Posted by Ty Simone:  You know for someone that keeps espousing what the ASMP has to say, You sure as hell do not seem to be reading what is on their website.

As a matter of fact, If you do a quick search, It has an article about having a website, and your obligations, including what to do if there is a dispute over images.
In that article, it tells you to do EXACTLY what I posted for him to do which is EXACTLY what the DMCA says a website owner NEEDS TO DO in order to invoke the Safe Harbor Clause!

Dude, you get everything so mixed up that you'll have to show specifically what you're referring to because it probably doesn't apply to this type of situation.

Posted by Ty Simone:
AS for any future comments you may have, I refuse to continue to have a battle of wits with an unarmed man.

Nice job Ty, you have absolutely zero defense or logical argument to what I posted above so you bow out with this bullshit excuse. I've bested you at every turn and when you can't even continue to defend your positions make that laughable comment.

Posted by Ty Simone:
You keep saying "ASMP / ASA said this that and the other..."
Well, How about posting where that is for us to look at?
How about citing a reference instead of just stating your opinion!

As usual you don't read or don't understand what you read. BTW, "ASA" was one of the old standards for film speed, now it's ISO, the APA is the Advertising Photographers of America.

What I said was about comments made in forum postings from 3 or 4 people on 3 different forums, I'm sorry but I'm not going to stop everything to search a year or two years worth of posts on 3 forums looking for the particular quotes I'm talking about. I might get around to it at some point but the search functions are pretty fucked on all of them, and I'm not an expert at search engines generally.

If you don't believe me, great. Write to Victor Perlman yourself if you like. One of the other one's who's own attorney said the same thing was either Jack Reznicki or Gary Gladstone, I don't remember which one. They run the PNN forums, they've both written several books on photo business and commercial photography and they probably have about 90 years worth of doing national advertising and commercial assignments between them, and they have access to the best IP lawyers in NYC.

The other one's, I don't remember for sure, I sort of think one might have been Joe Pobereskin, another long time NY commercial shooter of respected status. When people like that mention what their attorney's say, well no one opinion is the gospel, but when I hear it from someone like that I remember what I heard and that it has an air of credibility to it even if I no longer remember exactly who said it. Whereas when I hear something from Ty Simone's attorney I don't file that away anywhere.... I'm sure that's not fair to him and that's it's usually just you misrepresenting or misunderstanding what he says though.

Posted by Ty Simone: 
If you give up your copyright 100%, then theoretically the model could make you erase all copies of the image from your harddrive, and turn over all negatives and prints you already have (or destroy them)

Ty, I agree with just about everything you've said in this thread, but I don't think this statement is correct.  Copyright and owning a copy of an image (even the "original copy") are different things.  If what you said were true, you could buy a signed print from a model and then later she could come over and tell you to rip it up.  That just isn't the case.

Even without copyright, you still have the right to own an image, keep it, view it in private, even display it on the walls off your home or in a book to show to personal acquaintances.  Copyright is simply the right to make additional copies of that image.


Peter, you really need to give it up . I'm not sure if you are really that clueless or if you actually have a decent grasp of the concepts but just can't communicate it effectively.  Please, just drop this thread and go see a lawyer.

Posted by Ty Simone: 

Posted by XtremeArtists: 

Posted by Peter Dattolo: 
I dont know the law?

No, you don't.

That may be the shortest post in this whole thread!!!

:-)

And the most obviously true one!

Posted by Peter Dattolo: 
X that would be something the model and photog would hack out in my opinion. The manager has no idea who owns them so he is not in a situation to ask anything of tyler and his site.

How do you know the manager has no idea who owns them?

Posted by Peter Dattolo: 
If he (agent) had ownership of the photos he would have provided proof they were his in some way, which he obviously didnt provide.
The model needs to provide proof the photog is doing something wrong first by posting the photos and infringing on copyright laws, then the photog would need to counter that suit with proof (contract, release, actual photo on disk unedited, proofs). If he has any of those then it shows he is the copyright owner then he would need to prove he owns them by showing a release stating that fact.

The photographer owns the copyright of the image unless the model has a signed document indicating he doesn't

If there is no paperwork, the photographer owns the copyright without any dispute. This is basic.

Posted by Peter Dattolo:
That is how i see it anyways. I could have only have part of all the actual legalities encompass but in my mind this is the basis of it.

You are 100% wrong. It's been explained to you several times, and the info is freely available, or you can hire an attorney.

Posted by Peter Dattolo: 
Tyler at the very least should keep in contact with the photog in case they do have to come down so later on it will not be a issue of "I was never told they had to come down"

How can you advise Tyler when you don't understand the basics?

Posted by Ty Simone: 
ETW v. Jireh Publishing:

Good news, at long last. This is the case where Tiger Woods sued an illustrator named Rick Rush and his publisher for creating and selling a limited edition print showing Woods’ name and Rush’s picture of him. The claims were for infringement of rights of publicity and trademark. After Woods lost in the trial court, he filed an appeal to the U.S. Court of Appeals for the Sixth Circuit. ASMP funded and filed an amicus curiae brief on behalf of the artist. We were joined in the brief, but not in the funding, by a number of associations, including APA, EP, and GAG. After something like two years, the Sixth Circuit finally issued a decision near the end of June, affirming the decision in favor of the artist.
----------------------------------------------------------------

If Tiger Woods does not have a Right to Publicity, then no one does!!!

As usual you cite cases or circumstances that don't apply! They were selling art work that wasn't promoting, advertising or selling any entity, they didn't use Wood's image to advertising or promote anything. They just sold the artwork itself. Entirely different

Posted by Aaron_H: 

Posted by Ty Simone: 
ETW v. Jireh Publishing:

Good news, at long last. This is the case where Tiger Woods sued an illustrator named Rick Rush and his publisher for creating and selling a limited edition print showing Woods’ name and Rush’s picture of him. The claims were for infringement of rights of publicity and trademark. After Woods lost in the trial court, he filed an appeal to the U.S. Court of Appeals for the Sixth Circuit. ASMP funded and filed an amicus curiae brief on behalf of the artist. We were joined in the brief, but not in the funding, by a number of associations, including APA, EP, and GAG. After something like two years, the Sixth Circuit finally issued a decision near the end of June, affirming the decision in favor of the artist.
----------------------------------------------------------------

If Tiger Woods does not have a Right to Publicity, then no one does!!!

