manner.  The next thing is to learn from this, use a better license next time, and head the next one off before it happens.

Blue Box Photography wrote:
...

For clarity, the release that she signed indicates that she grants me the right to use her image and in exchange:

"The Photographer grants to the Model and his or her assigns or licensees, the right to use the Photographs in non-commercial advertisements in any medium (including composite or modified representations) for purposes of advertising and promotion of Model's public image and/or career."

I believe that selling T-shirts is a commercial activity and therefore violates the agreement. Although I am not an attorney nor do I expect any of y'all to provide anything other than your opinions.

If she charges for modeling, then her modeling career is a "commercial activity".   Promotions for her modeling, including advertisements, would be "commercial use" by most legal standards.

Thus it seems that the prohibition on commercial use is in direct conflict with the license to use the image to promote her commercial modeling career.

When a contract is ambiguous, it is usually interpreted in favor of the party who did not write it.  In my opinion, it seems that selling T-Shirts with the image is probably allowed by the usage license.

Frequently, the legal meaning of a word or phrase is different from the commonsense meaning.  This is one of the reasons why it is important to have contracts drafted by lawyers, and not by photographers.

My suggestion is to speak with an attorney and have him/her craft a usage license that matches your intent.

Disclaimer: I am not an attorney.  Do not rely on anything I say.  For reliable legal advice consult an attorney.

Looknsee Photography wrote:
...  Remember:
   It is exceedingly easy to escalate hostilities, and
   It is exceedingly difficult to de-escalate hostilities.

Truism .. Thanks for that . It is sometimes difficult to remember.

Karl JW Johnston wrote:
I wonder how the model must feel after reading this thread.

+1




Andrew Thomas Evans
www.andrewthomasevans.com

GPS Studio Services wrote:
You are certainly the copyright holder for the images, but what you have stated here is unclear.  You have said that you have given her the right to use the images for "self-promotion."  Without reading the written "grant of license" it is impossible for us to know the legal meaning of that term as it applies to this situation.  We don't know if it is clearly stated and the bounds delimited or if it is ambiguous.  The term "self-promotion" is very broad and could be viewed in many ways by a court.

I can see a situation where putting an image on a t-shirt could clearly be self-promotion.  That differs from her try to re-licensing to others.  The purpose of selling the t-shirts is a form of self-promotion.   That is precisely why license agreements need to be clear, and are best drawn up by attorneys.

Something also to consider is, when in court, if something is ambiguous, it is generally interpreted against the interests of the person who drafted the agreement.  Put another way, if a court could read your license and decide that selling a t-shirt is a reasonable interpretation of "self-promotion," they may well rule for the model.  The logic is that, being her understanding, that was what she was agreeing to.  If the agreement was unclear, that was your fault as the drafter.

I would be very careful about saying what she is doing is "illegal."  If you are seriously concerned, have an attorney review your license agreement to give you an opinion as to what it means.  You may be right or you may be wrong.  What is clear is, without reading your actual license, it is impossible to know which is true.

As a practical matter, I agree with you.  I am sure you never intended for her to sell t-shirts with the image on it.  As a legal matter, this is far from black and white.

Well, while what you have said is pretty accurate, I do believe that there is a big difference between self promotion, which normally is something like uploading images to a website or online portfolio to get the word out about yourself, hence the word "promotion."  But this looks like a clear violation of that because she is selling the shirts for a profit.  Big difference between "promotion" and "profit."  But to the op, I agree, be careful about how you proceed here.  Consider the legal costs, and I'd add that you may want to consult with a lawyer here if it's a big deal to you.

GPS Studio Services wrote:
You are certainly the copyright holder for the images, but what you have stated here is unclear.  You have said that you have given her the right to use the images for "self-promotion."  Without reading the written "grant of license" it is impossible for us to know the legal meaning of that term as it applies to this situation.  We don't know if it is clearly stated and the bounds delimited or if it is ambiguous.  The term "self-promotion" is very broad and could be viewed in many ways by a court.

I can see a situation where putting an image on a t-shirt could clearly be self-promotion.  That differs from her try to re-licensing to others.  The purpose of selling the t-shirts is a form of self-promotion.   That is precisely why license agreements need to be clear, and are best drawn up by attorneys.

Something also to consider is, when in court, if something is ambiguous, it is generally interpreted against the interests of the person who drafted the agreement.  Put another way, if a court could read your license and decide that selling a t-shirt is a reasonable interpretation of "self-promotion," they may well rule for the model.  The logic is that, being her understanding, that was what she was agreeing to.  If the agreement was unclear, that was your fault as the drafter.

