Posted by Aaron_H: 
...

Aaron, your entire argument is centered on commercial usage, yet your own portfolio does not advertise a single good or service for sale. There is no link to an outside website where goods and services are for sale.

I'm surprised you assume the photographer in question is any different.

If there are no goods or services for sale, it is art.

The End.

Posted by XtremeArtists: 

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.

First of all it doesn't matter if he's advertising commercial work, by that I mean that the work he does is commercial as compared to "retail" or consumer oriented. I don't think that's what you were trying to talk about, but it further confuses things when you state it like that. Commercial work would be images for advertising or promoting other businesses or people. Retail or consumer would be portriat or wedding etc. where the end use of the photos are personal rather then promoting goods, services etc.

But even if he's not a "commercial" photographer in the sense I just described, but offers his services as a photographer for hire in some fashion, then his use of someone's likeness in his portfolio could be considered a commercial use, because it's promoting his photography service.

But no, I have no idea if that's the case in this instance and I keep saying that. All I've been saying is that... well fuck it, I've said it a thousand times already. Read it or don't

Posted by Tyler: 
was just looking for a quick answer so I can go back to working on the site

So, to sum up, the quick answer is yes... I mean no.... um, what was the question?

Posted by Aaron_H: 

Posted by XtremeArtists: 

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.

First of all it doesn't matter if he's advertising commercial work, by that I mean that the work he does is commercial as compared to "retail" or consumer oriented. I don't think that's what you were trying to talk about, but it further confuses things when you state it like that. Commercial work would be images for advertising or promoting other businesses or people. Retail or consumer would be portriat or wedding etc. where the end use of the photos are personal rather then promoting goods, services etc.

But even if he's not a "commercial" photographer in the sense I just described, but offers his services as a photographer for hire in some fashion, then his use of someone's likeness in his portfolio could be considered a commercial use, because it's promoting his photography service.

But no, I have no idea if that's the case in this instance and I keep saying that. All I've been saying is that... well fuck it, I've said it a thousand times already. Read it or don't

I mean commercial as in commerce–having profit as the aim.

Why would I get into a genre? You are just looking for things to argue about now and not helping answer Tyler's question at all.

I don't care if he shoots glamour, editorial, fashion, commercial print, or weddings. It has no basis to the argument.

com·mer·cial
adj.

   1.
         1. Of or relating to commerce: a commercial loan; a commercial attaché.
         2. Engaged in commerce: a commercial trucker.
         3. Involved in work that is intended for the mass market: a commercial artist.
   2. Of, relating to, or being goods, often unrefined, produced and distributed in large quantities for use by industry.
   3. Having profit as a chief aim: a commercial book, not a scholarly tome.
   4. Sponsored by an advertiser or supported by advertising: commercial television.

Posted by Aaron_H: 

Posted by XtremeArtists: 

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.

First of all it doesn't matter if he's advertising commercial work, by that I mean that the work he does is commercial as compared to "retail" or consumer oriented. I don't think that's what you were trying to talk about, but it further confuses things when you state it like that. Commercial work would be images for advertising or promoting other businesses or people. Retail or consumer would be portriat or wedding etc. where the end use of the photos are personal rather then promoting goods, services etc.

But even if he's not a "commercial" photographer in the sense I just described, but offers his services as a photographer for hire in some fashion, then his use of someone's likeness in his portfolio could be considered a commercial use, because it's promoting his photography service.

But no, I have no idea if that's the case in this instance and I keep saying that. All I've been saying is that... well fuck it, I've said it a thousand times already. Read it or don't

Again Aaron, You are confusing what you think Commercial is compared to what the Supreme Court already said commercial is.

You have yet to show a SINGLE instance where a picture in portfolio would fall under that category.

More crack smoking on your part. I never said a word about the Safe Harbor procedure or the DMCA

Nope you did not, I DID.
I told Tyler EXACTLY what to do to qualify for the Safe Harbor under DMCA.
On the ASMP website they say specifically if a dispute arises to follow that procedure as well.
You on the other hand said I was completely wrong.

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.

A. The Case law SPECIFICALLY states what is and is not Commercial. By NO STRETCH OF THE IMAGINATION can a portfolio be considered Commercial when it comes to the pictures in it.

Let me clarify.
A portfolio is commercial.
The Pictures in it are NOT commercial.
They still get 100% first amendment protect even though they are part of a Commercial portfolio.
This was stated specifically in the ETW case where the art image was part of a brochure to sell said art.
The Court ruled, based on the Supreme Court's definition, that although the brochure was commercial, it does not make the photo inside commercial because the Photo does NOT endorse a product or service.

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?

Partially.
The safe Harbor clause are steps a website operator needs to take if someone claims that an image infringes.
The first thing is the claimant must send documentation proving the infringement.
merely stating it infringes does not make the ISP liable.

Hence I said that Tyler needs to have the manager send him the proof, including the model release, that shows that the work is outside of the scope of the photographers right to post.

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?

I think the problem you is you think commercial is an issue.
It is not.
Where there is an issue is when an item is considered "Commercial Speech"
That is the definition that applies to both copyright and RoP
Commercial Speech, Unlike Art, has only limited First Amendment protection.
In this case, (portfolio) it is not commercial speech, because the image does not endorse the photographer, his photography, or any other product.
That is the test for moving an image from Art to Commercial speech.
That is what the Supreme court has decided and which I have posted here several times.