As usual you cite cases or circumstances that don't apply! They were selling art work that wasn't promoting, advertising or selling any entity, they didn't use Wood's image to advertising or promote anything. They just sold the artwork itself. Entirely different

Aaron, there is no evidence this photographer's portfolio is advertising commercial work.

He may well be a hobbyist showing off his art.

Posted by Ty Simone: 
Ok.
If you want to read the More interesting points, The Tiger Woods case is EXACTLY on Target.

Summary.

Artist painted Tiger Woods and His Caddy. The Image itself does not have any advertising on it.

Tiger Woods neither Authorized nor posed for the piece.

The Piece in question is being distributed as a 5000 edition limited print, Meaning It is for Sale!

Tiger Wood's Company sued for amoung other things Right to Publicity under Ohio's Law.

All the other issues were dismissed rather easily, but the RoP one has an extensive opinion on it.

Basically, It says that a picture, non-commercial in nature, is COMPLETELY covered by the First Amendment, and that the Owner can reproduce and sell said image, Whether there is a release or not (since Tiger did not sign one)

... and noting that examples of painting, music, and poetry are "unquestionably shielded" by the First Amendment) and Kaplan v. California, 413 U.S. 115, 119-120, 93 S.Ct. 2680, 2684, 37 L.Ed.2d 492 (1973) (an obscenity case wherein the court remarked that "pictures, films, paintings, drawings, and engravings ... have First Amendment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution

Therefore a Picture in and of itself is covered as art under the First Amendment.

Bery v. City of New York, 97 F.3d 689, 695 (2nd Cir.1996) (individual artists sought to display and sell their creations in public spaces in the City without a vendors license.). The Berycourt found no less protection because the materials were offered for sale and stated, "paintings, photographs, prints and sculptures ... always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection." Id. at 696

Simply selling it does not lessen an image's First Amendment's protection.


And As for it being part of ANOTHER Commercial item (such as a book or a website)

Thus, Parks offered no insight into distinguishing mere posters from artwork. Therefore, plaintiff's assertion that all posters are the equivalent of merchandise is untenable. Nor has plaintiff convinced the Court that the prints are commercial speech which plaintiff acknowledges is defined as that which "does no more than propose a commercial transaction" or that which "merely advertises a product or service for business purpose." Plaintiff asserts that under this definition the poster is commercial speech. Plaintiff points to the Rick Rush newsletter which advertises the posters and asserts that the use of the mark Tiger Woods therein is commercial speech in that it uses the mark to propose a commercial transaction. (Doc. 73 Ex. A). However, the newsletter is not the poster which is at issue in this case.[5] Rather, the Court finds that paintings and drawings are protected by the First Amendment. The item at issue herein is a print of a painting done by Rick Rush who characterizes himself as "America's Sporting Artist-Painting America through Sports." In the packaging containing the print, Rush states, "I want to give America serious art on a subject central to American life." The narrative states generally what Rush wishes to express through this art, for example, "As man is valuable, so is what man does, and sports--perhaps more than other activities--reminds us of life's best moments and its brevity in the same instance." The item at issue is a "limited edition;" a certificate verifies that "only 5000 prints [are] available worldwide." It appears that the United States Supreme Court would find such expression to fall within the ambit of the First Amendment. See, e.g., Hurley *836 v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 2345, 132 L.Ed.2d 487 (1995) (a case challenging the right to exclude some marchers from a parade wherein the court remarked that "the Constitution looks beyond written or spoken words as mediums of expression" ... and noting that examples of painting, music, and poetry are "unquestionably shielded" by the First Amendment)

If this does not convince you that the photog is right, nothing will.

Sigh, you just don't get it. You're whole argument is based on the fact that it "was for sale," which in your uneducated mind means it was a commercial use. If they had used the artwork in advertising for GM they would have lost, they would have been using Tiger to promote GM. Even though they would own the copyright to the artwork, they couldn't use Tiger's image to advertise or promote GM without his consent. But they did nothing like that, they created artwork and sold the artwork. Gigantic difference.

Posted by XtremeArtists: 

Posted by Aaron_H: 

Posted by Ty Simone: 

Posted by Aaron_H: 
A photographers portfolio, in a book or online, is considered advertising of his services and the prominent use of one's likeness in your advertising is taken to be an implicit endorsment of what's being advertised. That's the whole basis for the need of model release's

NO!
Can you read?

It must ENDORSE A PRODUCT!
Then it is commercial use.

Jesus Ty, it's in the very text that YOU quoted; "in connection with the offering for sale or sale of a product, merchandise, goods, or services; [or] for purposes of advertis-ing or promoting products, merchandise, goods, or services."

Can you read? Do you have some disease that selectively  plucks out only the parts you wish existed instead of what things really say? Photography is a SERVICE and prints are a PRODUCT.

Aaron, how much is the photographer in question charging for the goods and services you say he offers?

I have no idea, I don't know who it is or anything about them. But somewhere in the previous million posts on this threads I noted that if he has no business to promote there probably isn't an issue, and if he's small time there probably isn't a whole lot of realistic risk.

Posted by Aaron_H: 

Posted by Ty Simone:  You know for someone that keeps espousing what the ASMP has to say, You sure as hell do not seem to be reading what is on their website.

As a matter of fact, If you do a quick search, It has an article about having a website, and your obligations, including what to do if there is a dispute over images.
In that article, it tells you to do EXACTLY what I posted for him to do which is EXACTLY what the DMCA says a website owner NEEDS TO DO in order to invoke the Safe Harbor Clause!

Dude, you get everything so mixed up that you'll have to show specifically what you're referring to because it probably doesn't apply to this type of situation.

you keep claiming these people know what the hell they are talking about. Fine, Then according to them, from their website, When a person disputes the rights on an image, The Website owner should follow the procedures to invoke the Safe Harbor Clause of the DMCA.
I posted those procedures word for word.
It includes Asking the Complainer for all documentation and contracts pertaining to the image as proof of his right.
Failure of the Complainer to send the documents means Tyler need do nothing.

