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Need some advice on Image rights.
I know what my releases state and basic copyright laws, but I need a little added input on the models rights to an image. A model I work with is having a little trouble with a photographer she used to work with. He never had her sign any releases or paid her directly because they were friends at the time. After their friendship ended he claims she does not have the right to use images he created as he only allowed them use as they were friends. He furthermore claims that gifts including cash, services and wardrobe he purchased were her payment. On his website he has removed all images of her, but continues to claim she was a Client further confusing the issue. He is now demanding that all of her images taken by him be removed or be taken to court. I know it is a sticky mess. I know he retains the right to copyright and she does not have the right to sell the images without his consent, but can he forcibly have her stop using them for a personal website and print portfolio? In the absence of a written agreement stating and or limiting usage what rights does a model have to images taken of her. Maybe, this would be better suited for the model's forum, but I figured I might get a more unbiased answer from other photographers. Thanks in advance, Don. Jul 06 05 07:13 am Link Without asking a lawyer, The way I read what you posted, The Model is screwed. Without a written release it becomes he said she said. That is why Oral agreements are hard to pursue in court. He is complete copyright owner, and she has no claim at all to the images, not even for personal use, because she does not have a written agreement. Furthermore, by paying her, whether it be money, or items, she loses the possibility of claiming mutual benefit (that TFP usually involves) If it had been TFP, she could point out that the standard of TFP is Time For Prints, and that the standard is model is allowed use for self promotion only. Even without a contract, she would have a case for it if she wanted to spend the money. By being "paid" she loses that argument, and lacking an agreement, she is screwed. Of course, He is screwed also mind you. She can claim that she never gave him the rights to use her images (and she has use rights to them) Meaning at best, he can use them maybe for self promotion. Of course, That differs from jurisdiction to jurisdiction, and he may win in must of them because he did pay her. From her end though, Call it tough lesson learned. Jul 06 05 08:58 am Link Thanks for the response. From what I am hearing first off you are right boils down to he said she said. I am getting a lot of mixed comments on what rights the model has one reason I always tell new models to make sure they get everything in writing. I contacted the phtotographer and told him flat out far as I am concerned it boils down to a scorned boyfriend, but I choose to take the high road and end it all quickly. As soon as I know for sure which ones are his, he removes her name from his site I will remove all of his and be done with it. Will see what his response is soon. Jul 06 05 09:06 am Link here are the issues in simple terms. Copyright: Based on what you wrote, he has exclusive copyright to all the image. This means he can limit their usage as he sees fit, even so far as not allowing the model to use it. The only exception she might have, is if she has verifiable documentation that he gave her the right to copy the photos. Email does not count as it can be forged. Use Rights: These vary from place to place, but in general, it amounts to the fact that the model has the right to limit the use of her image, provided she did not give those rights up in writing. Where the issue gets a little hard is that he in fact paid her. What he paid her for would be a matter of Fact for the court to determine, since there was no agreement in place. If it came to court, and he argued that he paid her for use of her images, Which is a logical conclusion, he would easily retain non-commercial usage rights. This would leave commercial usage rights. He could argue that as well, but the court may look down on that argument, depending on how much he paid her compared to what a comparible model would make for full usage rights. If she is not established, then he could win, as "amateur" models have been known to give up their rights for nothing (ie TFP shoots) or if she has rates posted, and he met those rates, again, he could win that argument. If she is more established, and has received more money for rights than he paid, it becomes harder for him to win. Hope all this helps. Again, I think her best bet is to simply walk away as tough lesson learned. Jul 06 05 11:26 am Link According to our attorney's reading of Section 17 of the US Code, 1) the copyright belongs to the photographer, unless a signed agreement (or a witnessed oral or implied agreement) stipulates otherwise. 2) Both parties may use the images for the own personal purposes (e.g for their Book or to frame and hang on their wall). 3) neither may post on their respective websites or other print, electronic, or web publications. In copyright cases, the courts have generally held in favor of the photographer when no contract (model release) is in place. Hope that helps. Cheers, Tim Portland Filmworks Jul 06 05 11:38 am Link Posted by Tim Baker: Is that the use rights? If so, local jurisdiction would cover that wouldn't it? Jul 06 05 12:33 pm Link A few things to consider: Has the photographer actually submitted the images to the copyright office? If not then he has a snowballs chance in hell of collecting any damages. Did the photographer directly supply the images to the model? Doing so could easily be considered an implied contract giving the model limited use of the images. If there is no model release then there is no proof of payment. Any such "payment" while they were friends could be classified as gifts just as easily as payments. Is the photographer really going to pay a lawayer to do anything? If the images have not been officially copyrigthed by the U.S. Copyright office then no attorney would take this case without being paid a retainer as the likelyhood of monetary damages is slim to none. Are the images so important to the model that they even want to deal with any aggrivation regardless of whether there are any real consequences? Jul 06 05 01:56 pm Link Posted by Michael Feinberg: Wrong, He can easily collect the minimal monetary damage, whether registered or not. Wrong. Proof of payment can be a cancelled check, a simple reciept, even the admission by a party in the forums that they recieved the money. Considering the amount of damages is minimal, you need not retain a lawyer for this, and the copyright laws allow you to still sue without registration. I like that question. Jul 06 05 02:06 pm Link Posted by Ty Simone: Posted by Michael Feinberg: Wrong, He can easily collect the minimal monetary damage, whether registered or not. True, but not very useful. Jul 06 05 05:57 pm Link Posted by Ty Simone: Wrong. Work must be registered to bring a copyright suit. i just learned that today. Jul 07 05 12:30 am Link Posted by theda: Posted by Ty Simone: Wrong. Work must be registered to bring a copyright suit. i just learned that today. Theda is right, I stant corrected. Jul 07 05 08:39 am Link Ty, that's very strange. The summary you posted (From the Copyright Office's Copyright Basics guide) is somewhat at odds with the law as stated. I'm surprised they chose to do it that way, even in a basic guide. The