Commercial, by normal definition is meaningless.
My posts in this thread can be considered Commercial because it influences how people think about me and hence my work.
However, It is NOT commercial speech and is therefore protected by the First amendment.

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!

Obviously you do not.
It has been spelled out for you, and again I am spelling it out above.

I've covered all that in other posts.

No, You again apply a laymans interpretation of a word to a Legal term already defined by the Supreme Court.

Now, You have made some nasty accusations in your thread.
You accuse me of "hav[ing] no credibility and a track record for using incredibly off target examples as "proof" of your mistaken beliefs."

so far to date, It is you that has not put a piece of proof on the table.

again, Others are telling you here you are wrong.

The example I gave is a near perfect match to this situation.
However, you still wrongly insist you are correct. Despite several people telling you and showing you you are in fact wrong.

Unless you can show some Tangible Proof to your assertions, It is you that now has a track record.

How many people need to tell you the sky is blue before you believe them?


Once again though.
From the ETW case-
The Judges' Findings:

"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"



Putting it in to context for the Issue with Tyler.


"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."


Again, How is this off the wall?

Posted by Marvin Dockery: 
Anyone had lunch yet????????

Rice bowl with hoisin beef.

Posted by KM von Seidl: 
I kinda doubt tyler's gonna be asking for anymore simple answers from this crew....

I hope he does.
It makes the boards an interesting place......
and with the exception of one hold out, It appears everyone else here is in agreement that Tyler is fine doing nothing, and a picture in a portfolio does not make it commercial.

Heck, If it did, then everyone that ever took a picture and put it on a web with banners would have to pay the models continuously.

See Banners are ads as well.

Oh, And that means that SAG and ACTRA would have to make changes as well for revenue generated from banners.....

Ok, Maybe not.

Posted by KM von Seidl: 
I kinda doubt tyler's gonna be asking for anymore simple answers from this crew....

Mike Cummings posted a good answer a couple of pages ago.

Tyler said thanks for the info about 3 pages ago.

Now it's just arguing.

Posted by XtremeArtists: 

Posted by KM von Seidl: 
I kinda doubt tyler's gonna be asking for anymore simple answers from this crew....

Mike Cummings posted a good answer a couple of pages ago.

Tyler said thanks for the info about 3 pages ago.

Now it's just arguing.

It is not arguing! :-P

It is discussing in large and boisterous type........

Posted by Ty Simone: 

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?

God you're ignorant. That's about copyright infringement! There is no claim of copyright infringement here!  What I said was that IF there are issues of a models rights to their likeness in the governing jurisdiction, be they rights of publicity, privacy, or commercial exploitation, then it would be up to the photographer to show they had a model release not up to the model to prove there was no release! I'm not going to say it again! If you can't understand what I'm saying and that that is in fact what I'm saying then stop quoting me and responding to me because you're not talking about what I'm talking about.

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.

Now you've sunken to flat out lying Ty. You're a real asshole

Posted by Ty Simone:
I have posted the case law that shows you are 100% WRONG

haha, no you haven't.

Posted by Ty Simone:
I feel so bested now.
I guess you are the better bullshitter......

No Ty, that's one title I concede to you

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!

Oh Jesus fucking Christ Ty! I've overlooked myriad typos and misspellings in virtually every single post you've made! I picked on one of them out of about 5000! And that's because it looked so stupid and looked like it happened because you don't know what the APA is more than it looked like a typo!

Posted by Ty Simone:

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.

Find what? Did I give you any exact phrases to look for? Is every single thing said on every single post on member only forums going to show up? Have you searched the words attorney, lawyer, portfolio, book, advertising, commercial, usage, release and the phrase model release? How many million hits would you get and how long would it take you to go through them all to find that none of them were from any posts indicating what I said they indicated even though I can't cite the exact or entire sentences or paragraphs?  So you're calling me a liar?

Posted by Ty Simone:

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.

You don't know a thing about what the courts have decided, you don't even understand the issues we're talking about! A minute ago you're demanding exact citations of their quotes and then you're saying it doesn't matter who they are or what they said. The only relevant things I said about the ASMP or APA are that Victor Perlman, the head legal counsel of the ASMP, advises that portfolio use is a use that should probably have a model release, and that the other guys said their own IP lawyers advise the same thing.

Posted by Ty Simone:
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.

Different issue

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.

There is probably no better statement that applies to yourself! NONE!

Posted by Ty Simone:
Show me (not post your opinion)
SHOW ME where it says that posting a picture on a website, ANY WEBSITE is instantly commercial use.

I never said that, not once, you're completely clueless as usual! I'm beginning to think you're a high functioning developmentally disabled person.

Posted by Ty Simone:
Show me where it says SELLING a Picture is Commercial use.

I've never said that, but I can show you many examples of YOU implying that's the case! You're twisted!

Posted by Ty Simone:
Show me where Using a picture in a website or brochure that has ads in it is COMMERCIAL use.

