Image use W/O Permission

Here's the deal:

I was browsing through some magazines at my workplace, and came across an image in a certain magazine (which I wont name... no, not pornographic) that looked oddly familiar. Not the image itself, but the person in the image. The picture is of a friend of mine at his workplace, working on his car (it's one of the big oil change companies). The licence plate has been blocked out, but it is very obviously him and (and I recognized his car easily).

Now here's the thing. I showed him this picture in the magazine, and he recalls the time it was taken. Some managers from his company came into the workplace, and simply took pictures, without letting the employees know what they were for, or asking for them to sign any sort of documentation or legal release forms. He did not in any way, shape, or form, consent to the publication of this image in the magazine.

What is he to do, and who is liable? His employer, or the magazine?

It depends on what the laws are in Canada. Here in the states, employers (or someone for management) take pictures in the work place all the time and they don't need to get permission to use them... of course it depends on how they use them and here in the states anyone can sue anyone else if they want, regardless of if they are legally right or not.

If there are not any specific Canadian laws that pertect him from having his picture taken in the work place and used, then it's probably just a matter of how much he wants to push it. In the US, most magazines usually will want a release from all recognizable people, even if it's taken in public where they are needed. This is just to cover themselves in case one of the people complains later. It's hard to have a case when you signed a release knowing that your image was going to get used for something. But it's hard to say in your friends case.

Mike

Not sure about Canadian law but, in US law if it is an advertisment they should have gotten a release before they used it, employee or not.

If it is a story in the magazine about oil changing places then, it is editorial and no release is needed.

So which was it, advertising or editorial?

It is a story in a Canadian franchising magazine about oil-change franchises, and their success.

Thanks for your help guys. As a precaution, my friend will be asking one of the law teachers on our campus.

Cheers.

It is editorial so there is no violation of any law.

Sounds to me that it is editorial in nature.

I did a stint in a division of the marketing department for a large Canadian company where we were responsible for putting together articles of interest that would go outside of the company. We would regularly send around one of our staff photographers (I was not one of them) after notifying the department manager that it was going to happen. The only time I ever saw a release was when one particular photo was used in a national ad campaign. Other than we never asked permission for photos taken of employees while on active duty.

Jeff and ssim are right, its editorial, so releases arent necessary.

However, this statement:

Is NOT true.

If its to be used for any commercial use, like advertising, then a release MUST be obtained, employee or not. Also there MUST be some type of compensation to be legal as well.

When I work with a company that uses their employees in photos that are used for advertising and PR purposes, they have the employee sign a release and they pay them $1 to make it all legal. We have had employees decline to sign the release and we find replacements or employees that will agree to be used. We even had a hotel manager stand in for someone working in their coffee shop in the hotel because none of the folks working the coffee counter would sign the release.

Better safe than sorry, get those releases.


But in this case, I think your buddy is out of luck.

VWPILOT is absolutely correct. Having shot for all of the major automtive manufacturers over the last 35 years, I can tell you it is critical to get model releases on ANY shot/video/film that has non-management people in it and is to be used for commercial purposes.

Employees images are private property, the one exception possibly...ongoing news events.

vwpilot wrote in post #2299517
Jeff and ssim are right, its editorial, so releases arent necessary.

However, this statement:

Is NOT true.

If its to be used for any commercial use, like advertising, then a release MUST be obtained, employee or not. Also there MUST be some type of compensation to be legal as well.

Better safe than sorry, get those releases.


But in this case, I think your buddy is out of luck.

Sorry, I disagree with you disagreening with me. Is that a double negative?

You don't need a release and you don't need to compensate the subjects for their particapation. Having the employees sign one just because and because it's required are two different things. That doesn't mean it's not a good idea but it is not required by law. It doesn't mean that a person in one of the prints still can't sue, even if you got a release from them. That's their right to do so if they feel the way they were protrayed is not how they like... for instance showing someone drunk or sleeping on the job as part of a safety ad when the person wasn't that way at all, it was just how the picture turned out and they didn't know that was the one they were going to use or how they were going to use it. Even with a release, they might have a case.

We regularly use our employees as part of our ad brochures and information that is sent to active and potenially active customers. The people were asked if they wanted to be part of the photos and they said yes. No release or payments were made.

A civil issue only becomes an issue when one or both parties decide to take it to court. A criminal issue is a different story. And as far as I know, in most cases, using someone in your image without their permission is a civil matter, not a criminal one.

Let me make it clear though that I am not a lawyer and I won't charge you $200 an hour for my advice. But if you feel like paying...

Mike

Sounds editorial. If it were commercial it would also depend on what is in the employment contract. Some companies have that kind of stuff in the paperwork when you're hired.

Mike, you're wrong. I'd check with an IP lawyer if I were you.

Just because someone is an employee of yours does NOT give you the right to use their image in any way you want to use it...period...no agreement necessary.

If they decide to sue you for using their image without their consent and you do not have a model release, you can be screwed.

You're right, my wording might be wrong, its not required. You can certainly take a photo without one, however, it is needed if you want to protect yourself. You DO NOT have the right to use their images for commercial purposes and if they decide they want to sue, you will be required to produce it very quickly. Even if they said that it was ok, without a written release, they can change their mind and you could be in real trouble.

Its not criminal, like you mention, but it does violate their rights to privacy and without a release they have a hell of a civil case against you.

For something as easy to have as a model realease, I dont understand why you would not even begin to have people sign it, especially if they are as willing to do it as you mention.

Same thing here Jeff, so I guess it's pretty much same thing all over world... I guess including Canada

Magazine = editorial use = no release needed.

Claire not exactly It might be advertisement in magazine And to be honest, I don't really know where PR articles go. Do they go under commercial or editorial? Based on journalism ethics it's definitely not editorial, but based on law it might actually fit under editorial.

Heh, of course if it's advertisement, then it's not editorial. But if it's accompanying an article it is. PR articles are tricky. I think that'd be thought of as editorial because of its context, to the viewer it's not seen as advertising as the reader don't know it's a PR company who wrote it...