You turn around and say, Well it is up to the photographer to prove they are his, not the person complaining.

so which is it?
Is your vaunted group of loooooong time experts wrong, Or are you?

Posted by Ty Simone:
AS for any future comments you may have, I refuse to continue to have a battle of wits with an unarmed man.

Nice job Ty, you have absolutely zero defense or logical argument to what I posted above so you bow out with this bullshit excuse. I've bested you at every turn and when you can't even continue to defend your positions make that laughable comment.

I am so bested here.
Let's recap shall we.
You have stated you know everything because you heard from some guy you can not really site and therefore it must be.

I have posted the case law that shows you are 100% WRONG

I feel so bested now.
I guess you are the better bullshitter......

Posted by Ty Simone:
You keep saying "ASMP / ASA said this that and the other..."
Well, How about posting where that is for us to look at?
How about citing a reference instead of just stating your opinion!

As usual you don't read or don't understand what you read. BTW, "ASA" was one of the old standards for film speed, now it's ISO, the APA is the Advertising Photographers of America.

So, I made a typo. Out of about five thousand words, I miss one letter.... Sue me!

What I said was about comments made in forum postings from 3 or 4 people on 3 different forums, I'm sorry but I'm not going to stop everything to search a year or two years worth of posts on 3 forums looking for the particular quotes I'm talking about. I might get around to it at some point but the search functions are pretty fucked on all of them, and I'm not an expert at search engines generally.

I am an expert at datamining.
Ok, maybe not expert, but incredibly advanced at it.
I can not find it anywhere.
Not by anyone.

If you don't believe me, great. Write to Victor Perlman yourself if you like. One of the other one's who's own attorney said the same thing was either Jack Reznicki or Gary Gladstone, I don't remember which one. They run the PNN forums, they've both written several books on photo business and commercial photography and they probably have about 90 years worth of doing national advertising and commercial assignments between them, and they have access to the best IP lawyers in NYC.

I could care less if they wrote 1000 books.
The fact of the matter is that the COURTS have already decided the issue. You know, Law is a funny thing, It is sort of like trying to grab mercury at times.

Up until the ETW case, they may very well have been right.
Once the ETW case was decided by the courts, all those books that said otherwise became moot.

The other one's, I don't remember for sure, I sort of think one might have been Joe Pobereskin, another long time NY commercial shooter of respected status. When people like that mention what their attorney's say, well no one opinion is the gospel, but when I hear it from someone like that I remember what I heard and that it has an air of credibility to it even if I no longer remember exactly who said it. Whereas when I hear something from Ty Simone's attorney I don't file that away anywhere.... I'm sure that's not fair to him and that's it's usually just you misrepresenting or misunderstanding what he says though.

Yeah Right.
Like I said, The law is there.
It is posted here so many times now, you just do not get it.

What is more likely true is you have no concept of what you are hearing on either side of the coin.

Show me (not post your opinion)
SHOW ME where it says that posting a picture on a website, ANY WEBSITE is instantly commercial use.
Show me where it says SELLING a Picture is Commercial use.
Show me where Using a picture in a website or brochure that has ads in it is COMMERCIAL use.

When My family and I were camping at Sea Pirate, a photographer took our picture, along with my friends family, and a few other people there.
When I asked him what it was for, he said, "For next years brochure."
I said "Great, How much you going to pay me?", his response was "Nothing. I do not have to."

Come to find out, he was right.

You on the other hand, Have proven only that you can shoot BS as fast as an elephant with Diaherria (spelling)

Posted by Aaron_H: 

Posted by Ty Simone: 
ETW v. Jireh Publishing:

Good news, at long last. This is the case where Tiger Woods sued an illustrator named Rick Rush and his publisher for creating and selling a limited edition print showing Woods’ name and Rush’s picture of him. The claims were for infringement of rights of publicity and trademark. After Woods lost in the trial court, he filed an appeal to the U.S. Court of Appeals for the Sixth Circuit. ASMP funded and filed an amicus curiae brief on behalf of the artist. We were joined in the brief, but not in the funding, by a number of associations, including APA, EP, and GAG. After something like two years, the Sixth Circuit finally issued a decision near the end of June, affirming the decision in favor of the artist.
----------------------------------------------------------------

If Tiger Woods does not have a Right to Publicity, then no one does!!!

As usual you cite cases or circumstances that don't apply! They were selling art work that wasn't promoting, advertising or selling any entity, they didn't use Wood's image to advertising or promote anything. They just sold the artwork itself. Entirely different

NO YOU FREAKING IDIOT! READ THE POST and the Opinion!
It applies 100%

The image was also In a BROCHURE to sell that and other Artwork!
WTF is wrong with you?
How is that different than an online portfolio?
Am I missing something here?

Posted by Gary Davis: 

Posted by Ty Simone: 
If you give up your copyright 100%, then theoretically the model could make you erase all copies of the image from your harddrive, and turn over all negatives and prints you already have (or destroy them)

Ty, I agree with just about everything you've said in this thread, but I don't think this statement is correct.  Copyright and owning a copy of an image (even the "original copy") are different things.  If what you said were true, you could buy a signed print from a model and then later she could come over and tell you to rip it up.  That just isn't the case.

Even without copyright, you still have the right to own an image, keep it, view it in private, even display it on the walls off your home or in a book to show to personal acquaintances.  Copyright is simply the right to make additional copies of that image.


Peter, you really need to give it up . I'm not sure if you are really that clueless or if you actually have a decent grasp of the concepts but just can't communicate it effectively.  Please, just drop this thread and go see a lawyer.

The situation you describe is a bit different.
If you give over 100% copyright in the agreement, She owns it from the get go (as soon as the image is created) and you do not have the right to retain anything adssociated with the shoot.
Slightly different then buying a piece.

Posted by Aaron_H: 
Sigh, you just don't get it. You're whole argument is based on the fact that it "was for sale," which in your uneducated mind means it was a commercial use. If they had used the artwork in advertising for GM they would have lost, they would have been using Tiger to promote GM. Even though they would own the copyright to the artwork, they couldn't use Tiger's image to advertise or promote GM without his consent. But they did nothing like that, they created artwork and sold the artwork. Gigantic difference.