They are two different things. There is a definition of brochure that's not an advertising brochure, such as an informational brochure that's not advertising or promoting anything. But the type of brochure that would be relevant would be an advertising brochure, which doesn't "have" ads in it,  it IS a form of advertising or promotional material itself! I seriously doubt there's ever been a court case where the question at issue was whether or not a brochure produced by a company extolling it's own virtues, features, location or pricing etc., was considered advertising or promotion! And I wouldn't know how to find it if there was. But I would say that if a brochure had ads in it as opposed to just being an ad in and of itself, like a small brochure for a tourist area that had ads for several businesses and it was distributed like brochures are, on a seasonal or even longer basis , rather than as a newspaper or magazine usually is, daily, weekly, or monthly, and it's main focus was on promoting the area rather than imparting "newsworthy" information to the public. Then images in it would be commercial uses even if they were in the guise of a small editorial article, because it would be a guise. If there was enough true editorial content, not designed as promotional puff or written or paid for by the advertisers themselves then it wouldn't be considered a brochure at all.

As for the entirely different example of "a website" it's such a broad and vague question that it barely deserves to be answered. Obviously, (to one who's not clueless) there could be both commercial and non-commercial uses of photography on websites depending on the nature of the use!

Posted by Ty Simone:
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.

No, you came to think he was right, silly you, assuming that "Sea Pirate" is some sort of commercial enterprise and the brochure was advertising or promoting that enterprise then you probably have a case unless there are strange laws in that jurisdiction. Depending on when they last used the pictures and what the statute of limitations is on this kind of thing you might still be able to make an issue of it if you wanted to.

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

In psychology this is called "projecting" Ty, you're mistakenly projecting your own characteristics onto someone else. Poor Ty.

Posted by Ty Simone: 

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?

Well it's at least stickier or more of a gray area as far as how it applied to the Woods case itself. But it's not quite analogous to the case at hand, here what we have is participation in a portfolio that is (if it really is) promoting the general services of the photographer, it would be seen as part of advertising for the photography business. That's different then the photographer is selling that particular image as art work and says "here's the image I'm selling."

The Woods case is odd and unusual, the Woods likeness was the artwork itself, and in the brochure what's being advertised is the artwork itself that you'd be buying, which features Woods likeness. If they were also showing an unauthorized photo of Woods on the cover of the brochure that was not the actual artwork featuring him that they were selling, it would imply that he was endorsing the endevour of selling the artwork and he could have sued for that aspect and won.

Since you're prompting me to get to the bottom of that case and it's hard to take your word for anything or follow your jumbled out of context postings I'm searching for info myself and look at one of the first things I found:

From http://64.233.167.104/search?q=cache:MG … f/caselaw/
ETW_v_Jireh_Tiger_Woods_analysis.pdf+tiger+woods+artwork+lawsuit&hl=en&client=firefox-a

"CASE: ETW Corp. v. Jireh Publishing, Inc.
99 F.Supp.2d 829
N.D.Ohio,2000.
PARTIES: ETW is the exclusive licensing agent of Tiger Woods. Jireh is an art publisher
based in Alabama, and the exclusive publisher of "sports artist" Rick Rush
OVERVIEW and PROCEDURAL NOTES: This is a very narrow trademark decision, and is
almost entirely procedural, based on various summary judgment motions, rather than
substantive on the issue of TM (let alone RoP). The case has virtually no precedential value
on Right of Publicity at all, and it is a decision from Ohio which is not generally regarded as a
leading jurisdiction on IP cases"

But I'll keep reading and get back to you

Posted by Aaron_H: 

But I'll keep reading and get back to you

Well the rest of that link didn't mention or address the brochure issue at all but it did indicate that the court's disiscion was wrong in ruling against Tiger. Read it yourself, it makes sense.

Now back to catching up on the thread to see what other crap has gone on that I haven't read yet. I'll try to stop calling him names I suppose, but man he makes it hard!

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.

Wow, I've been trying to avoid, and only skimming most of these tangential issues and I don't want to start an entirely new thing with you over this, but that is only one type of "work for hire." The other type is when it's work for hire not by virtue of the employee/employer relationship, but by virtue of a specific work for hire contract/agreement that would be signed prior to the assignment. I thought we had that issue settled weeks ago? Go back and find the other thread and read the law itself, very carefully.

Maybe you're not denying that and I'd see that if I read the rest of your exchange on this, but I'm not going to and I don't want to continue further on this, but I'm replying strictly to what you said in this post. There can in fact be "work for hire" on a one time basis between a non-employee and a hiring party if they come to a written work for hire agreement before shooting. Fact.

Posted by Ty Simone: 

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!

Posted by Ty Simone:   
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!

Wow, you're hopeless. All I can do is beg you to make unauthorized use of someone's likeness in a big glossy national advertising brochure for a deep pocket corporation like GM, then alert the model/person to this fact and we'll see what happens! Make sure you lie to GM and show them a forged model release and sign something holding them harmless from any claims resulting from problems or discrepancies regarding the model release so that it's all on your shoulders. I can't wait.

