Banned!!! Maybe, Maybe not.

Selling printed images to private individual's, 8x10's, etc, is a commercial enterprise, right? If they are offering to sell parents a photo of the team, then it stands to reason that the parents of each kid in the photo should have signed a release form to allow it. Right?

snyper77 wrote in post #5775850
I was told that the Exchange Club owns the land where the games are played, which makes it private property (I think). Maybe you all can shed some light on this as well: The Exchange Club is a tax exempt club. A friend of mine looked up some legal info on tax exempt status and allowing people exclusive rights to come there and make a profit is against the law. Here is what he found:

What is private inurement?

Private inurement is prohibited in all nonprofits. It happens when an insider — an individual who has significant influence over the organization — enters into an arrangement with the nonprofit and receives benefits greater than she or he provides in return.

The most common example is excessive compensation, which the IRS condemns through intermediate sanctions (significant excise taxes). Insiders — referred to in IRS parlance as "disqualified persons" — can be high-level managers, board members, founders, major donors, highest paid employees, family members of any of the above, and a business where the listed persons own more than 35 percent of an interest.

Private inurement is an absolute term. There is no de minimis restriction. If a nonprofit is organized to benefit an individual, even while fulfilling its tax-exempt purpose, it cannot be a tax-exempt organization. Under the state law, an organization may lose its nonprofit status. <end>

So, for the Exchange Club to have a "buddy buddy" system, can I report them and they lose their tax exempt status?

It is possible. I would contact the IRS and advise them of the situation. Let their investigators make the ruling, anyone who is NOT a tax expert (or IRS investigator) is only giving you their opinion. The fact is that organizations have LOST their 501(c)(3) status. The key, I believe, is if any of the proceeds of this arrangement with the studio are paid to insiders such as officers, directors, or employees. This is absolute and ANY payment or sale of the afore mentioend kind would allow the IRS to strip their tax exempt status.

I don't believe a buddy system qualifies unless of course the studio is giving a kickback to any members of the league for giving him the contract.

Now we come to an interesting and somewhat more complex area of the topic.... the UNRELATED BUSINESS INCOME.

For this I will have to quote from http://nonprofit.about​.com …itbasics/a/lose​exempt.htm

BEGIN QUOTE

Activities that generate too much unrelated business income (UBI)

The area of UBI is complex but basically it means that your organization may not receive income from a regularly-carried-on trade or business that is not related to your mission. If you generate funds from a business activity but it is not regular, you will probably have to pay taxes on that income but it won't jeopardize your tax-exempt status. An example would be selling merchandise once a year at a fair.

If your organization earns more than $1000 during the year, it must file IRS form 990-T, Exempt Organization Business Income Tax Return. Too much UBI can threaten your tax-exempt status. You could be in trouble if UBI takes up more time and attention than your mission. The IRS provides an excellent online tutorial on UBI that goes into the intricacies of this kind of income.

The best course to follow in order to make sure your tax-exempt status is never taken away is to focus on your mission...the reason your organization was founded...and make sure that all of your activities revolve around that purpose.

END QUOTE

Again if you are seriously wanting to pursue this I would contact the local IRS office and give them a breakdown of the situation and ask them. In truth they are the only ones that can really comment officially on what does or does not constitute a tax violation.

Heck, the league may be claiming the income from the studio on their taxes which would make this moot.

My opinion is they should not be "tax exempt" if they do not meet the requirements of such. Heck we all have to pay taxes, alot of taxes, and I don't see why an organization should be "tax exempt" if they are not not following the rules of that classification.

snyper77 wrote in post #5777543
Before they voted on me, they asked me if I'd be interested in bidding against the pro studio for next year's T&I shots. I said "No, I am not here to hurt anyone like that". But after thinking it over... and seeing how the pro studio has pushed me around by having me banned from taking/selling action shots, I emailed the head board member back and said "You mentioned something about taking bids next year. I believe I may be interested."