NO NO NO NO NO!
It was in His BROCHURE!
You know the thing that says Come buy my artwork!
Now, Are YOU claiming a brochure is NOT commercial all of a sudden?

It was in the brochure, which was an ad, for the sale of the Artist, artwork.

Just like a picture here is in a portfolio which may or may not be an ad, which may or may not be used For the sale of a service by the photographer.

Where do the Two seperate at?

"Plaintiff points to the Rick Rush newsletter which advertises the posters and asserts that the use of the mark Tiger Woods therein is commercial speech in that it uses the mark to propose a commercial transaction. (Doc. 73 Ex. A). However, the newsletter is not the poster which is at issue in this case"

Does THAT spell it out for you?

Let me put into the Tyler Case.
"Plaintiff points to Model Mayhem profile X which has the information for Studio A on the site and the use therein is Commercial Speech in that it uses the mark to propose a Commercial Transaction. However, the website portfolio is not the Photograph which is at issue here."

How is that.
Analogous enough?

Posted by Aaron_H: 

Posted by XtremeArtists: 

Aaron, how much is the photographer in question charging for the goods and services you say he offers?

I have no idea, I don't know who it is or anything about them. But somewhere in the previous million posts on this threads I noted that if he has no business to promote there probably isn't an issue, and if he's small time there probably isn't a whole lot of realistic risk.

OK. I agree with that.

Posted by Ty Simone: 

Posted by Gary Davis: 

Posted by Ty Simone: 
If you give up your copyright 100%, then theoretically the model could make you erase all copies of the image from your harddrive, and turn over all negatives and prints you already have (or destroy them)

Ty, I agree with just about everything you've said in this thread, but I don't think this statement is correct.  Copyright and owning a copy of an image (even the "original copy") are different things.  If what you said were true, you could buy a signed print from a model and then later she could come over and tell you to rip it up.  That just isn't the case.

Even without copyright, you still have the right to own an image, keep it, view it in private, even display it on the walls off your home or in a book to show to personal acquaintances.  Copyright is simply the right to make additional copies of that image.


Peter, you really need to give it up . I'm not sure if you are really that clueless or if you actually have a decent grasp of the concepts but just can't communicate it effectively.  Please, just drop this thread and go see a lawyer.

The situation you describe is a bit different.
If you give over 100% copyright in the agreement, She owns it from the get go (as soon as the image is created) and you do not have the right to retain anything adssociated with the shoot.
Slightly different then buying a piece.

Alright, that wasn't a great example.  But I still don't think signing over 100% copyright means you have to hand over the originals.  What if copyright was transferred after the images where created?  Would the previous copyright owner have to hand over every copy that was made while he had the copyright?  I still believe if any images captured are to be handed over or destroyed, that it would have to be explicitly stipulated, either seperately or as part of the transfer of copyright agreement.

Posted by Gary Davis: 

Posted by Ty Simone: 

Posted by Gary Davis: 

Posted by Ty Simone: 
If you give up your copyright 100%, then theoretically the model could make you erase all copies of the image from your harddrive, and turn over all negatives and prints you already have (or destroy them)

Ty, I agree with just about everything you've said in this thread, but I don't think this statement is correct.  Copyright and owning a copy of an image (even the "original copy") are different things.  If what you said were true, you could buy a signed print from a model and then later she could come over and tell you to rip it up.  That just isn't the case.

Even without copyright, you still have the right to own an image, keep it, view it in private, even display it on the walls off your home or in a book to show to personal acquaintances.  Copyright is simply the right to make additional copies of that image.


Peter, you really need to give it up . I'm not sure if you are really that clueless or if you actually have a decent grasp of the concepts but just can't communicate it effectively.  Please, just drop this thread and go see a lawyer.

The situation you describe is a bit different.
If you give over 100% copyright in the agreement, She owns it from the get go (as soon as the image is created) and you do not have the right to retain anything adssociated with the shoot.
Slightly different then buying a piece.

Alright, that wasn't a great example.  But I still don't think signing over 100% copyright means you have to hand over the originals.  What if copyright was transferred after the images where created?  Would the previous copyright owner have to hand over every copy that was made while he had the copyright?  I still believe if all images captured are to be handed over or destroyed, that it would have to be explicitly stipulated, either seperately or as part of the transfer of copyright agreement.

No, If copyright changes hands after creation, then everything prior to the transfer remains in effect.
What I cited was an extreme abuse / use of copyright in reference only to effectively giving the copyright away before the image was ever made.
It would never apply to any real world thing, because, as I said, I do not know any photog that would do it.

Posted by Ty Simone: 
What I cited was an extreme abuse / use of copyright in reference only to effectively giving the copyright away before the image was ever made.
It would never apply to any real world thing, because, as I said, I do not know any photog that would do it.

Isn't that what "work for hire" typically is?  Copyright is transferred up front to whoever hired the photographer.  If all originals are to be provided also, I believe that also must be stipulated in the agreement.  It's a mode of opperating that I think most professional photographers would like to see go away, but it does happen.  So I think your example does have real world application but is inaccurate.

Posted by Gary Davis: 

Posted by Ty Simone: 
What I cited was an extreme abuse / use of copyright in reference only to effectively giving the copyright away before the image was ever made.
It would never apply to any real world thing, because, as I said, I do not know any photog that would do it.

Isn't that what "work for hire" typically is?  Copyright is transferred up front to whoever hired the photographer.  If all originals are to be provided also, I believe that also must be stipulated in the agreement.  It's a mode of opperating that I think most professional photographers would like to see go away, but it does happen.  So I think your example does have real world application but is inaccurate.

No.
I once thought it would fall under work for hire myself.
Theda Corrected me.
Work for hire means I hire you to photograph something else as part of your employment.
It is not a one time thing.
For example, A staff photographer for Time falls under Work for Hire.
But me hiring you to make a brochure does not.
(there are several cases where that distinction was made - that a one time thing is not considered employment and therefore is not work for hire)

In the work for hire case, then Time literally owns everything that the staff photographer produces while working for Time.
It includes the prints, the negatives, the copyright, everything.