Posted by Ty Simone: 

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

For the millionth time, I'm not arguing that it definitely is, based on court rulings that I'm aware of and know inside and out, I'm saying that people with vastly more qualifications and knowledge then you have think that it could be! You keep calling my sources names and inferring they're useless or washed up has beens or whatever. But you don't know what you're talking about, these people are on the cutting edge. Victor Perlman is the head lawyer for the ASMP, that would mean something to anyone who knows anything about commercial photography, which explains why it doesn't mean anything to you! He's involved in virtually every major copyright and IP law case that pertains to photography. He's involved with congress in getting the laws written or changed. You might have noticed that the ASMP filed a brief in the case you keep citing. But I'm sure you have a far greater understanding of the laws then he does and I'm sure you're eminently qualified to understand the things you're reading and citing out of context..... even though I've seen you misread, misunderstand, or misquote probably a hundred cases and laws in my two months or so on Model Mayhem!

Posted by XtremeArtists: 

Posted by Aaron_H: 
...

Aaron, your entire argument is centered on commercial usage, yet your own portfolio does not advertise a single good or service for sale. There is no link to an outside website where goods and services are for sale.

I'm surprised you assume the photographer in question is any different.

If there are no goods or services for sale, it is art.

The End.

You're missing the point, if I'm in business as a photographer, my photography services being for hire, then my portfolio is my selling tool, a promotional tool for my services. It doesn't have to have a single printed word or spell out my services specifically or list prices etc. Like I said to what's his face, haven't you ever seen an ad in a magazine that doesn't even show a particular product or say "buy this" or list any prices, but it's just a photo conveying a mood or a lifestyle and in the bottom corner is a tiny Nike swoosh or VW logo or something similar? That's still advertising. When a photographer is trying to get hired to shoot a half a million dollar job with an ad agency he shows them his portfolio, the portfolio is one of the key components in selling himself and his work for that job and every other job. Yet the portfolio itself usually doesn't have any text in it explaining his services or saying "hey lookie here at Joe Blow photography, aren't we great?" He does all that in other ways, yet the portfolio and the work shown in it is still advertising and promoting his skills and services. That's the common sense logical way to look at it, but it's not what I'm basing the contention on, I'm not even making the contention myself, I'm saying that highly experienced and authoritative intellectual property attorney's specializing in copyright as pertains to photography are saying that that would be the likely interpretation of the courts.

You can think I'm lying or wrong about what they say, I can't help that for now. Or you can believe what I'm saying but put more weight in what Ty Simone says... boy, then I really can't help you!

Posted by studio36uk: 
You guys are giving me a fucking headache...

I've been in this game for a LONG LONG time and have never seen so much shit about so-called "rights" as is in this thread.

Ty, tell the god-damn MM to sue the photographer and leave you alone until he gets some kind of court judgement to enforce his rights if there are any that can be enforced - you have absolutely NOTHING, niente, zip, nada, to do with any agreement or non-agreement that exists or doesn't exist between them on the issue of usage or even copyright.

ONLY the factual copyright owner can order a take down under DCMA. If another party does it they have to prove that they have the authority to do that. Otherwise the images either stay up or go back up, as the case may be.

THAT IS THE BOTTOM LINE TO THIS PROBLEM!

Studio36

Posted by XtremeArtists: 
Aaron, there is no evidence this photographer's portfolio is advertising commercial work.

He may well be a hobbyist showing off his art.

First of all it doesn't matter if he's advertising commercial work, by that I mean that the work he does is commercial as compared to "retail" or consumer oriented. I don't think that's what you were trying to talk about, but it further confuses things when you state it like that. Commercial work would be images for advertising or promoting other businesses or people. Retail or consumer would be portriat or wedding etc. where the end use of the photos are personal rather then promoting goods, services etc.

But even if he's not a "commercial" photographer in the sense I just described, but offers his services as a photographer for hire in some fashion, then his use of someone's likeness in his portfolio could be considered a commercial use, because it's promoting his photography service.

But no, I have no idea if that's the case in this instance and I keep saying that. All I've been saying is that... well fuck it, I've said it a thousand times already. Read it or don't

Posted by XtremeArtists:
I mean commercial as in commerce–having profit as the aim.

Why would I get into a genre? You are just looking for things to argue about now and not helping answer Tyler's question at all.

I don't care if he shoots glamour, editorial, fashion, commercial print, or weddings. It has no basis to the argument.

com·mer·cial
adj.

   1.
         1. Of or relating to commerce: a commercial loan; a commercial attaché.
         2. Engaged in commerce: a commercial trucker.
         3. Involved in work that is intended for the mass market: a commercial artist.
   2. Of, relating to, or being goods, often unrefined, produced and distributed in large quantities for use by industry.
   3. Having profit as a chief aim: a commercial book, not a scholarly tome.
   4. Sponsored by an advertiser or supported by advertising: commercial television.

Not at all Extreme, I mentioned it because you said there was no evidence his portfolio was advertising commercial work and that language could just confuse things further if people thought the type of photography service he offered made any difference. I was trying to clarify it.

I have read virtually everything that's ever been written on usage and the difference between what is and what isn't commercial use of an image. Trust me, an image can be used in a commercial nature without having specific ad copy on the image itself or in a caption. If you think that's not true and you make some wrong moves based on that you could end up very sorry.  I'm not arguing for the sake of arguing, I'm trying to prevent dangerous misinformation from being spread.

As far as how it affects Tyler, I'm sure the main thing is whether or not he has responsibility for this kind of issue when someone is posting it in a portfolio on his site, because it IS a different issue than copyright infringement, I think we know he could be forced to act in a copyright issue, and I think we don't know if he can be forced to act in a case like this. But if he does have responsibility to act in a case of illicit use of a likeness then all those other issues about commercial use or not and the photographer having a release or not would come into play for him.