I'm not sure if I'd be way in over my head, but I'd work my *** off to do a dang good job!

One really good thing about doing T&I is interacting with the parents and cross promotion - with the portrait packages I include a promotional postcard letting them know about re-orders and where they can find action shots - so it promotes the game shots on top of making $$ from the T&I as well while getting to know the parents and kids better.

c71clark wrote in post #5778226
Selling printed images to private individual's, 8x10's, etc, is a commercial enterprise, right? If they are offering to sell parents a photo of the team, then it stands to reason that the parents of each kid in the photo should have signed a release form to allow it. Right?

See previous posts, because that is not correct. You'd have a point if say the photog made up mugs with the picture on it and tried to sell them pre-made, but not if the parents are the ones putting the image on the mug. Printed images (prints) are considered editorial in the U.S. as long as you obtained them legally and being the league photog under contract they did. He/she could make prints beforehand and sell them legally, when he/she starts putting them on other merchandise there could be a problem with releases as that's merchandise and no longer falls under editorial.

Another example, if you go to a MLB, NFL, NHL, NCAA, NBA, etc. game you cannot sell those images you take - sure you can use them for personal reasons but not prints. High schools and youth sports is no different, it just hasn't been enforced for the most part because 10 years ago not everyone thought they were a photographer. Now people buy a camera and think they are and they can shoot whatever they want any time, that's far from the truth.

BISHOPP
Good point on how they are claiming the income, if they are claiming it as a donation and putting the money towards there cause or if a higher up is taking it for some spending money. I'm sure they know that and claim it correctly as it's probably such an insignificant amount they wouldn't want to lose there status over it....but then again you just never know!

MJPhotos24 wrote in post #5779560
See previous posts, because that is not correct. You'd have a point if say the photog made up mugs with the picture on it and tried to sell them pre-made, but not if the parents are the ones putting the image on the mug. Printed images (prints) are considered editorial in the U.S. as long as you obtained them legally and being the league photog under contract they did. He/she could make prints beforehand and sell them legally, when he/she starts putting them on other merchandise there could be a problem with releases as that's merchandise and no longer falls under editorial.

Another example, if you go to a MLB, NFL, NHL, NCAA, NBA, etc. game you cannot sell those images you take - sure you can use them for personal reasons but not prints. High schools and youth sports is no different, it just hasn't been enforced for the most part because 10 years ago not everyone thought they were a photographer. Now people buy a camera and think they are and they can shoot whatever they want any time, that's far from the truth.

Wait, how is selling 8x10's of a group of kids or a single kid (because I don't see why people could not buy pics of thier child's best friend too) for profit to *private individual's* from a baseball team any different from me taking a picture anywhere else and selling the picture? The playground, a gym, a school, from a studio, etc? No one said the pictures were being sold to a newspaper or magazine. The talk is selling them to private individual's. Even the mug should be suspect. You are buying the image AND the mug, and you happen to have the photo put on the mug.
Let's say I had a daughter on a soccer team. I would not be very happy to know that a photographer is making money selling my daughters picture to anyone who will fork over the dough without my permission.

Is there some sort of clause in a contract when signing your kid up for the sport that waives parents right's to control the distribution of their minor child's image?

c71clark wrote in post #5782239
Wait, how is selling 8x10's of a group of kids or a single kid (because I don't see why people could not buy pics of thier child's best friend too) for profit to *private individual's* from a baseball team any different from me taking a picture anywhere else and selling the picture? The playground, a gym, a school, from a studio, etc? No one said the pictures were being sold to a newspaper or magazine. The talk is selling them to private individual's. Even the mug should be suspect. You are buying the image AND the mug, and you happen to have the photo put on the mug.
Let's say I had a daughter on a soccer team. I would not be very happy to know that a photographer is making money selling my daughters picture to anyone who will fork over the dough without my permission.

Is there some sort of clause in a contract when signing your kid up for the sport that waives parents right's to control the distribution of their minor child's image?

