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FORUMS Post Processing, Marketing & Presenting Photos The Business of Photography 
Thread started 29 Mar 2012 (Thursday) 11:06
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Is this Legal??

 
CoveShooter
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Mar 29, 2012 11:06 |  #1

Hello All,
I had a friend ask me this question today and I knew the best place to get the answer.
He hired a photographer to take his daughter's portrait. No contract . . . only thing he signed was the check to him. The photographer asked him if it would be OK to print an extra copy of the portrait for his own photo studio. They said that would be fine.

Lately he has had a few people come up to him and say that they saw his daughters picture in various offices around town, including a gynecologist! Is it legal for the photographer to use the image in that way without their permission?

Thanks for your help!




  
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Mistabernie
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Mar 29, 2012 11:09 |  #2

I'm not a lawyer. That being said..

While the photographer retains the copyright to the image (including certain usage rights), in order to sell that image in a commercial setting (to other business, etc), he needs a signed model release (and if his daughter is under 18, I believe that model release would have to be signed for by the parents).


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CMfromIL
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Mar 29, 2012 13:26 |  #3

I'm going to say no, and a double ick for the nature in the way the photog is using it. What a maroon.

Your friend should call the physicians office and request it be pulled, as they don't have permission to use the image.


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Mistabernie
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Mar 29, 2012 13:35 |  #4

CMfromIL wrote in post #14175631 (external link)
I'm going to say no, and a double ick for the nature in the way the photog is using it. What a maroon.

Your friend should call the physicians office and request it be pulled, as they don't have permission to use the image.

The friend should inquire with the physician's office to confirm they got the image from the photographer, but at that point, they should be talking to the photographer about unauthorized commercial use. It's photographer's responsibility to have all the necessary paperwork (including model releases) on file when selling their work in situations like this.


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PeaceFire
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Mar 29, 2012 16:06 |  #5

Um... no. Don't have your friend call the physicians office. His issue isn't with the doctor's office. For all you know, this image was purchased by the physician from any number of sources or acquired illegally. Either way, that's the photographer's issue and the friend's issue is with the photographer.

So your friend needs to call this photographer and ask how the image of his daughter is being used, then he needs to work with the photographer to get a contract signed.

It seems as if your friend was very under-educated with this whole deal and the photographer may have actually asked his permission to use the photo for promotional purposes, which your friend then incorrectly interpreted to mean it was going to be used in the studio. If that's the case, then the photographer is in the right (although he SHOULD have a model release).


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CMfromIL
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Mar 29, 2012 16:36 |  #6

Oh heck no. As a father, I'd call BOTH the Dr and the Photographer. I'd be ticked.


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breal101
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Mar 29, 2012 16:38 as a reply to  @ PeaceFire's post |  #7

If we take the information from the OP at face value, this is at the very least unethical and possibly illegal. Of course I'm assuming one thing, that the photographer had something to do with the distribution of the image.

I'll let the other internet lawyers hash out the validity of verbal contracts and the need for a model release in the state where this occurred.


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Kirill
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Mar 29, 2012 16:56 |  #8

Interesting thing - under UCC (uniform commercial code) Physician may have the "clean title" to the artwork he bought from the photographer, even if photographer didn't had the "clean title aka model release" when he was selling the artwork




  
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PeaceFire
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Mar 29, 2012 20:27 |  #9

Kirill wrote in post #14176908 (external link)
Interesting thing - under UCC (uniform commercial code) Physician may have the "clean title" to the artwork he bought from the photographer, even if photographer didn't had the "clean title aka model release" when he was selling the artwork

Exactly. If the physician purchased the image he has every right to use the image in his office, it's not his concern if the image did not have a model release attached, it's the photographers. So, again, the issue is with the photographer and the photographer alone. And if the physician found it online and obtained it illegally then an angry call from a father isn't going to do much, but a letter from the photographer's lawyer will.


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Ray ­ Marrero
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Mar 29, 2012 20:37 |  #10

Okay, was the image sold? Or was it placed there for marketing? If sold, then maybe you could have a case, but if it was placed and no money was exchanged,then the photographer is just advertising and marketing his business.