Posted by theda: 
Do I have to separate you two? What's with all the name calling?

I haven't had time to read through the decision, but I am reluctant to trust Ty Simone's interpretations (just as no one should trust my spelling).

We have at least 3 attorneys and a couple of law students who post here, but have wisely decided to ignore this silliness.

It is right not to trust my opinion, however, there are a bunch of other people that have posted exactly what I am saying.

Let's look at it from a different angle.

Tyler is a small time operation. he does not have a battery of lawyers behind him.

However, Yahoo, I am sure everyone will agree, is a big time operation, with a ton of lawyers at their beck and call.

Yahoo has a section called yahoo Groups.
In Yahoo Groups, you can post images and make them public.
You can even advertise as I have seen some models and photographers do, from within the group.

Do you really think that if Yahoo even thought that an RoP claim would make them liable that they would not require a copy of the release of the model for pictures with people?

Instead, they totally ignore RoP claims as between the Photographer and the Model, and do not take Any action.

They do however take action on copyright claims, again, following the safe Harbor Clause of the DMCA.

Tyler has no liability for the pictures posted here unless someone claims Copyright Violation.

It really is that simple.

COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT


Yahoo! respects the intellectual property of others, and we ask our users to do the same. Yahoo! may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Yahoo!'s Copyright Agent the following information:


an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

a description of the copyrighted work or other intellectual property that you claim has been infringed;

a description of where the material that you claim is infringing is located on the site;

your address, telephone number, and email address;

a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Yahoo!'s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

Same thing I told Tyler to get from the Manager that Aaron said was wrong.

go figure......

notice it is Copyright or IP, not Right to Publicity Claims.....
(Right to Publicity is not IP. Right to Publicity is a personal right)

Posted by Aaron_h
But even if he's not a "commercial" photographer in the sense I just described, but offers his services as a photographer for hire in some fashion, then his use of someone's likeness in his portfolio could be considered a commercial use, because it's promoting his photography service.

But no, I have no idea if that's the case in this instance and I keep saying that. All I've been saying is that... well fuck it, I've said it a thousand times already. Read it or don't



I mean commercial as in commerce–having profit as the aim.

Why would I get into a genre? You are just looking for things to argue about now and not helping answer Tyler's question at all.

I don't care if he shoots glamour, editorial, fashion, commercial print, or weddings. It has no basis to the argument.

com·mer·cial
adj.

1.
1. Of or relating to commerce: a commercial loan; a commercial attaché.
2. Engaged in commerce: a commercial trucker.
3. Involved in work that is intended for the mass market: a commercial artist.
2. Of, relating to, or being goods, often unrefined, produced and distributed in large quantities for use by industry.
3. Having profit as a chief aim: a commercial book, not a scholarly tome.
4. Sponsored by an advertiser or supported by advertising: commercial television.

THIS is where you are wrong.
This is what I and others have been trying to tell you.

your application of the word Commercial is not the same as the Legal term for Commercial Speech which is what matters.

Once something has been determined a Commercial Speech It loses some of it's First Amendment protection.

Something can be Commercial, but not be commercial speech, and Vice Versa.

The Supreme Court has defined commercial speech as "speech which does no more than propose a commercial transaction," and has squarely held that such purely commercial speech is protected by the First Amendment. More broadly, commercial speech has been said by the Court to be "expression related solely to the economic interests of the speaker and its audience." But the latter definition is perhaps too broad. As one court noted,
    "Commercial speech has occasionally been said to be 'expression related solely to the economic interests of the speaker and its audience.' That description is overbroad for the purposes of this analysis. Speech may be related solely to economic interests and not share the 'commonsense differences' from other communications upon which the lesser protection for commercial speech is based. Use of the [above] description as a definition of commercial speech might, for example, permit lessened First Amendment protection and increased governmental regulation for most financial journalism and much consumer journalism simply because they are economically motivated, a notion entirely without support in the case law."

There is no way you can claim a picture of a model "Does no more than propose a commercial transaction"

    The Court noted prior decisions holding that speech about a labor dispute is protected, although economically motivated, and that the Supreme Court has consistently rejected the argument that speech is entitled to diminished First Amendment protection simply because it concerns economic matters or is in the economic interest of the speaker or the audience - Commodity Futures Trading Com'n. v. Vartuli, 228 F.3d 94, 110 n.8 (2nd Cir. 2000). Given that, the line between commercial speech and "pure" speech is about as clear as mud.
    However, the Court in the Discovery Network case strongly suggested that the only type of expression that is "commercial" in the constitutional sense is that which does "no more than propose a commercial transaction." City of Cincinnati v. Discovery Network, Inc. , 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). That is one of the many signals that commercial speech is being afforded an increasing level of constitutional dignity; the tendency is for the court to narrow the definition of that which is protected and "raise the bar" for regulation of that which is classified as commercial speech.

Another Good example.
The L.A. Times.
There is No doubt that the L.A. Times contains Commercial Speech.
1. It is for Sale.
2. I has advertising right in it.