Posted by Mike Cummings: 
BTW guys this is NOT a copyright dispute, it is a contract dispute. Having or not having a model release does not diminish the copyright. 

Actually, It encompasses all three as listed earlier.
It pits Copyright versus RoP versus (if exists) a contract.

If there is a contract, then that applies
If not, a determination is made for an RoP claim (which this fails)
Failing an RoP claim, it then goes to the rights of the copyright owner, which is the photog, which means, in this case, The Photog is fine (short of a contract) Tyler is fine, the Manager can go blow himself.

Posted by KM von Seidl: 
Tyler,  if this 90 page thread hasn't been a good example of a reason why to cough up the change and simply have decent legal counsel, I'm not sure what is.....

Finally! It was only 6 pages! I knew I'd catch you on something some day...

I agree with the lawyer thing though. A few good IP attorneys in the state.

Posted by Ty Simone: 

Posted by Aaron_H: 
.....
See above. You don't want it to be commercial exploitation, you don't think it is, but you don't know it isn't.

Posted by Ty Simone:  ...then I am not going to spend my time answering you.

That would be a godsend

See the post above.
You are the one NOT READING.
It is NOT COMMERCIAL.

If that case does not prove it to you, then you must have some serious mental defect!

Jesus man, I can't come close to keeping up with the amount of bullshit being spewed here, mostly by one person, I'm not even close to done reading page 5, hell I was replying to things on page 4 when we were already on page 6! But now I can't even get through the rest of this one post of yours before having to reply! Slow the garbage down! You have seriously little concept of what is and what isn't commercial! That's whether you end up being right about portfolio use or not!

Posted by Ty Simone: 
A Picture, that does not have advertising on it, Is a piece of art PERIOD!

Complete bullshit! Totally depends on the context!

Posted by Ty Simone: 
Until it is placed WTIHIN an ad, it is not COMMERCIAL!

Much closer to the truth. But you have no concept of what advertising or promotional material is. An annual report or a capabilities brochure might not strictly qualify as advertising, but they are commercial uses. Within one of those things might be some fluffy story about the manufacturing process or workers picking fruit in a field, and it appears to be an editorial style story about the land or the people or the process or the way the company treats the community or whatever. And there is no specific ad copy on the photo and nothing that specifically says "Buy Caterpillar (scum who should be put in prison) tractors" on or near the photo, yet it is commercial usage!

Posted by Ty Simone: 
The courts have ruled this about a zillion times!
the Supreme Court said so as well!
The Supreme Court is the LAW OF THE LAND!
No local, state or Federal Law can supercede the Supreme Court.

The Supreme Court hasn't ruled on portfolio usage even once.

Posted by Ty Simone: 
It is the Burden of the Person FILING THE CLAIM to prove
1. That the image is commercial in nature.

True

Posted by Ty Simone: 
2. That the image violates the Right to Privacy of the individual.

Or rights of publicity, or rights of commercial exploitation, or probably other similar rights or concepts

Posted by Ty Simone: 
Now, the manager can do NEITHER.

Well it's not "neither" as I just illustrated, it's one of at least three things and you simply have no cause to say he can't prove them.

Posted by Ty Simone: 
Therefore the only thing he has left is breech of contract.
Therefore, he needs the release that says "This image can not be used in the photographer's portfolio"
Short of that, He has no case.

he, THE PLAINTIFF, must present the proof of infraction.

That would be true if the rest of what you said was true, but you don't know that it is and it's probably not.

Posted by Ty Simone: 
Otherwise, I can claim every image in your portfolio is a violation of my copyright, and you would have to produce proof that they are all yours.
It does not work that way.
It works the otherway.
I must first prove a copyright claim, THEN you defend your claim of copyright.
Otherwise, a simple claim could keep you as a photog tied up for years.

No Ty, we're not talking about copyright claims. But you could claim that all my images violated your copyright, that they were all copying, in the imitation sense, and I'd have to defend myself. Of course if we were really talking about you and me it would be summarily dismissed as absurd before I ever had to say a word. None of that has a whit to do with whether or not the defendant would have to produce a model release or other contract stating he could use someone's image commercially in his defense, if in fact the usage was seen as commercial. He would!

Posted by Ty Simone:   
Otherwise, It is simply a posting of an image in an online book, by the COPYRIGHT HOLDER! the COPYRIGHT HOLDER has the right to do such under FEDERAL LAW, and state Law DOES NOT PREEMPT THE FEDERAL COPYRIGHT STATUTE!

Yes indeedy he does... barring any issues over usage rights of a person or property. Which is the whole damn thing we're talking about

You are AGAIN WRONG.
Read the Copyright laws. NO STATE LAW can diminish it.
It's Rights are first and formost.
the issue at hand is how to reconcile ALL THE LAWS that apply.

FEDERAL LAW says a Picture in and of itself is protected as free speech (there for not an invasion of privacy, nor is it an infringment on right of Publicity)
Therefore, The COPYRIGHT LAW applies here, not the RoP laws.

The only "scope" allowed, unless otherwise agreed to, would be non-commercial, which brings us back to determining if the use is considered commercial or not if there was no release.

The Image is automatically non-commercial unless it is altered to have an ad associated with it.

Read the woods opinion again!


You have no clue what you are talking about in all this.
Quit while you are ahead!

No Ty, you're the one with no clue and you should quit while you're very, very, far behind. In fact in many sports leagues this would have been called on the mercy rule long ago.

And ok, I lied, I did make it through this whole absurd post before I replied!

Posted by Ty Simone: 

Posted by Gary Davis: 

Posted by Ty Simone: 
What I cited was an extreme abuse / use of copyright in reference only to effectively giving the copyright away before the image was ever made.
It would never apply to any real world thing, because, as I said, I do not know any photog that would do it.

Isn't that what "work for hire" typically is?  Copyright is transferred up front to whoever hired the photographer.  If all originals are to be provided also, I believe that also must be stipulated in the agreement.  It's a mode of opperating that I think most professional photographers would like to see go away, but it does happen.  So I think your example does have real world application but is inaccurate.

