Copyright, Use of Photos, Sale predicament and questions

[EricKonieczny]

I know there is no easy answer to this, but I am just looking for some clarifications and help from the most knowledgeable place I know of. Sorry for being so lengthy. :mad:

I am part of a promotions group here locally that helps organize and produce events as in concerts, shows, etc at nightclubs, restaurants, and parks. There is about 10 people involved in the group and many others that have helped out or played as an artist. Any money we make goes back into covering costs for future events.

We have produced 3 events in the last few months and both times I have taken photos or all the musicians, artists, DJ’s, performers, and all the people at the event. I have then placed the photos on my website for everyone to view, and to help promote the events. I did this all for free to help out, because I like doing it. :D


Now after the last 2 events, some of the artists and DJ’s want copies of the photos they are in. I have already seen many of my photos on their websites without my permission, they have most likely taken a screen shot and then cropped out my watermark, since you cannot download the photos directly, since I use the Flash option of EE. ;)

Everyone involved with the event, knows I am photographing the event, can see my there for 4-5 hours taking photos, and I ask a person If I can take there photo before I take it. This also opens up a can of worms with model / artist releases, and such.

I don’t mind giving people small low resolution images with my watermark on them for their website if they ask me. But more recently one of the DJ’s asked me for copies without my watermark, so that he could use them as promotional material with his record label. I told him, he would have to purchase the higher resolution, non watermarked images from me for a reasonable price.


This has now started a big fiasco and debate within the group. :evil:

[EricKonieczny]

Here is what has been posted by other members on another message board concerning all of this:

Hey man if you are selling any photos from the events we need to talk.

the promoter has rights to the pics just as much as the photographer does, and to sell someone else’s image, you must have their written permission, unless that person is considered to be a public figure(as in a nationally or globally recognized figure, hence the term"public figure").
if no deal is made between the promoter and photographer, this does not give the photographer the right to make stipulations concerning the photographs after they have been taken and definitely doe not give him or her the right to sell the pictures to the people in the shots...
take some communication law classes!!!
no drama, its just the truth...
eric is an AWESOME photographer and this is not directed towards him, but i am using this sityuation to prove the legalities of the situation. technically , you must have written permission to post someones picture on a website as well.
any comments?

I really like the pics and all , but i think it is ridiculous to try to sell someone a picture of themself, when by law you must have written consent to post them on the internet or sell them to anyone, including the person featured in the shot..

the people in the pics deserve to have pictures that someone took of them(by law), if we set up a lil booth at the event and sold prints like cedar point, that would be fair?? i do not think anyone was asking for prints, and if they were cool, i am speaking of the actual tiff, or jpeg files... so wouldnt we be creating art and deserve to have the pics too??? i look at all of the venues we use, and they definitley transform after we set up all the sound and lighting. i thought this was over already? there is no doubt eric is an excellent photographer, hands down.



this whole thing came up when a collective member asked another collective member for copies of the pics of himself. now working in a group means working together and helping one another out, even with something as simple as some digital pictures

Generally speaking, when an individual writer or artist creates a work, he or she immediately becomes the original owner of the copyright. When the work is created at the behest of someone else, however, initial ownership may belong to the buyer rather than to the individual creator of the work. The key legal question is whether the creator was acting as an employee of the buyer. If so, the copyright material is called work for hire, and ownership vests automatically with the employer, absent an agreement to the contrary."

I have taken a few Law classes, That quote was something i found in a school book of mine...

[PhotosGuy]

I really like the pics and all , but i think it is ridiculous to try to sell someone a picture of themself, when by law you must have written consent to post them on the internet or sell them to anyone, including the person featured in the shot.. Why not trade him/her a copy of the pic in return for a signed release? See if you can give them limited rights (1 year, etc) & retain the majority of the © for future use.

[Longwatcher]

technically , you must have written permission to post someones picture on a website as well.
any comments?

I really like the pics and all , but i think it is ridiculous to try to sell someone a picture of themself, when by law you must have written consent to post them on the internet or sell them to anyone, including the person featured in the shot..

the people in the pics deserve to have pictures that someone took of them(by law), if we set up a lil booth at the event and sold prints like cedar point, that would be fair??

Unless something has dramatically changed, you don't need permission to post a picture of someone on the internet as long as 1. you are not trying to derive money from the picture and 2. you are not protraying the person in a defaming manner.

Otherwise all newspaper's web sites would be in serious trouble as would any events with crowds of people in them. It is good to get a release even for just posting the picture, but it is not necessary in that case. At least in the US given the 1st admendment protections that remain.

And just because you took a picture of them does not mean you have to give them a copy.

If I am wrong on those two items then I am in serious deep trouble because I do those two things all the time for event shots. I only deliberately try to get model releases if someone else is going to publish it or if there is a chance I can make money off the shot.