However, that does not move it from protected speech for sections that are not commercial (the Ads)

again, Even if the portfolio is Commercial Speech, the Pictures in it do not endorse the portfolio or the photographer directly, and therefore Are protected.
(reference above is from Bigelow v. Virginia - I paraphrased what the court wrote.)

"The fact that the particular advertisement in appellant's newspaper had commercial aspects or reflected the advertiser's commercial interests did not negate all First Amendment guarantees. The State was not free of constitutional restraint merely because the advertisement involved sales or 'solicitations,' or because appellant was paid for printing it, or because appellant's motive or the motive of the advertiser may have involved financial gain. The existence of 'commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment." 421 U.S. at 819.

Anyways. Done Arguing.
Aaron, you can have your opinion on the Subject.
Nothing seems to sink in.
Commercial means nothing.
Commercial Speech is the issue.
A picture of a model is not Commercial Speech.

Posted by Ty Simone: 
Since I like Tyler's site, And Since DV Tech will be hosting profiles soon, I asked my lawyer to investigate this (and paid him)
Here is what he found:

As Such, it is his belief that a Portfolio on a site like OMP or MM is completely protected as Art under the First Amendment,

It can't be art... it has colors.

Posted by Mike Cummings: 

Posted by Ty Simone: 
Since I like Tyler's site, And Since DV Tech will be hosting profiles soon, I asked my lawyer to investigate this (and paid him)
Here is what he found:

As Such, it is his belief that a Portfolio on a site like OMP or MM is completely protected as Art under the First Amendment,

It can't be art... it has colors.

Oh, Forgot about that....
Hmmmmmmmm

Posted by Ty Simone: 
However, Yahoo, I am sure everyone will agree, is a big time operation, with a ton of lawyers at their beck and call.

Yahoo has a section called yahoo Groups.
In Yahoo Groups, you can post images and make them public.
You can even advertise as I have seen some models and photographers do, from within the group.

Do you really think that if Yahoo even thought that an RoP claim would make them liable that they would not require a copy of the release of the model for pictures with people?

Instead, they totally ignore RoP claims as between the Photographer and the Model, and do not take Any action.

They do however take action on copyright claims, again, following the safe Harbor Clause of the DMCA.

Tyler has no liability for the pictures posted here unless someone claims Copyright Violation.

It really is that simple.

That might be one of the first logical conclusions I've ever seen you come to! It actually makes sense! (not that no large entity with batteries of lawyers has never overlooked something, but still)

Posted by Ty Simone: 
COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT


Yahoo! respects the intellectual property of others, and we ask our users to do the same. Yahoo! may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Yahoo!'s Copyright Agent the following information:


an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

a description of the copyrighted work or other intellectual property that you claim has been infringed;

a description of where the material that you claim is infringing is located on the site;

your address, telephone number, and email address;

a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Yahoo!'s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

Same thing I told Tyler to get from the Manager that Aaron said was wrong.

go figure......

notice it is Copyright or IP, not Right to Publicity Claims.....
(Right to Publicity is not IP. Right to Publicity is a personal right)

You've just never understood that part Ty, I never said that they wouldn't need to do that in an alleged infringement situation! I've repeatedly said that IF they had responsibilities or liabilities in a RoP or any sort of use of likeness dispute, then it would be up to the displaying party to prove they had a release. That's entirely different than an infringement situation, yet you keep trying to use what they would have to do in an infringement allegation to show that it would also be the same procedure for a situation not addressed by the safe harbor policy. You keep accusing me of saying that they shouldn't do what you said they should do in an infringement case when I've never said that or addressed that issue at all since we've never been discussing that issue... although you kept thinking we were!

Posted by Ty Simone: 

Posted by Aaron_h
But even if he's not a "commercial" photographer in the sense I just described, but offers his services as a photographer for hire in some fashion, then his use of someone's likeness in his portfolio could be considered a commercial use, because it's promoting his photography service.

But no, I have no idea if that's the case in this instance and I keep saying that. All I've been saying is that... well fuck it, I've said it a thousand times already. Read it or don't



I mean commercial as in commerce–having profit as the aim.

Why would I get into a genre? You are just looking for things to argue about now and not helping answer Tyler's question at all.

I don't care if he shoots glamour, editorial, fashion, commercial print, or weddings. It has no basis to the argument.

com·mer·cial
adj.

1.
1. Of or relating to commerce: a commercial loan; a commercial attaché.
2. Engaged in commerce: a commercial trucker.
3. Involved in work that is intended for the mass market: a commercial artist.
2. Of, relating to, or being goods, often unrefined, produced and distributed in large quantities for use by industry.
3. Having profit as a chief aim: a commercial book, not a scholarly tome.
4. Sponsored by an advertiser or supported by advertising: commercial television.

THIS is where you are wrong.
This is what I and others have been trying to tell you.

your application of the word Commercial is not the same as the Legal term for Commercial Speech which is what matters.

Once something has been determined a Commercial Speech It loses some of it's First Amendment protection.

Something can be Commercial, but not be commercial speech, and Vice Versa.