No.
I once thought it would fall under work for hire myself.
Theda Corrected me.
Work for hire means I hire you to photograph something else as part of your employment.
It is not a one time thing.
For example, A staff photographer for Time falls under Work for Hire.
But me hiring you to make a brochure does not.
(there are several cases where that distinction was made - that a one time thing is not considered employment and therefore is not work for hire)

In the work for hire case, then Time literally owns everything that the staff photographer produces while working for Time.
It includes the prints, the negatives, the copyright, everything.

OK, didn't know that.  So work for hire wasn't the correct term.    But getting back to your example, even if you don't know anyone that would work that way, it wouldn't surprise me if there are people who do.  I still don't see why the photographer couldn't retain originals even if copyright was transferred up front and I still believe that handing them over would have to be explicitly agreed upon.  Granted, without SOME sort of agreement, this could create a sticky situation but I just don't see this as automatically requiring orginals to be handed over or destroyed at the copyright owners will. 

Posted by Gary Davis: 

OK, didn't know that.  So work for hire wasn't the correct term.    But getting back to your example, even if you don't know anyone that would work that way, it wouldn't surprise me if there are people who do.  I still don't see why the photographer couldn't retain originals even if copyright was transferred up front and still believe that handing them over would have to be explicitly agreed upon.  Granted, without SOME sort of agreement, this could create a sticky situation but I just don't see this as automatically requiring orginals to be handed over or destroyed at the copyright owners will.   

This is a simple one.

Look at a typical TFP:

Q: Do you hold the copyright to the photos you take?

A: Yes

Q: Do you let the model use images for her portfolio?

A: Yes


Therefore, the copyright holder (regardless of who they are) is not always the only one who can show an image.

Posted by Ty Simone: 

Posted by Aaron_H
You can't guarantee me shit! You know nothing about it! There are ads like that produced every day using models and actors, do you know something specifically about that particular ad?

I can Guarentee you.
I know one of the guys in the company that produced the ad

Hey, I'll be genuinely happy for you if that's true, it might be the first fact you've used in this thread!

Posted by Ty Simone:

Have you ever seen a movie or TV show featuring crowded NY streets? Are you just assuming that they were all captured moments of real street life not actors and extras? Can I have some of what you're smoking?

Both NYPD Blue and Homicide Life on the Streets were cited before.
Both are well known to have used footage of the streets, and in Homicide, they actually filmed ALOT on the streets (it is in MD they filmed that, Not NYC) What part of this are you not getting?
Do just a LITTLE research!

.
YOU do some research! It's totally dependant on the specifics of each situation. You don't have a clue!

Posted by Ty Simone:

Now on the other hand it's quite possible that it was true in that case, certainly it has been in others. But this is once again a different issue (you're so good at confusing issues!) A crowd scene is a judgment call.

No it is not a judgement call.
A crowd scene is always considered background.
unless it is the focus of the image in general.

If anyone appears to be "featured" or prominent enough, they would need a release, but if they are seen as just "part of the crowd" then no release is needed.

NO - READ THE FREAKING POSTS!
The courts have already RULED ON THIS ISSUE!

You have no idea what you're talking about, you can't show anything that says I'm wrong, I'm sure you can post endless off target cases, but nothing that addresses the issue. I've read about this issue and specific cases many times, as well as talking to an IP lawyer directly about a potential issue of this nature. You've got to be the most consistently misinformed person I've ever come across... (Well, Peter isn't even worth considering)

Posted by Ty Simone:

But there is no set specific criteria. Generally, the more people in the crowd, the smaller the people in question are in relation to the overall image, the safer you are. Also things like where the focus of the image is as defined by the actual optical focus/out of focus, or other ways focus is directed such as lighting, placement, perspective etc., would all play a part in deciding.

A crowd scene at a stadium with hundreds of visible faces all fairly small in the frame and none standing out any more than the others in any way is probably ok. But a similar shot with the same number and size heads, except this time you're seeing the back of everyone's head, aside from one guy who is facing the camera and he's clearly recognizable, now you probably have a problem. Or in the first shot if everyone else was in shadow and there's a beam of light picking out the one guy... problem. If you've made the photo black and white but leave the one guy in color, problem.

WRONG AGAIN!
Case in point, here in NYC is the Jets guy.
There are a ton of photographs of him for sale on the street as part of the Jets Crowd.

He wears a construction helmet,
He has Jets painted on him,
And he gets the crowd to yell "J-E-T-S Jets Jets Jets!"

Quite noticable in the pictures, yet not an issue for the sellers.

once again, The CASE LAW is right there for you to read.

What case law? Now you're really rambling! This is just some random story you just spewed, you didn't cite any case law and I have no idea of the case you're talking about. But from your description it sounds like, ONCE AGAIN, you have no fucking idea what commercial usage is!

Posted by Ty Simone:
You can not refute it.
You simply want to try an pick a way to a safe spot now. That is all you are doing.

You do not respond to issues brought up.

I can't refute what? What are you talking about? I've refuted everything you've said! It's YOU who stopped trying at one point and made lame claims about not responding anymore because you think I'm not a match for you! (hahahahaha!!!!) You did that when even you knew you didn't have  a leg to stand on with the particular things I had just said! You're losing your mind now!

Posted by XtremeArtists: 

Posted by Gary Davis: 

OK, didn't know that.  So work for hire wasn't the correct term.    But getting back to your example, even if you don't know anyone that would work that way, it wouldn't surprise me if there are people who do.  I still don't see why the photographer couldn't retain originals even if copyright was transferred up front and still believe that handing them over would have to be explicitly agreed upon.  Granted, without SOME sort of agreement, this could create a sticky situation but I just don't see this as automatically requiring orginals to be handed over or destroyed at the copyright owners will.   

This is a simple one.

Look at a typical TFP:

Q: Do you hold the copyright to the photos you take?

A: Yes

Q: Do you let the model use images for her portfolio?

A: Yes


Therefore, the copyright holder (regardless of who they are) is not always the only one who can show an image.

This isn't what we're talking about.  We're talking about whether transferring copyright up front automatically means that the copyright owner can demand that the photographer hand over or destroy all originals and copies.  Has nothing to do with "displaying".