[chtgrubbs]

Well, the quote from the textbook says it all. You created the photographs, and you weren't an employee, so you own all the rights. I think this poster is a good example of " A little knowledge is a dangerous thing."

But it sounds like you have reached the point where you need to nail down your rights. So you probably should get releases and you should give the other members of the collective a written statement of how you want to handle use of your photos.

[PhotosGuy]

You created the photographs, and you weren't an employee, so you own all the rights. True, but owning the rights & being able to use the pics for other than editorial & educational purposes are two different things.

[EricKonieczny]

yeah I am not trying to make money off of every shot.

If an artistt, DJ, or performer wants a full high resolution image for marketing and promotions purposes I will then sell them the image as a digital file.


But under all circumstances, I will always own the copyright, unless I have them sign a copyright release form.

[sdommin]

Regardless of the legalities, or the question of who's right and who's wrong, you know where this is going? Stop me if you've heard this before...

"No photography allowed"

You need to decide what is more important to you - ownership of your photos and maybe a few bucks or not being able to take pictures at all.

[jukas]

yeah I am not trying to make money off of every shot.

If an artistt, DJ, or performer wants a full high resolution image for marketing and promotions purposes I will then sell them the image as a digital file.


But under all circumstances, I will always own the copyright, unless I have them sign a copyright release form.

Why not offer any of the performers free low res images for their website with a watermark. If they want to have a high res copy to use for promotional materials, why not give them a discounted rate and limited rights and have the money they pay go towards the group?

It doesn't sound like you are trying to make money out of this group, but don't want these DJ's to get free promo material to benefit themselves from the groups efforts so that sounds like the perfect mix. The DJ gets what they want, and the group gets some additional funding for future events.

This is a case where a little knowledge is a dangerous thing when people claim things like :

the people in the pics deserve to have pictures that someone took of them(by law),

The DJ has no right to expect free use of the image unless that was covered by your contract with the promotor. What they do have the right to do however is limit your useage of the image to editorial by not signing a release.

If the shot is good enough to use for marketing purposes see if you can reach a happy medium where the DJ gets limited rights, the group gets some benefit (cash, link from the DJ's website, etc) and you get a signed release.

[jfrancho]

I can't tell from your post who is involved in the "big debate." If it is the performers, it may help to try and "keep it cool" with performers. Have them sign a release, give them a few files, and if they want more, explain to them that you charge a fee. Just like they take a portion of the door. But make sure the mood is copasetic, you won't get any pay gigs if the performers don't like you. As far as the protors go, I'm sure you can work it without resorting to a ban on photography. Unless there is some contractual restriction involving the promotors, artist, or venue, it isn't any of their business what you photograph, or what you do with them. Also, remeber that employees are compensated for their contributions in "not for profit" ventures.

[EricKonieczny]

I can't tell from your post who is involved in the "big debate.".


It is both the perfomers and the group/ promoters. It is all one big group, which I am part of.

I don't mind the group using the photos to advance the group and help market the next event. But I do want to control where my photos go and just a little credit for them.

By no means will i get rich off of these, since most are up and coming artists also.

I will talk to them about signing a release for the photos also in change for copies.

[IndyJeff]

Here is what has been posted by other members on another message board concerning all of this:

Hey man if you are selling any photos from the events we need to talk.

the promoter has rights to the pics just as much as the photographer does, and to sell someone else’s image, you must have their written permission, unless that person is considered to be a public figure(as in a nationally or globally recognized figure, hence the term"public figure").

What? Tell this guy to go pound sand. The Promoter has no right to the images unless, and only unless he has paid the photographer and it is an undestanding by both parties that it is a work for hire, or the photographer has signed away rights without compensation. I would ask to see the articles of incorporation of the promoter. If there isn't one, then who is the entity that is considered as "the promoter?

As far as being a public or private person, once that person gets on that stage they then become a "public figure in a public performance" this still doesn't mean you can sell their image to the general public or for advertising for the group or anyone else. If the image is used in an editorial manner, they nor the promoter have nothing to say about it.


if no deal is made between the promoter and photographer, this does not give the photographer the right to make stipulations concerning the photographs after they have been taken and definitely doe not give him or her the right to sell the pictures to the people in the shots...
take some communication law classes!!!
no drama, its just the truth...

If no deal is made between the photographer and the promoter then yes, the photographer has every right to license any photo he took to the preformers for commercial use. If he wants to sell them to the performer he can do that as well.
This would be another guy I would tell to go pound sand. He needs to get out his "communication law books" and do some refreshing. Maybe he missed that day, I don't know but he is not anywhere near correct. Save the drama for your mama.


eric is an AWESOME photographer and this is not directed towards him, but i am using this sityuation to prove the legalities of the situation. technically , you must have written permission to post someones picture on a website as well.
any comments?