The Supreme Court has defined commercial speech as "speech which does no more than propose a commercial transaction," and has squarely held that such purely commercial speech is protected by the First Amendment. More broadly, commercial speech has been said by the Court to be "expression related solely to the economic interests of the speaker and its audience." But the latter definition is perhaps too broad. As one court noted,
    "Commercial speech has occasionally been said to be 'expression related solely to the economic interests of the speaker and its audience.' That description is overbroad for the purposes of this analysis. Speech may be related solely to economic interests and not share the 'commonsense differences' from other communications upon which the lesser protection for commercial speech is based. Use of the [above] description as a definition of commercial speech might, for example, permit lessened First Amendment protection and increased governmental regulation for most financial journalism and much consumer journalism simply because they are economically motivated, a notion entirely without support in the case law."

There is no way you can claim a picture of a model "Does no more than propose a commercial transaction"

    The Court noted prior decisions holding that speech about a labor dispute is protected, although economically motivated, and that the Supreme Court has consistently rejected the argument that speech is entitled to diminished First Amendment protection simply because it concerns economic matters or is in the economic interest of the speaker or the audience - Commodity Futures Trading Com'n. v. Vartuli, 228 F.3d 94, 110 n.8 (2nd Cir. 2000). Given that, the line between commercial speech and "pure" speech is about as clear as mud.
    However, the Court in the Discovery Network case strongly suggested that the only type of expression that is "commercial" in the constitutional sense is that which does "no more than propose a commercial transaction." City of Cincinnati v. Discovery Network, Inc. , 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). That is one of the many signals that commercial speech is being afforded an increasing level of constitutional dignity; the tendency is for the court to narrow the definition of that which is protected and "raise the bar" for regulation of that which is classified as commercial speech.

Another Good example.
The L.A. Times.
There is No doubt that the L.A. Times contains Commercial Speech.
1. It is for Sale.
2. I has advertising right in it.

However, that does not move it from protected speech for sections that are not commercial (the Ads)

again, Even if the portfolio is Commercial Speech, the Pictures in it do not endorse the portfolio or the photographer directly, and therefore Are protected.
(reference above is from Bigelow v. Virginia - I paraphrased what the court wrote.)

"The fact that the particular advertisement in appellant's newspaper had commercial aspects or reflected the advertiser's commercial interests did not negate all First Amendment guarantees. The State was not free of constitutional restraint merely because the advertisement involved sales or 'solicitations,' or because appellant was paid for printing it, or because appellant's motive or the motive of the advertiser may have involved financial gain. The existence of 'commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment." 421 U.S. at 819.

Anyways. Done Arguing.
Aaron, you can have your opinion on the Subject.
Nothing seems to sink in.
Commercial means nothing.
Commercial Speech is the issue.
A picture of a model is not Commercial Speech.

That entire post shows you just don't have a grasp of things, you fail to understand subtleties, distinctions and concepts. Maybe I'll break down your mistakes specifically at a later time. Not that you'll get it, but maybe someone else will.

Posted by Ty Simone: 
Just like the comment about work for hire.
Work-for-hire is NOT a one time thing.
The Supreme court already said so.
Theda Actually pointed it out to me to show that they had defined Work-For-Hire that way.

Not that  should be perpetuating this, but work for hire can be a one time thing, depnding on the terms of the agreement between the photographer and client or employer. Usually it is done within the scope of regular employment, but other types of work for hire can be agreed upon.  See, Ty, statements like this are why I don't listen to your interpretation of legalese.

Posted by Ty Simone: 
Since I like Tyler's site, And Since DV Tech will be hosting profiles soon, I asked my lawyer to investigate this (and paid him)
Here is what he found:

Tyler,
Your site is not in compliance with DMCA.
You need to post the Copyright resolution procedures (like I posted from yahoo) in a ToS area.

As for RoP Liability. You have zero.
RoP is a personal right's issue, and as such is between the model and the photographer.
You have no obligation to remove the pictures unless it is found the photographer is in violation, and you recieve a copy of that finding from the complaining party.

As an example, he cited the Toney v L'oreal Case.
If the assertion is made that a third party hoster is liable, then every Newspaper and Magazine that published the Ad in question in the Toney v. L'oreal case would also be liable.

That was not the case.
Only the Company using the ad was considered liable.

Sounds logical and there's no reason to doubt it. I was always mainly arguing your contention about where the burden of proof would lie IF it ended up being a fact that the photographer would need a release and there was a dispute about whether or not there was a release. You never understood that though. However, even though it sounds right that a usage issue like this wouldn't be Tyler's issue, it would be more reassuring to get this definitive opinion some other way than you relaying a message from an unknown, unnamed lawyer because you've attempted to relay things supposedly through him in the past that were clearly incorrect. I'm sure that if it really was a lawyer you were consulting in those other cases that the problem was most likely either you misstating what the issue was to the lawyer or misstating what his opinion was, or both.

Posted by Ty Simone: 
As to the issue of Profiles being commercial.
For purposes of Copyright and RoP he can find No indication that a profile of work of an artist is Commercial.

He compared it to an Artist displaying his work in an Art Gallery. Even though the work is for sale, and the intent of the show is to increase an Artist's revenue, it is not considered Commercial as defined presently by RoP laws. (At least the ones that are the strictest)

As Such, it is his belief that a Portfolio on a site like OMP or MM is completely protected as Art under the First Amendment, and that although a tort claim could be filed, the artist would most likely win a summary judgement.

Well it wouldn't be surprising if that's how a page on a site like this was looked at, nor very surprising if it went the other way.