There's a clause in the U.S. government that says prints are considered editorial. If the photog had permission to shoot then he can sell prints as editorial as long as the league said he can because they own the league and what the photog captured in those images (trademarks, logos, etc). The difference is permissions, what you have and what you don't. The local youth league for example - I have permission to sell T&I and all action shots, you couldn't come in and do it on your own because the league won't give you permission (it's exclusive). The other places you mentioned then it goes back to public vs. private and if the person was in a place expecting privacy (the gym, school, etc).

Technically someone not related can buy a print of your daughter from the photog if he chose to sell it to them being the league photog, or having permission from the league to sell prints. Is it good practice on the photographers part not to find out if the person is related or not? Not really, but they can sell the image as it's editorial as long as they're not making merchandise using the image (t-shirts, mugs, etc).

My uncle owns a local pub, the manager of the place wants to buy a bunch of images from me of local kids in high school playing sports to hang on the walls since it's a sports bar and they are HUGE supporters of local sports. I can sell those prints without a model release...I cannot make t-shirts using the images and sell those however as that would be commercial.

The mugs I already explained as being in question (as well as any merchandise). Usually it's a parent buying that stuff so they are putting the image on the mug, not a random stranger. If a stranger randomly bought one then there might be some problems with it becoming commercial for sure.

So I shoot pictures at a local girls gymnastic school event with the gym's permission, and I can then sell the pictures of these girls to perverts on the internet. Why does that sound a little off?

MJPhotos24 wrote in post #5783921
There's a clause in the U.S. government that says prints are considered editorial.

This will be news to the industry if really true. There are so many other clauses that would be essentially nullified if the media used for the image is the determining factor for usage.

Companies could then just make 16x20 prints instead of duratrans, posters, printed materials, etc, to avoid paying the talent usage (yes, models get usage fees too). That would allow GM to use prints instead of offset printing to get around advertising usage, since it will now be considered editorial because it was put on a print.

I think a fact check is in order, since it would be a huge loophole in all the current laws. Do you have a reference to that clause, or even other reliable sources referring to it?

sfaust wrote in post #5785234
This will be news to the industry if really true. There are so many other clauses that would be essentially nullified if the media used for the image is the determining factor for usage.

Companies could then just make 16x20 prints instead of duratrans, posters, printed materials, etc, to avoid paying the talent usage (yes, models get usage fees too). That would allow GM to use prints instead of offset printing to get around advertising usage, since it will now be considered editorial because it was put on a print.

I think a fact check is in order, since it would be a huge loophole in all the current laws. Do you have a reference to that clause, or even other reliable sources referring to it?

Companies using those images would be deemed commercial as they are using it to sell a product.

cory1848 wrote in post #5785346
Companies using those images would be deemed commercial as they are using it to sell a product.

Exactly. It's the 'use of the image' that determines commercial, editorial, or fair use. Not what media it is printed on, as suggested. And that's why I question the statement that there is a government clause that states prints are considered editorial. They can be editorial, fine art, commercial, advertising, and so on, and every law I've seen regarding privacy, copyright, etc, have all determined 'use' as the deciding factor.

sfaust wrote in post #5785432
Exactly. It's the 'use of the image' that determines commercial, editorial, or fair use. Not what media it is printed on, as suggested. And that's why I question the statement that there is a government clause that states prints are considered editorial. They can be editorial, fine art, commercial, advertising, and so on, and every law I've seen regarding privacy, copyright, etc, have all determined 'use' as the deciding factor.

I think he is meaning prints being sold to parents, not to a commercial avenue that is using them to sell a product.
Why would someone need a release of a kid that the parent is buying? I mean if the parent is wanting to buy the photo, obviously they would sign a release for it or they wont get the photo.
Any commerical company wanting to use the image would have to clear copyright usage anyways so that company wouldnt use it without contacting the photog first for rates. It would be at that time that the photog would say yes, use it (release on file) or no you cant (no release on file).