This has not been tested in court yet but the general feeling is, while you may need permission to post someones picture there is also a part of law called undue burden which would cause you to not to be able post anyones picture without permission. that is a major reason it has not been tested. So, you may post someones image but, if you are asked to remove that image you must heed by their wishes. That is of course unless it is used in an editorial manner, then you have limited protection under the 1st amendment. Of course then you have the burden of proving you are a news site and afforded that protection.

I really like the pics and all , but i think it is ridiculous to try to sell someone a picture of themself, when by law you must have written consent to post them on the internet or sell them to anyone, including the person featured in the shot..

Ignore this clown. He needs to stick with asking people "You want fries with that?"

the people in the pics deserve to have pictures that someone took of them(by law), if we set up a lil booth at the event and sold prints like cedar point, that would be fair?? i do not think anyone was asking for prints, and if they were cool, i am speaking of the actual tiff, or jpeg files... so wouldnt we be creating art and deserve to have the pics too??? i look at all of the venues we use, and they definitley transform after we set up all the sound and lighting. i thought this was over already? there is no doubt eric is an excellent photographer, hands down.

Where do these people get these rediculous ideas? They are probably the same people who buy a print in a 4x6, take it to Wal-Mart and try to make an 8x10 thinking that because they purchased the print they can do with it as they please, it belongs to them.
Does this guy ever go to Cedar Point and ride a roller coaster? Don't they, loke most amusement parks, take a shot of you which you may PURCHASE after you get off the ride? Tell him to go up and demand they give him one. He will get some attention alright, attention from security and probably a quick walk to the gate and a hearty farewell.



this whole thing came up when a collective member asked another collective member for copies of the pics of himself. now working in a group means working together and helping one another out, even with something as simple as some digital pictures

Ahhhh yes Grasshopper. working as a collective they should help each other out for the good of the group but, when one wants to use images created for use by the group to promote himself outside the group, we have opened up a whole new can of worms here.
I am taking it this is the dj who wants to use the images for his own record label. Now who is taking advantage of the group for financial gain himself? Certainly the photographer is no more taking advantage, and maybe even less, than the dj.

Generally speaking, when an individual writer or artist creates a work, he or she immediately becomes the original owner of the copyright. When the work is created at the behest of someone else, however, initial ownership may belong to the buyer rather than to the individual creator of the work. The key legal question is whether the creator was acting as an employee of the buyer. If so, the copyright material is called work for hire, and ownership vests automatically with the employer, absent an agreement to the contrary."

I have taken a few Law classes, That quote was something i found in a school book of mine...

Yes, all of that is pretty much true but, is Eric an employee? Does he receive compensation? Are taxes withehld? Is workmans comp paid? Is a 1099 issued?
Of none of the above are in fact being done then Eric is about as much of an employee of the group as I am.




In the end of all of this what it boils down to Eric, are you paid for your services? Are the performers paid? Is the dj paid? If so, why aren't you? Should you be working for free when others are being paid for their services?

Was there an agreement between you and the group that allowed for outside useage by the performers?

Have you learned a lesson about working for free? See once you do, then it is expected of you to do so and I think we can all see how that is true in this instance. The "group" expects Eric to give them his work, without any compensation but, they should be free to use his work where they otherwise would have to pay good money to get someone to do what it is that he does. Price a record label use sometime for 1 image. It ain't cheap.

[garnerfoto]

I feel your pain Eric. I have myself in a similar situation, albeit not as deep as you.

Just for fun, ask these DJs if you can have their art/work free of charge to do with as you please, i.e., post it on your website for free downloading, to use in conjunction with your photos to give them more feeling. I can only imagine the responses you would get. Then turn these responses around at them substituting the word photo for music. It is the same thing. Your work, your art. If they continue to balk, politely ask them to price a working pro to come in and do what you do.

@IndyJeff, you are 110% correct. I wish I had found this board before I started down the path of free/cheap/under priced work. I had no idea what to charge, felt unsure of my abilities, and felt odd asking for money, so I did it for the experience and exposure. It is h@!l getting out of that rut.

One time I mentioned charging for showing up and shooting and the person said "...oh that's fine for other bands, but not for us, you're our official photographer." Granted, he is a fairly good friend, but I haven't been back to a gig to shoot for him since.

Another associate has talked of usage for a magazine ad by one of their endorsers. Always talks the "photo credit" bit. Peeves me to no end. He won't hear of talking dollars, and doesn't back off when I tell him that photo credits don't buy food. He still doesn't have a high-res shot for that ad.

I may be closing some doors; but other, better doors are currently opening up for me, stringer for a 'zine. I won't be making the same mistakes again.

If the DJs are smart, they are running their music business as a business. You should run your photo business as a business as well. Business is business.

Stick to your guns. Don't let them make you a chump.