I don't think it's as clear as an art gallery. An art gallery display or exhibition has a different nature and character than a portfolio even though getting such exposure would also serve to publicize and promote you.

For one thing a gallery is an outside entity using some sort of editorial judgment on who to exhibit and it's not strictly a self advertising vehicle for you or by you. Promoting yourself might be your, or one of your underlying or ulterior motivations for having a gallery show, but promoting you is not the purpose of the gallery even though they will in fact end up promoting you in an effort to bring people to the show and make sales.

For another thing the works you'd display at the show would be individual works of art for sale & display as works of art in and of themselves, as opposed to simply being a portfolio with the sole purpose of promoting/advertising your services.

On the other hand your own actual portfolio or your own website serving as an online portfolio, is specifically designed to sell or promote your services. It's not an outside entity deciding to display your work based on their own criteria and filtering system and judging your work to have merit and interest to the public. It's just you promoting yourself.

If you were featured and had a portfolio in this section on PDN under photo gallery or photographers portfolios: http://www.pdnonline.com/pdn/gallery/index.jsp that would be different than your own portfolio even though it is a portfolio of your work. That is the PDN editorial staff deciding to feature you based on their own judgment. It's not advertising that you paid for or a site you created to promote yourself. Yet it would certainly be great promotion for you.

MM and sites like this certainly don't exercise any editorial control in the same sense, they might ban or censor certain work due to this or that reason, but they are not seeking out or picking from among photographers to display the work of. You don't have a portfolio on MM because an editorial decision was made to approve of and feature your work specifically. They simply allow virtually anyone to post a certain amount of their own work.

You used a tricky sentence above "No indication that a profile of work of an artist is Commercial" "A profile of" would generally mean someone is choosing to profile you, such as a magazine or website chose your work as an artist and decided to write a story about you, or just feature your work in a "Here's the work of Ty Simone, rising star" kind of way. That's not at all the same as a MM "profile" just because they use the word "profile" to describe our pages.

There are several fine distinctions I've been making. I have little hope that you'll get them, but they are there.

So Perlman et al could turn out to be right and a professional photographers real portfolio (book) and website could be considered advertising and making commercial usage of the photos, while things like your portfolio on MM might not be explicit enough, but they'd be much closer to it than any real profile of an artists work.

Posted by Ty Simone: 
Aaron_h,
You keep claiming all this knowledge etc...
Yet you still have not posted one shred of evidence to back anything you have stated.
Repeatedly saying something does not make it a fact.

Before you said Yahoo blah blah blah they might have overlooked it.
I suppose that goes for google, OMP, AMZ, and every other hosting site in the United States.
Get real!

Is your reading comprehension really that low Ty or are just intellectually dishonest? I actually said you made a good point (for once) and then included a parenthetical caveat because, of course obscure issues could have been overlooked, even by a whole industry. You won't admit it of course, but you know damn well that if you felt like using your search skills you could find many examples of  longtime practices or standard language changing after one incident when someone makes an issue and court case out of something that hadn't previously been thought of, or dealt with or noticed.

Posted by Ty Simone:
I do understand the concept.

You don't even know what I'm speaking of, you talked about several things and I didn't address them specifically. Like I said, maybe I will later, just know & trust that you've missed what is or isn't relevant again and that I'll point it out to you specifically eventually.

Posted by Ty Simone:
Just like the comment about work for hire.
Work-for-hire is NOT a one time thing.
The Supreme court already said so.
Theda Actually pointed it out to me to show that they had defined Work-For-Hire that way.

hahaaha, you're amazing. Read the law Ty. You don't know what you're talking about at all.

Posted by * Visual Mindscapes *: 
Issues issues issues...

I say let them handle the situation on thier own.

As to who has rights to post and what not.  If the photographer is going to be showing the image as a public display, he has to have a model release, even if he owns copyrights to the images.  The model has the right to sue the photographer and could just win.  It's the photographer's fault for not getting it on paper.  The question is, would the model go through lengths to sue?  It is worth it?  Nope.  Is it worth it if the photographer made thousands of dollars selling it to a tabliods?  Yes.  Is it worth it to actors who make millions of dollars?  Nope.

There are many legit ways to display a photo in public that do not require a release. That is not what is being debated, although at this point I'm not sure what is being debated....

Posted by marksora: 
It might be too much to ask.

But can each side make a summary of your positions of the subject.   

I doubt many people are reading this any more.

I think theda just made the most important summary when she said:

Posted by theda:   See, Ty, statements like this are why I don't listen to your interpretation of legalese.

That's really the most important thing to keep in mind, not that he's never right about anything, but it's like pin the tail on the donkey with him.

Posted by theda: 

Posted by Ty Simone: 
Just like the comment about work for hire.
Work-for-hire is NOT a one time thing.
The Supreme court already said so.
Theda Actually pointed it out to me to show that they had defined Work-For-Hire that way.

Not that  should be perpetuating this, but work for hire can be a one time thing, depnding on the terms of the agreement between the photographer and client or employer. Usually it is done within the scope of regular employment, but other types of work for hire can be agreed upon.  See, Ty, statements like this are why I don't listen to your interpretation of legalese.

Theda, You pointed out EXACTLY where it says that it can not. If you want, I will post the link again.
I said it could.
If you want to recall.
So which is it?