If your contracted with the league, it would make sense to have that release in your contract and have the league put that release in the liability waiver that the kids sign at the beginning of the season, then there are no worries.

sfaust wrote in post #5785234
This will be news to the industry if really true. There are so many other clauses that would be essentially nullified if the media used for the image is the determining factor for usage.

Companies could then just make 16x20 prints instead of duratrans, posters, printed materials, etc, to avoid paying the talent usage (yes, models get usage fees too). That would allow GM to use prints instead of offset printing to get around advertising usage, since it will now be considered editorial because it was put on a print.

I think a fact check is in order, since it would be a huge loophole in all the current laws. Do you have a reference to that clause, or even other reliable sources referring to it?

Old news if news as you're missing the point kinda and that may be a lack of explanation on my part. If GM is using prints for advertising purposes then it's commercial usage, posters are commercial usage, merchanise or anything SELLING a product are commercial usage. A print itself is not a commercial usage if news worthy like a game or events happening if the photog has the right to shoot the event (back to public vs. private). A model wearing a bikini sitting on a chevy at a dealership to influence a sale = commercial. Little Timmy running to first base in league you had permission to sell prints = editorial. The interesting twist is little Timmy running to first base in a league you did not have permission to shoot = ??

There's a company that's challenging major sports (MLB,NFL, etc) about that right now saying since prints are editorial and the games are news they should have the right to sell them without licensing - of course the major sports say no that's our trademarks in the images and you can't do that. Not sure how the battles going as it hasn't reached the courts but will be interesting. To end it though the major sports will just put more limits and make photogs sign contracts-----oh wait, they do that already.

cory1848 wrote in post #5785466
I think he is meaning prints being sold to parents, not to a commercial avenue that is using them to sell a product.
Why would someone need a release of a kid that the parent is buying? I mean if the parent is wanting to buy the photo, obviously they would sign a release for it or they wont get the photo.

Could be, but he was clearly talking about more than just selling the print to the parents ). My main point was in challenging the statement that selling prints is considered editorial as he suggested, and that there was a government clause stating so. I believe that is very incorrect, and was clarifying that point by using the commercial use example of 8x10's, which you also picked up on.

Selling prints of a kid to the parents clearly doesn't need a release. Technically, selling images of a one of the players to other third parties can indeed be a commercial venture where a release is needed. But it can also be considered fine art, fair use, or editorial. It depends on how that print is used, and not some government clause that says 8x10's are considered editorial content.

For much the same reason business are technically required to pay for music they play in their stores (the reason we hear far too much elevator music ), selling prints for display in a business establishment can also be deeded a commercial use. Is it significant for one sports bar? Probably not, but technically yes. For 10 quite possibly. For 100, absolutely. It's just incorrect to state that because they are prints, they are considered editorial, and leaving people with the impression they can make up 16x20 'prints' and sell them as posters because they are 'prints' and therefore considered editorial by a government clause. Further, rights of privacy are not federal, but at he state level. What's true in one state could be totally different in another.

Another point is what the leagues can and can not grant to the photographer. No one can give away a persons rights, but the person themselves. A league can not allow a photographer to use images of a player in their portfolio, to promote themselves on their website, to make business cards with that players likeness on it, make posters for sale, etc. They don't have the right to do so.

If the league is smart enough to hire an intellectual property attorney, and draw their waivers to include assigning those rights from the players to the league, and giving the league the rights to reassign those rights to other third parties, its possible they can grant those rights to the photographer. But I doubt most people that actually read the contract would go ahead and sign it as it would have to be written. It would raise a lot of eyebrows. The photographer would have have to be legally savvy enough to read both contracts, and parse the legalese properly, and know one contract doesn't invalidate clauses of the other. Messy to say the least, and only the big leagues seem to really have it sorted out. Even then, with their teams of lawyers, there always seems to be issues they dig up to argue back and forth about I think its just lawyers insuring job secuirty

But a reality check... most players would be proud to have a photo of the them hung in a sports bar. Human nature, I know I would. So the risk of any real issues is really pretty slim, and I personally wouldn't worry about it too much. But if a parent ever got pissy about it, I would take me about 1.23 seconds to remove the image from a gallery, display, print, stop whatever they are complaining about, or whatever. The law would be on their side, and I just wouldn't want to push the envelope.