[johnnybfan]

Isn't it amazing how quickly, once the "person doing it for free" tries to do what is his by legal right, he/she is deemed a greedy s.o.b.?
Point out that you should be getting paid for wear and tear on your equipment. It sounds like these people don't give a damn about anything but themselves.
Stick to your guns and, if they don't want to agree to something you can work with, tell them to go jump in a lake. But remember that compromise is a not really a bad thing.

[EricKonieczny]

Yeah well the poop has hit the fan with this whole ordeal. Pardon my language. I have decided to stop working with the group for sure. And if I do notice anyone using my photos without my permission, they will be recieveing a letter from my lawyer. Read below, they think I am joking, and the judge won't even hear the matter. :eek:

Here are a few more excerpts from the discussion regarding copyright and the photos in question.

Me-Eric " Another thing is that I have now sent in a copies of all my photos from the last 6 months to the US copyright office. So I have legal support if anyone uses my photos without expressed written consent."

Artist/DJ "Copyright infringement of digital photos is hard to prove. file:///C:%5CDOCUME%7E1%5CEricK%5CLOCALS%7E1%5CTemp%5Cmsoh tml1%5C01%5Cclip_image001.gif"

Me-Eric -My repsonse " No it is not. I have the originals, full resolution, With all the EXIF data. Which means all the time stamped data, with my camera data, programmed into the camera and image itself. The web images i have posted are only 600 pixels at the longest side with a resolution of only 72dpi. Printing is done at 240-300 dpi, which means yoou will get a image only about 2 inches wide. "

Artist/DJ "and costly, see ya in small claims court buddy!!! lol "

Me-Eric response " Nope not really, It costs me only a couple of dollars to register a CD/DVD full of images.

It will be costly for the person doing the infringing. Not for me, because my legal fees will be recouped.
Taken from US copyright office at Standford "registration creates a legal presumption that your copyright is valid, and allows you to recover up to $150,000 and possibly lawyer's fees, without having to prove any actual monetary harm

Like I have said from the beginning, Just let me know what the photos will be used for, and pay a reasonable fee for usage. But when someone is using my work for the bettermant of their career individually without paying me and notifying me, I do have a problem with that.

I ask any of you, to call up professional photographer, and ask them how much they would charge to come photograph an event for 4-5 hours or do promo shots for you. I am positive that those prices would make my prices look very cheap"



Artist/DJ: Still the fact of the matter is...(and i know from being rung through the legal a few times in my life) if something as stupid as this were to go to court the judge would simply say to remove the pics from whatever is causing the problem and quit being bitches about it and maybe fine both parties for wasting his/her time.

[jfrancho]

Everybody poops, Eric. Seriously, I think things have deteriorated beyond the point of no return. I'd leave it be, and go ahead, keep taking pictures. Just don't give them away. If they ask for them, name your price.

[IndyJeff]

Artist/DJ: Still the fact of the matter is...(and i know from being rung through the legal a few times in my life) if something as stupid as this were to go to court the judge would simply say to remove the pics from whatever is causing the problem and quit being bitches about it and maybe fine both parties for wasting his/her time. file:///C:%5CDOCUME%7E1%5CEricK%5CLOCALS%7E1%5CTemp%5Cmsoh tml1%5C01%5Cclip_image002.gif


Eric, tell this Artist/DJ guy, in private with no witnesses, that if he doesn't believe he will be sued to go ahead and keep your images up. The hit him with a law suit that will make his head spin and take every dime he has.
I hope he is one of them who lifted the images from your website and removed your watermark. That is a flagrant violation of the US Copyright code.
Just to show you how much this dingbat knows, this will not be a small claims court.....it will be federal court, in front of a federal judge. One thing I learned from my days with ASCAP is, federal judges don't take kindly to people who disobey the law and they take it even more seriously when they flaunt the law and come down on them with a sack full of hammers.

Sad thing tho is, probably the first thing a lawyer will do is send a cease & desist letter which, hopefully Artist/DJ will just tear up and throw away.

[Rigrider]

without going through everything posted here, the best I can offer is this LINK (http://www.templetons.com/brad/copymyths.html)

Aside from that, I'd say hire a lawyer (or at least talk to one) I know that sounds slightly rediculous, but here's the thing. I've seen a million threads with a million replies about copyrights, and usuage rights, and in everyone of them there's people who proclaim the truth to be one side or the otherside, or somewhere in the middle. In the end, if the LAWYER says you're in the right, then he believes he has the ability to defend you if someone should take things that far. And that's the most important thing you can have.

L8r,

[arpi]

i usually visit this page:

http://forum.freeadvice.com/

you can get good advise there from different layers. Before commiti8ng to a lawyer, I would check the old threads in the copyrights section for similar cases to yours (I remember a couple):

http://forum.freeadvice.com/forumdisplay.php?f=39


Cheers