Client should be aware and have ask how it would be used, and then say, 'no.'


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Dan ­ Marchant
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Mar 30, 2012 03:11 |  #11

CoveShooter wrote in post #14174943 (external link)
Hello All,
Is it legal for the photographer to use the image in that way without their permission?

All the people posting above are doing so without sufficient information, because you haven't told us exactly what way the image is being used.

If these are framed prints, hung on the office wall as decoration, then the photographer is well within their rights. It is perfectly legal to sell prints to someone for them to hang on their wall, even if they happen to look at lady bits for a living.

If, on the other hand, the image has been used in the creation of an advert for these businesses, or is displayed in such a way that it could be reasonably assumed that the person depicted is a satisfied customer/client of the service, then a model release would be needed. Having said that it would be the business using the image that needs the release and not the photographer.


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RDKirk
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Mar 31, 2012 13:07 |  #12

Dan Marchant wrote in post #14179444 (external link)
All the people posting above are doing so without sufficient information, because you haven't told us exactly what way the image is being used.

If these are framed prints, hung on the office wall as decoration, then the photographer is well within their rights. It is perfectly legal to sell prints to someone for them to hang on their wall, even if they happen to look at lady bits for a living.

If, on the other hand, the image has been used in the creation of an advert for these businesses, or is displayed in such a way that it could be reasonably assumed that the person depicted is a satisfied customer/client of the service, then a model release would be needed. Having said that it would be the business using the image that needs the release and not the photographer.

Ding, ding, ding! Right answer.

The photographer does not need a model release to sell an image of a person to another person, nor does either person need a model release to display the image purely as a work of art.

A model release is needed in every state of the US to use a work commercially. There is no state in which "commercial use" includes the sale of the photograph itself.

However, use subsequent to the sale by the purchaser might be deemed "commercial," and that can be a gray situation as far as display in a business is concerned...and the onus is on the user, not the photographer. The photographer is not "using" the image.

There might be some other issues in this case that have nothing to do with "model release" per se. For instance, is there some way it can be construed in court that an enforceable distribution agreement was made as part of the original portrait agreement? If so, that would be a violation of contract. I've had to do that with a good number of my high-end sales...many of those clients don't mind my using their images on display in hardcopy, but don't want them on the Internet.


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Mar 31, 2012 18:01 |  #13

CoveShooter wrote in post #14174943 (external link)
Hello All,
I had a friend ask me this question today and I knew the best place to get the answer *SNIP*

If the best place you know to get legal advice is a photography forum that's your first problem.

CONTACT A LAWYER! They are the only ones that are going to know the legal ins and outs to a situation like this.


Now since you asked I'm going to say your friend is probably SOL since there is no contract saying what can and can't be done with the photograph. The photographer owns the copyright to the photo therefor the right to sell it.


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jra
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Mar 31, 2012 18:20 |  #14

Some good discussion. If I had to take a guess, I would guess that there is simply a mis-understanding going on. I'm guessing that what the photographer had in mind when he asked permission to print the portrait for his studio was to use the portrait as marketing for his studio, not necessarily to use it in the actual studio but that wasn't how your friend understood it. Of course, this could've been prevented with proper paperwork but that's not the issue at this point. If your friend doesn't want his daughter's image being used, a friendly phone call could probably get everyone back on the same page....but that is pure guessing and speculation....

Beyond that, I'm not sure I understand the "shock" about having a photographer display a child's photograph for marketing in a gynecologist's office (as if there is something "dirty" about gynecologists' and I assume shock because of the explanation point but maybe I'm reading it wrong). Many women that are about to give birth visit their gynecologist and it's a prime place to advertise for a baby/child/family photographer.




  
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RDKirk
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Mar 31, 2012 18:33 |  #15

Public display is a major part of my marketing effort, so I make sure to explain my intentions clearly beforehand. I want my clients to be partners in that effort. I want them to tell their friends and be pleased that their portraits are on display. That requires me to get them involved and make sure they're not only accepting but actively enthusiastic about it. As I mentioned, my only problems in this area has been with Internet use...people with community prominence tend to be skittish about Internet use.


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