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Old 12th of May 2005 (Thu)   #1
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IndyJeff's Avatar
Join Date: Oct 2003
Location: Indianapolis, IN
Posts: 1,892
Default When do I need a Release?

After reading thread after thread of people asking if they need a release or not and then, seeing advice which is anything but correct, has promted me to post these simple guidelines.

When do I need a release?

When you take a picture of someone or something and plan on selling it commercially for use in ads, for example, you need a release. It is not your image or property and everyone has a right to control the uses of both.

I want to shoot the local high school and sell to the players and parents. Do I need a release?

Technically, yes you might. However there is a thing called undue burden which could exempt you from getting a signed release from all athletes. In general your selling the images to the people themselves. Very few of these type images are bought by anyone other than the people in them.

What if I am selling photos I took of __________ (fill in the blank). Can I be sued?

Yes but, they must ask you to stop first. This is done in a letter known as a Cease & Desist. If you ignore it and continue to sell, then yes, you may very well be sued, and damn well you should be. They asked you to stop didn't they?

I shot ________ (fill in the blank), which was a public event. Can I sell these photos to the newpaper? I didn't get any signed releases? Can I sell them from my website?

So what if it was public or not, remember in the first answer above, EVERYONE HAS A RIGHT TO CONTROL THEIR IMAGE.
Yes, you can sell to the newspaper if, and only if, the images will be used in an editorial manner related to an article or as a filler with a caption that relates an accurate and true discription of the image. Doesn't matter if it is Johnny Depp the actor or Johnny Drip from down the street...editorial is fair game, for everyone.
If you had permission of the event organizer then yes, you may make those images available for purchase. However, once again remember, everyone controls the right to their own image and if they request you remove thier image you must.

I have been approached by XYZ company and they want to use one of my photos for an ad. I have no idea of who the people are that are the subject of the photo. Can I still sell this for the ad?

NO, absolutely not. What if the company tells you it will be an ad for fragrances with names which relate to young women. So you sell the image of two girls sitting on a park bench talking with fantastic floral gardens behind them and they are thinking they will use it for the one called "Spring Park". The ad comes out and it is about asking your girlfriend for her personal preference in condoms. Big difference huh? Guess who will probably get sued? Besides the ad company, the company making the fragrences, and you will be very high on the list for providing the image without a release. Now damges from that could be extensive, enough to ruin your life.

I went to the race track Sunday and got some great pictures. One of the sponsors wants to use it in an ad. Can I sell it to them?

Once again the answer is NO. Sure they can probably get a signed relase from the car owner, and the driver but, they will also need a release from the sanctioning body as well. Once they present you with a signed release, or a copy thereof, from the sanctioning body, the driver, and the car owner then, and only then are you in the clear.

I went to _______ pro/college game this weekend and got some great shots from my seats. Can I sell these from my website?

Are you nuts? Heck no you can't sell them, well at least not without getting a C&D letter followed by a lawsuit if you persist in continuing to sell them.

When do I need a release?

Anytime you sell an image which may be used in an ad or other display to attract business, other than editorial use. See undue burden above which may apply here.

Someone lifted one of my shots from my website, and is using it without permission on their website. It says right on my website "all images are the property of Rube Willoughby" or "all images are copyrighted" can I sue them or should I just send them a bill.

Did you register the images with the US Copyright Office? If not, your not standing on very firm ground. While you may own the image, legally, the law only allows for actual damages. Now if they normally pay $25 for a published picture, thats about all your going to get. No lawyer is gong to even consider taking that case.
If they are registered, the law allows for a greater amount of money. including reasonable attorney fees and court costs as well as punitive damages. I this case you will have plenty of attorneys wanting to talk with you.
Never, ever send them a bill without consulting with your attorney first. You are establishing a value to the image. What if they call you up and tell you to stick it where the sun don't shine? You call the attorney and tell him of the invoice and the amount. He may not be willing to take the case now that a value has been established by you which could limit your damage awards.

I need legal advice.

First off, you should never, ever, ever, take legal advice from someone posting on an internet forum. Today I am an attorney, tomorrow I might be a Hollywood producer and the next day a Doctor. Soon I may be a divorce councilor, who knows?
If you are serious about photography and the business side of it, take an afternoon and get an appointment with a local IP attorney, whether you need them now or not. Usually a first consultation is free, between 30-60 minutes. Explain that you need to establish a relationship with an attorney should the need for their services arise but, you do have some questions now.
Get to know this guy/gal. Maybe some company will send you a contract to sign before you do some work for them. It makes about as much sense to you as hyroglyphics (Ancient Egyptian writing) but, it all looks good. Your attorney may take a look and say all is good. No problem, probably cost you $50-75. He may also look and say "Whoooaaaaaa. what is this? Don't sign this under any circumstances. See this phrase, 'XYZ company is released from any and all damages or claims against it or any of it's agents for any reason in regards to images sold by your name here'? Something goes wrong and you just signed away any recourse you have to come back on them in case your sued over that image." Now just think if you were told it was for an ad for a fragrance called Spring Park and was of two girls you shot last spring in the park and the actual ad was for Her Choice Condoms. How much was that $75 consultation fee really worth?

Last edited by IndyJeff : 12th of May 2005 (Thu) at 02:58.
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