I would be very careful about saying what she is doing is "illegal."  If you are seriously concerned, have an attorney review your license agreement to give you an opinion as to what it means.  You may be right or you may be wrong.  What is clear is, without reading your actual license, it is impossible to know which is true.

As a practical matter, I agree with you.  I am sure you never intended for her to sell t-shirts with the image on it.  As a legal matter, this is far from black and white.

^^ BEST ANSWER!

Blue Box Photography wrote:
Thanks GPS Studio Services for your insightful comments. I had been worried about my old hand-crafted model release left-over from when I first started photographing models because of the vagaries it presents in terms of the usage of the images. (My photographer friends have advocated a separate usage agreement which I have yet to implement.) Maybe this is a wake-up call.

Does selling an image on merchandise fall under "self-promotion?" That's what I need to figure out, I guess. And is she going to get rich off of this shot? Probably not. But she does have nearly 150K subscribers to her youtube channel and tens of thousands of fans on facebook and instagram. She's going to sell some stuff and it would really burn me if I didn't get compensated in some way because my model release was crap.

Add the phrase
" non - commercial use " to the release , making self promotion fine .. profiting not ok

Photos by Stan wrote:
Add the phrase
" non - commercial use " to the release , making self promotion fine .. profiting not ok

And that's NOT what "non-commercial use" means either. It is possible to sell copies of images in a way that is a commercial, revenue generating, profit making, enterprise and still not be a commercial "use."

Studio36

GPS Studio Services wrote:
You are certainly the copyright holder for the images, but what you have stated here is unclear.  You have said that you have given her the right to use the images for "self-promotion."  Without reading the written "grant of license" it is impossible for us to know the legal meaning of that term as it applies to this situation.  We don't know if it is clearly stated and the bounds delimited or if it is ambiguous.  The term "self-promotion" is very broad and could be viewed in many ways by a court.

I can see a situation where putting an image on a t-shirt could clearly be self-promotion.  That differs from her try to re-licensing to others.  The purpose of selling the t-shirts is a form of self-promotion.   That is precisely why license agreements need to be clear, and are best drawn up by attorneys.

Something also to consider is, when in court, if something is ambiguous, it is generally interpreted against the interests of the person who drafted the agreement.  Put another way, if a court could read your license and decide that selling a t-shirt is a reasonable interpretation of "self-promotion," they may well rule for the model.  The logic is that, being her understanding, that was what she was agreeing to.  If the agreement was unclear, that was your fault as the drafter.

I would be very careful about saying what she is doing is "illegal."  If you are seriously concerned, have an attorney review your license agreement to give you an opinion as to what it means.  You may be right or you may be wrong.  What is clear is, without reading your actual license, it is impossible to know which is true.

As a practical matter, I agree with you.  I am sure you never intended for her to sell t-shirts with the image on it.  As a legal matter, this is far from black and white.

Isaiah Brink wrote:

Well, while what you have said is pretty accurate, I do believe that there is a big difference between self promotion, which normally is something like uploading images to a website or online portfolio to get the word out about yourself, hence the word "promotion."  But this looks like a clear violation of that because she is selling the shirts for a profit.  Big difference between "promotion" and "profit."  But to the op, I agree, be careful about how you proceed here.  Consider the legal costs, and I'd add that you may want to consult with a lawyer here if it's a big deal to you.

Self-promotion and profit are independent concepts.  Something can be profitable, promotional, both or neither.


Ideally, all self promotion leads to profits.  The question here is whether the profits are direct (i.e. buy this poster of me), or indirect (here is a poster promoting something else you can buy from me).

GStudios wrote:
I would be happy for the model if she is able to make a buck selling tshirts with my work on them. As long as it is clear that im the photographer that took the picture ill take the free publicity. It would cost me a bundle to pay people to walk around wearing tshirts advertising my work.

Whether or not the image is helpful to the photographer is not relevant.    The question is not whether or not the copyright holder should allow the usage.  The copyright holder is generally not under any obligation to make rational decisions.  The question is whether or not the copyright holder chose to allow the usage.


In this case, the photographer was ambiguous in his permission.

As I mentioned previously, "self-promition" is independent from "profit".   Also "Profit" is separate from whether or not you charge.

I suspect that when many photographers approve "self-promotion", I suspect they mean that the model can use it in her printed, or online portfolio.  Furthermore, she can not use the image on products for sale, or on pay web sites.

When it comes to legal documents, certain words/phrases have meanings that don't correspond to their plain language meaning.  A phrase like "time is of the essence" may sound like "please hurry", but legally, they are very different.