Posted by Aaron_H: 
Jesus man, I can't come close to keeping up with the amount of bullshit being spewed here,

Quit posting and there would not be any Bullshit here!
You post not a single verifiable fact to date.
I have posted all the links and cited the cases to support my assertions.
You have only your opinions here and some vague reference to second hand information from some old timer with a lawyer that said something in a forum at one time or another which you can not even find.

mostly by one person,

See Above comment

I'm not even close to done reading page 5, hell I was replying to things on page 4 when we were already on page 6! But now I can't even get through the rest of this one post of yours before having to reply! Slow the garbage down! You have seriously little concept of what is and what isn't commercial! That's whether you end up being right about portfolio use or not!

I am 100% right. See the perfect analogy from the ETW case to the Tyler case here.
It is as close as any two cases will ever be!!!

Posted by Ty Simone: 
A Picture, that does not have advertising on it, Is a piece of art PERIOD!

Complete bullshit! Totally depends on the context!

I would love to here this example!

Posted by Ty Simone: 
Until it is placed WTIHIN an ad, it is not COMMERCIAL!

Much closer to the truth. But you have no concept of what advertising or promotional material is. An annual report or a capabilities brochure might not strictly qualify as advertising, but they are commercial uses.

Not in a legal sense when it applies to copyright or RoP.
It says specifically what Commercial Speech (which is what matters) is in the Supreme Court rulings cited Earlier.

Within one of those things might be some fluffy story about the manufacturing process or workers picking fruit in a field, and it appears to be an editorial style story about the land or the people or the process or the way the company treats the community or whatever. And there is no specific ad copy on the photo and nothing that specifically says "Buy Caterpillar (scum who should be put in prison) tractors" on or near the photo, yet it is commercial usage!

BAH! braindead you are!
It is NOT Commercial Speech!
Read the freaking posts!

Posted by Ty Simone: 
The courts have ruled this about a zillion times!
the Supreme Court said so as well!
The Supreme Court is the LAW OF THE LAND!
No local, state or Federal Law can supercede the Supreme Court.

The Supreme Court hasn't ruled on portfolio usage even once.

I suppose that is an accurate statement, Kind of like when Clinton said I did not have sex with that women.....
The Supreme Court has ruled on What is and Is not Commercial Speech.
That is what is at issue in this whole mess.
In the Case of a portfolio, As I cited numerous times for you, The Portfolio may be commercial, But the Pictures in the portfolio are not.
It is spelled out in black and white for you.

DUDE! I quoted the Supreme Court ruling on what is COMMERCIAL SPEECH which determines if a piece of art is COMMERCIAL or Protected!
Damn man, READ!

The ETW case cites the rulings all over the place!

Posted by Ty Simone: 
It is the Burden of the Person FILING THE CLAIM to prove
1. That the image is commercial in nature.

True

Posted by Ty Simone: 
2. That the image violates the Right to Privacy of the individual.

Or rights of publicity, or rights of commercial exploitation, or probably other similar rights or concepts

WRONG.
Those are Layman's Terms.
Their are two issues, Depending on the state, Right to Privacy, and Right to Publicity.
Right to Privacy does NOT apply to an image unless it is taken in a place where their is an expectation of privacy.

Posted by Ty Simone: 
Now, the manager can do NEITHER.

Well it's not "neither" as I just illustrated, it's one of at least three things and you simply have no cause to say he can't prove them.

It is Neither.
It is all three four five or whatever!

Posted by Ty Simone: 
Therefore the only thing he has left is breech of contract.
Therefore, he needs the release that says "This image can not be used in the photographer's portfolio"
Short of that, He has no case.

he, THE PLAINTIFF, must present the proof of infraction.

That would be true if the rest of what you said was true, but you don't know that it is and it's probably not.

Posted by Ty Simone: 
Otherwise, I can claim every image in your portfolio is a violation of my copyright, and you would have to produce proof that they are all yours.
It does not work that way.
It works the otherway.
I must first prove a copyright claim, THEN you defend your claim of copyright.
Otherwise, a simple claim could keep you as a photog tied up for years.

No Ty, we're not talking about copyright claims. But you could claim that all my images violated your copyright, that they were all copying, in the imitation sense, and I'd have to defend myself. Of course if we were really talking about you and me it would be summarily dismissed as absurd before I ever had to say a word. None of that has a whit to do with whether or not the defendant would have to produce a model release or other contract stating he could use someone's image commercially in his defense, if in fact the usage was seen as commercial. He would!

Posted by Ty Simone:   
Otherwise, It is simply a posting of an image in an online book, by the COPYRIGHT HOLDER! the COPYRIGHT HOLDER has the right to do such under FEDERAL LAW, and state Law DOES NOT PREEMPT THE FEDERAL COPYRIGHT STATUTE!

Yes indeedy he does... barring any issues over usage rights of a person or property. Which is the whole damn thing we're talking about

You are AGAIN WRONG.
Read the Copyright laws. NO STATE LAW can diminish it.
It's Rights are first and formost.
the issue at hand is how to reconcile ALL THE LAWS that apply.

FEDERAL LAW says a Picture in and of itself is protected as free speech (there for not an invasion of privacy, nor is it an infringment on right of Publicity)
Therefore, The COPYRIGHT LAW applies here, not the RoP laws.

I HAVE SAID THAT 100 TIMES ALREADY!

The only "scope" allowed, unless otherwise agreed to, would be non-commercial, which brings us back to determining if the use is considered commercial or not if there was no release.

The Image is automatically non-commercial unless it is altered to have an ad associated with it.

Read the woods opinion again!


You have no clue what you are talking about in all this.
Quit while you are ahead!

No Ty, you're the one with no clue and you should quit while you're very, very, far behind. In fact in many sports leagues this would have been called on the blowout rule long ago.

And ok, I lied, I did make it through this whole absurd post before I replied!

Refute the points I made.

Show me how the ETW is different than what we are discussing.
Show me where your example (in case law) is accurate for commercial.

I have shown you a ton of examples. You have done nothing but pontificate.
You can not back up your wrods with a SINGLE example!