I did get the point, I just don't agree with it based on the copyright laws which define usages, and those on rights of privacy.

MJPhotos24 wrote in post #5785667
A print itself is not a commercial usage if news worthy like a game or events happening if the photog has the right to shoot the event (back to public vs. private).

Thats not correct.

It has nothing to do with whether or not the subject matter is newsworthy.
It has nothing to do with what permissions photographer has from the league.
It has nothing to do with whether the event is public or private.

Commercial, editorial, fair use, etc, as written in law is not hinged on permissions given to the photographer, whether its public or private, or whether its newsworthy. Its all about how the image is used, which will determine its use status, and where the term 'usage' pretty much comes from.

If I read your statement, it suggests that if a print is newsworthy, it was on private property, I had the owners permission to shoot it, then it's not commercial use. So if those three things are true, I can then use that print to make posters and give it away with every case of beer I sell, since I meet all of your conditions in that statement. But this isn't the case.

Simply put, if you use a print in a commercial use, its commercial, if you use it in an editorial use, its editorial, and so on. Whether the league gives you permission to shoot it, or its newsworthy, or on private or public land will not change the 'use status' of that print. It's clearly written this way, and the industry marches to that tune.

This is a trademark and property rights issue, and not usage and/or privacy. Two very different matters, and it seems you are mixing them together and coming up with incorrect conclusions.

If you read the copyright laws, they define 'usage' quite clearly, and they show quite clearly that how the image is used defines usage, such as in commercial, editorial, and so forth. If you read the laws regarding rights of privacy, those are clearly driven by the persons right to control the use of their image and likeness.

They are connected in the sense that rights may be limited by depending on the usage, or that usage may be limited because of a person rights, but neither of them will re-define the classification of the other.

I am gld I wasn't the only one to see something hinky. I am far from a wise and salty 'Tog, but my understanding was that any time you SELL a picture of a person (and even certain places, and regardless of how it is presented) to a individual or corporation (except newspapers and magazines), you will likely need a model release. Selling a pprint is Commercial use. You make money= commercial.

This line of thought came up due to thebishopp asking if not having the parents sign releases might allow for a lawsuit.

Well I'm not a pro nor even a very good amateur photographer, but what I see here (esp. w/ the company challenging the OP) is people being dragged kicking and screaming into the digital age, where suddenly a parent can buy a pretty good DLSR, and if sufficiently skilled take some decent photos, and easily post them on a web site for sale. Back in the analog age, this simply would not have been worth your average person's time, not too mention that the Kodak didn't really compete with the pro's. (Though I should add if I had ever been challenged about taking pictures of my kids playing soccer I would have raised a helluva stink. Wha? I can't take picture of my own kids? Sounds Commie to me.)

I'm no lawyer, but I'd say law has not resolved this yet and we've got a long way to go. As usual, there will be offended and offending parties and lawyers will make a ton of money while the interested parties suffer.

As to how would it feel to have your job threatened? I work for a software company, and my job is threatened daily by offshore workers who can and will be hired for half what I make (still double what they would make in their home country). That threat fortunately hasn't happened to me personally (though don't bring this up with anyone who's been replaced by an HB1 or whatever it is visa holder). That's the new world order, folks.

For anyone who's in a creative/commercial enterprise (photography, writing, music, you name it), look out.

Again, my interests are strictly amateur. I like to take pictures on public and I suppose what could be considered private grounds. I would hate to think that the opportunity to make a dollar or two of of those efforts, if they ever in my case turn out to be compelling, would be quashed in a country based on, supposedly, free enterprise. Just my two cents.

And yes, I have countless T&I photos of my kids from back in the day....