I strongly recommend that you use an attorney prepared document in order to minimize this sort of misunderstanding and ambiguity.   Attorney prepared documents are generally available from professional associations (like the PPA).   You can also have an attorney create a custom document.

studio36uk wrote:

And that's NOT what "non-commercial use" means either. It is possible to sell copies of images in a way that is a commercial, revenue generating, profit making, enterprise and still not be a commercial "use."

Studio36

This should be in big bold letters everytime someone posts these usage/release topics to the forums - thank you.
This and the use of the word "publishing" when uploading to the Internet (and then deriving legal conclusions based on it) has got to be one of the most misunderstood issues on MM forums.

J O H N  A L L A N wrote:
This should be in big bold letters everytime someone posts these usage/release topics to the forums - thank you.
This and the use of the word "publishing" when uploading to the Internet (and then deriving legal conclusions based on it) has got to be one of the most misunderstood issues on MM forums.

Actually placing an image into public view on a website IS publication in the UK; whilst it does not necessarily amount to publication in the US. It might or it might not be publication for US purposes depending on some specific facts.

In the UK, however, we have some case law on it [including in defamation cases; in copyright matters; and also in obscenity cases] that readily leads, because all of those cases are consistent, to the conclusion that it is publication.

Another word that makes me cringe is "collaboration" because it can be, and often is, used casually to mean merely working together; but it means something very specific in copyright law BOTH in the US and in the UK, as well as in several other places that I am aware of.

Studio36

Lallure Photographic wrote:
If she was giving away the T shirts.......it would be self promotion. When she is selling them, it is NOT!

The point that I am making, and many of you aren't getting it, there is no legal meaning to the term "self-promotion."   In a well written document, the meaning of the term will be clearly spelled out.

If the license (or other agreement) simply prohibits "self-promotion," it is going to be whatever a judge decides it is.  When a document is ambiguous, it is usually decided against the person that wrote it.   In those situations, the court will hear what the model thinks it means, and if it is reasonable, that is how it will be interpreted.  The court will reason that that is what she agreed to.

Let's be clear though.  Nowhere did I say that selling t-shirts is self-promotion.  I said "it might be considered self-promotion."  The model would say:  "I am allowed to use the images for self-promotion.  I printed these t-shirts and I am selling them to get my name out there."   The problem with the courts is that you never know how a judge will rule until he does.  The judge could agree with her or decide it is not.  Until the judge rules, this is all just speculation.

On the other hand, if the license has a well written definition of what the term "self promotion" means, this question might not come up at all.

The law is never certain and that is my lesson here.  The facts of every case are considered based on their own merits.

Bob Helm Photography wrote:
I think to some people the use or Tee shirts is a form of  self promotion and as such does it matter if it is a give away or sold? I think I would ask for a shirt and call it even. Or you can call a  lawyer and spend a lot and maybe get a little.

why do people give such bad advice?

Jean Renard Photography wrote:
...
Assuming things are as they seem: The language in your release is fine, selling merchandise is a commercial activity, giving merch away is not.

..

While this definition makes sense, this is not generally how the law defines it.   Furthermore, the OP's license was limited to "self-promotion" - a concept that is independent from "commercial". 

Generally "commercial usage" is one that promotes goods and/or services.  Whether or not that usage directly generates revenue is not a dispositive factor.

For instance, if I take a photo of someone sitting on a park bench, it is generally not considered commercial usage for me to sell that image to a magazine for use in an article about the advantages of local parks.  However it would be commercial usage if I gave that image to the manufacturer for use in a magazine advertisement intended to sell more park benches.  This is true even if the article and the advertisement appear in the same magazine.  Whether or not the magazine is sold or given away is not a definitive factor.

Note that in these examples, the usage where I sell the image is not commercial, and the example where I give away the image  is  commercial.



"Self Promotion" frequently involves selling promotional items.  Imagine I order pens with my web site address on them.  If my intent is to promote my web site, it's "self-promotion" whether I give the pens away or sell the pens.   On the other hand, if my primary business is selling pens, then the web site on the pen might be incidental, and the pens may not be primarily promotional.

GStudios wrote:
I would be happy for the model if she is able to make a buck selling tshirts with my work on them. As long as it is clear that im the photographer that took the picture ill take the free publicity. It would cost me a bundle to pay people to walk around wearing tshirts advertising my work.

and why did we revive a 7 month old thread?

FlirtynFun Photography wrote:
and why did we revive a 7 month old thread?

This is one of those things where the thread may be dated but the underlying question is enduring and more universal in it's nature.

Studio36

Ms Katie Blair wrote:
Still confused.

Why was she given watermark free and high resolution photos?

I always give models hi-res un-watermarked photos. It does affect my ownership. May be she wants to frame them and hang them in her hallway...