Posted by Mike Cummings: 

In other words if the model in the photo appears to say "This guy is the best photographer and I just love him" or "I am really horny and like 3 guys at a time" or "I'm one of his whores" then the photographer is safe in showing the photo.

I like the way you are putting order back into the thread, but I think you wanted to say the photos should NOT say the above and still be shown, right?

Posted by Gary Davis: 

Posted by XtremeArtists: 

Posted by Gary Davis: 

OK, didn't know that.  So work for hire wasn't the correct term.    But getting back to your example, even if you don't know anyone that would work that way, it wouldn't surprise me if there are people who do.  I still don't see why the photographer couldn't retain originals even if copyright was transferred up front and still believe that handing them over would have to be explicitly agreed upon.  Granted, without SOME sort of agreement, this could create a sticky situation but I just don't see this as automatically requiring orginals to be handed over or destroyed at the copyright owners will.   

This is a simple one.

Look at a typical TFP:

Q: Do you hold the copyright to the photos you take?

A: Yes

Q: Do you let the model use images for her portfolio?

A: Yes


Therefore, the copyright holder (regardless of who they are) is not always the only one who can show an image.

This isn't what we're talking about.  We're talking about whether transferring copyright up front automatically means that the copyright owner can demand that the photographer hand over or destroy all originals and copies.  Has nothing to do with "displaying".

A contract can say anything you want it to.

Posted by Mike Cummings: 
Case Review

Person A is a manager/agent and is complaining about Person B's photos (photographer).  Person A says that Person B has his clients photos up without signed model releases so he has no permission to use them.  Person B says he has copyright. Person A says it [/i]doesn't matter because he doesn't have model releases.[/i] 

Person A's position:
No release signed by model
Person B's  position:
My photo my copyright

Question: Can you post a photo without a release.

Answer: Yes, as long as the photo does not endorse or imply endorsement of a product or service. Or does not show the model in a "bad light" or in a manner that is "not true".

If the photo in question does not have an endorsement attached  the photo can be displayed. If the photo does not have any "bad light" attached it can be displayed.

In other words if the model in the photo appears to say "This guy is the best photographer and I just love him" or "I am really horny and like 3 guys at a time" or "I'm one of his whores" then the photographer is safe in showing the photo.

Model Mayhem has no right or obligation to become involved in a contract dispute. Especially when there is no contract.

Thanks Mike!
Perfect summary.

Here comes Aaron again to try to argue that a portfolio is commercial use though :-P

Posted by XtremeArtists: 

Posted by Mike Cummings: 

In other words if the model in the photo appears to say "This guy is the best photographer and I just love him" or "I am really horny and like 3 guys at a time" or "I'm one of his whores" then the photographer is safe in showing the photo.

I like the way you are putting order back into the thread, but I think you wanted to say the photos should NOT say the above and still be shown, right?

Thanks for catching that. I edited it.

Posted by Ty Simone: 
Aaron,
I just read the rest of your misquoted post. [/quote

What did I misquote?

Posted by Ty Simone: 
You still have not answered why it is, you looooong time experts say that Tyler (in this case) should follow the Safe Harbor procedure provided in the DMCA, but when I post that procedure, you tell me it is wrong.
Are you wrong or are they wrong?
Which is it?

More crack smoking on your part. I never said a word about the Safe Harbor procedure or the DMCA. What I said was that the people I was referring to indicate that portfolio usage is, or might be, considered advertising usage. I also said, somewhere in this thread, that I have no idea what this site's responsibility or liability is in this kind of case. That's NEVER been what I've been arguing. The main things that I've been arguing are that A:  Portfolio usage can probably be considered a form of advertising or promotion. B: That considering A, a model release is wise and might be needed for portfolio usage. And C: If such usage is deemed commercial, and unauthorized commercial usage of one's likeness is illegal in the governing jurisdiction, then it would be the defending parties responsibility to prove they did in fact have a release not the other sides responsibility to prove there wasn't a release or show they had signed something prohibiting said usage.

Posted by Ty Simone: 
If they are wrong, Any further quote from them is about pointless eh?
If you are wrong, then at least be a Man and admit it.

Like I said, I didn't read exactly what you're talking about and you'll have to show it specifically, I don't remember exactly what's in the safe harbor and DMCA crap, but as I remember it has to do with websites or ISP's hosting sites that have infringed work on it and the steps that can be taken to get them to remove it or have the site shut down, am I right? If so it's once again waaaay off target for this discussion! If it IS on target you'll have to show me and prove it because you have no credibility and a track record for using incredibly off target examples as "proof" of your mistaken beliefs. I'm not going to invest any extra time reading something on your recommendation when I can almost gaurantee it will be a waste of time. Quote what you think is relevant and I'll show you how you're wrong again.

Posted by Ty Simone: 
Furthermore,
There is NO DEBATE as to if the image is commercial when posted here or not, and no web search I can think of has produced a single link that would suggest that it is commercial use.

Commercial use is well defined by the Supreme Court.
Despite this concept you seem to have that making money is commercial use, it is not.

MY GOD! That's been YOUR position! I'm the one who understands what commercial usage is and that one can make money from a photo or art work without it being commercial! You keep posting things that indicate you think otherwise! What rabbit hole have you fallen into?

Posted by Ty Simone: 
Commercial Use in a nutshell means the person in the photo must endorse or appear to endorse a product or service.

I'm the one who understands that Ty, you don't!

Posted by Ty Simone: 
It matters not what is outside of the photo, unless it makes reference to the photo in a Commercial way as defined above.

i.e. Putting - "4 out of 5 models prefer shooting with Jim." Under, around or on the picture would take a protected speech piece and make it Commercial Speech.

This is not the case here.
He can add it to the brochure he has as well (again see the Tiger Woods Case) and as long as it is simply a sample of his work, and does not make an endorsement of it, It is protected.

Posted by Ty Simone: 
(in the ETW the picture in question was in a brochure to sell that picture amoung others)

I've covered all that in other posts.

Posted by XtremeArtists: 
I agree with Mike for the second time this week. ;-)

*thud* dammit stop that.. I have weak bones .. I am liable to break something