section referenced in your quote is essentially Section 411 ("Registration and infringement actions"), which says "(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.". Section 106A(a), however discusses attribution, and author's rights: "...the author of a work of visual art â (1) shall have the right â (A) to claim authorship of that work,...". Claiming authorship of a work that isn't yours is still actionable even if it's not registered--but it has the problems noted earlier of not covering costs and such. Copyright "protection" is bizarre--everything is supposedly protected by law, but the only real protection afforded is suasion unless the work has been registered, since defending an unregistered work is untenable financially. Jul 07 05 06:25 pm Link So the photographer changed the terms on her.. There is no indication from him that she was not allowed to use the photos before was there? Imagine going into a deal with a client where you agree to work for a fee.... and then once the work is done, and you give the client the images that they hired and compensated you to shoot...and then they use the pictures........all of a sudden you raise a stink about that because they hired a different photographer to shoot their next job.. and you attempt to tell them to pull all of the images that you took because of laws on the books? Just because there are laws on the books regarding copyright, doesn't automatically mean that you will win a case if you suddenly change the terms on the client/ model. The model was compensated with pictures, correct? Then those are her pictures. Is she selling them for more than their cost of making them? The photographer will go to court,...tell the judge that he took the photos of her...and didn't ask her to sign a release,...but gave her pictures from the shoots and she could probably prove electronically when she got the pictures, and how long they have been used.. and the judge is going to ask the photographer why are you suddenly changing your position on this matter of use? What's he going to say.....that when he entered into the agreement that they were dating...?? Come on... let the unprofessional photographer learn his lesson.. Agreements are agreements... he doesn't have the upper hand on this one.. JP Jul 07 05 07:55 pm Link Here is the complete deal as I understand it now. As well as update on the situation. He dated her then they started working together, his side of story hers varies. They continued to be friends so he allowed her to use the images. They had a falling out and he deleted himself as manager of her profile on another site, along with his name and links on all photos, but for some reason chose to continue allow her to use the images. Two months or so later apparently he ordered the photographer to remove images. This was before I got involved, but had already built the site for her. So do not know full deal, but we did not even realize till this went down how many of his images were used 1 was fairly prominent and has been removed others were buried in the galleries as they were older images. He contacted me late on the 5th demanding I remove all images or face legal repercussions. I was a tad pâd off with his choice of words and fired off a quick response, but later decided to ask for a few words of advice from friends and posted here as well. After options varied I decided to avoid the hassles and remove the images. I then sent him an email stating that I have other pressing business but would remove the images by this weekend at the latest and they would be removed by 0800 CST on Monday July 11th. Which I considered more than adequate since it is less than 1 business week from his initial request and he could have taken care of all of this hassle 6 months ago. Since that time I found out he sent an email to others that were not involved talking about my business practices as well as sending me several other messages not only wasting my time, but further annoying me especially when he demanded I have them removed within 24 hours after he had spent half of my day filling my mailbox. Since no contracts were signed and it does all boil down to copyrights I do not know if he has authority to revoke his permission, but I have already begun removing his images and long as he drops it will consider my involvement closed. Concerning payment he gave her discs of all shoots as well as several prints. After the fact he has begun claiming work done around her house, outfits purchased as well as cash given to or used to pay for other items was how he paid for the shoots which is where it comes down to hearsay as there is no documentation other than receipts for some purchases none stating what it was for. How many of us have bought costumes or other items for a model? More so, How many of us have bought presents for a Girlfriend? It would be hard for us to claim them as payment for services such as their modeling. As I have said most of what I know is hearsay since neither part was professional enough to get things in writing to me it sounds like a bad episode of Judge Judy or Joe Brown. Ton of BS that does not concern the situation thrown in the mix, both stories completely off the charts in different directions and most of the people I have talked to directly say same as me it all sounds like sour grapes, but better to err on the side of caution than waste time and money on a court battle. While thanks to his harassment his 24 hour deadline has long since come and gone hopefully by this time tomorrow they will be gone and I will be done with him from now till eternity. Jul 08 05 04:01 am Link Donald, After reading your update, I have to change my opinion a bit. If he gave her the images on a disc (and not just prints) there is an implied agreement that she can use the images for self promotion Digitally. If they were only prints, and scanned in by her, he would have a cause of action. But, being on Disc, in digital format, is an indictaion they were given to her for promotion on the web. Once he has given over that right to her, he can not revoke it without cause, and breaking up is not cause. I had an incident earlier where a young model posed nude for me (first time she posed nude) I made some incredible artwork for her, and one of the pieces was my main everywhere. She got a job at a stuff accountant firm, and was afraid someone was going to see them and she'd get fired. She asked me to remove them. Now, that presented a problem for me because, 1. She did the shoot to get images to use for promotional purposes where she actually made a lot of money off of them. 2. 4 of the images were slated for my upcoming book. My initial response was to tell her to fly a kite. But, my humanity kicked in. In order to cover both of our butts, I forced her to pay me for complete rights of the images. By so doing, she could then dictate their use, and I no longer could. From my end, I did not have to worry about future models deciding to have me remove their images, and claiming you did it for her, therefore you must do it for me.... Now, the amount I charged her was $1. She is happy, I am a bit depressed, but in the process I now have a model that will swear I walk on water and make wine out of said water..... My suggestion to you is, Stay out of the middle. Or, if you want to be in the middle, get a notorized letter from the model stating she does have the right to use the images for self promotion. when he complains, tell him you have a letter from the model etc...etc.. and he has to deal with her. :-) Let them fight it out. Jul 08 05 08:03 am Link |
