Banned!!! Part 2

Chris Dana wrote in post #5797652
Yes. I'm also pretty sure that if you don't leave, they then have the right to call the police on you for trespassing.

Ding ding, we have a winner...congratulatio​ns, you recieve this smile

As for other posts by others and myself the debate we mentioned wasn't about this case inparticular, just what if's in other situations. Being private land the debate is over quick....

Interesting thread. I am not an authority but I have read quite a bit on this subject and I did stay at a Holiday Inn Express last night...

As I understand it, anyone can shoot from any publicly accessible place so long as they do not violate a person's expectation of privacy. Publicly accessible does not mean "public property". So, as I see it, the OP has every right to shoot the games so long as the public is invited to be on the private property. If the property owner "bans" someone from the property and that person comes back to take more pictures then that person can be charged with trespass but not for taking pictures.

Isn't the issue in this thread more about selling the photos than about taking the photos?

IMHO the pro guy here isn't complaining so much that the OP is shooting and selling as much as he is complaing that he had to pay $1500 to do his shooting and the OP didn't pay anything.
Well if the pro had half a brain he would make sure the league includes a memory mate in their sign up fee. I ran a basketball league for 3 years and $7.50 of each childs fee was for a memory mate. The photographer was paid around $5.50 -$6.00 per kid out of that $7.50. Whatever else he sold, buttons, magnets, extra prints etc etc was where he made his real money. We didn't need a kickback.
In this situation the pro may not be guarenteed sales but, it is pretty much a sure thing that 90% will place a minimum order. The OP on the other hand, has no guarentee either but, he is out there on pure spec (his time of course) hoping to make some sales.
Because the pro guy is using a bad business model and probably not too business savy, he wants to lay the same bad business model on everyone else. Why on earth would you shoot T&I on spec and lay out $1500 to do it? That's wack, plain and simple.
If the league includes the memory mate fee and can make $1.50 - $2.00 per kid they will probably comeout ahead and so will the photographer because eveyone will be buying at least the MM.

The issue over commercial vs editorial photography gets awful confusing around here mostly because people still insist that selling prints to parents is commercial usage. ITS NOT. This is EDITORIAL USE, and the property owner can make any rules they want about what you can do while you are a guest on their field. The only way anyone can stop the OP from taking pictures here is by making it an issue about photography on their private property, and they have every right to tell him to either stop or leave. They have no recourse for the pictures he already took.

amfoto1 wrote in post #5797829
Yes, as I understand the situation from your description, they can ask you to leave their property.

Or they can restrict you from taking photos while on their property.

Or, they can restrict what you can do with the photos you take, while on their property.

Should you refuse, they would have the weight of the law on their side.

This would be true on public property, too, once you venture into using the images you take commercially, which you are doing. You do not have permission to photograph the kiddies and the event - for commercial purposes - no matter who owns or maintains the ground under your feet. Public/private property actually has nothing to do with it at all. Privacy laws do. However, the fact that they do own the real estate is just another arrow in their quiver to use against you and will make it even easier for them to control what you do while there.

And, in the case of kids, be forewarned that the courts tend to be more cautious and bend the rules in favor of protecting the children, sometimes to the detriment of your right to pursue business.

Commercial work is not afforded anywhere near the same freedoms and protections under the law as editorial work. There's "freedom of the press" and "free speech", but not "freedom of business and commercialization". You have stepped into the role of a commercial venture and are in violation of an existing, valid contract between the league and a pro photographer they have hired. There might be a little gray area regarding that agreement because the pro appears to have been hired to do one or two specific types of photographs, while you are offering what might be construed to be another type. However, if the pro is smart they covered that loophole in their contract with the league. In the end, the customers' dollars come out of the same pockets, either way. So, yes, you are probably infringing upon their business and their exclusivity agreement.

Now, I'm not an attorney, so this isn't legal advice, just what I've learned over the years shooting similar subjects and dealing with similar issues.

You might fight this and may even win some access to do what you want to do. But, in the end you won't gain customers by pissing people off .... especially the ones who have some means of restricting your access ... or by creating divisiveness between parents and the board, between board members themselves, or between the board and the other photographer.

If it were me, I'd simply be inviting the other photographer out to coffee for a chat, and see where that goes. I have a feeling, in part from that email exchange, that there is some middle ground here where everyone can be reasonably happy.

Note: The link lauderdalems provided is an excellent resource. But I want to point out that all the references there regarding "Permissions" that I scanned quickly appear to be related to editorial access, not access for commercial purposes. You have to make this distinction. Your access for commercial shooting is not protected under any laws. You may actually help out the other photographer big time, if you get a general ban on photography put in place in response to your actions. Food for thought.

IndyJeff wrote in post #5800711
Because the pro guy is using a bad business model and probably not too business savy, he wants to lay the same bad business model on everyone else. Why on earth would you shoot T&I on spec and lay out $1500 to do it? That's wack, plain and simple.

Thanks, Jeff. I was sort of thinking the same thing.

To the OP:
If he has a legally binding agreement with the league to shoot (no matter action vs T&I) then anything you shoot for sale infringes on his agreement. If it were me you would get a cease and desist letter from my attorney. Plain and simple you are not respecting his agreement with the league. If you were shooting for personal use that would probably be OK. If I have $$$ invested and have someone come and attempt to usurp my income I would be very protective of that territory.

Did you take the time to start a business, get the licenses from the state or local gov't, get a business checking account, business and liability insurance? I think not. The requirements of most of these leagues require that you have a legal business. Get one set up and then compete. If you want to shoot for personal use - no worries. You start to interfere with my business you would get my to see the other side. I think that the contracted pro was pretty restrained actually.

THe licensing fee:
This is not new, has been around for years and is perfectly legal. Try and set up TV cameras at any sports venue from Jr hi on up and see what happens. As long as that league is a private enterprise they have the legal right to control all aspects of it's images, be TV or stills. Comcast and Fox pay schools both public and private licensing fees to cover those sports. Schools and leagues benefit from the added income and help offset the outragous costs to put on sports events, games etc.

Editorial vs commercial access.
I've got news for ya, even the news gets denied access. There is no law that says that a private or public venue must grant access to the media.

This is clearly a for profit commercial venture. As such the public vs private land does not hold water. Public land requires permits and licenses and insurance for commercial usage or ventures. The leagues pay those fees to the local gov't. After which the leagues get to control access. Private clubs, non-profits and such have even more control over access and that is where this particular situation comes into play.

The exchange has said that he cannot sell images he creates without permission and a contract, they have that right. They asked him to take down the sales cart, that ends that.

Cheers,

LBaldwin wrote in post #5801007
To the OP:
If he has a legally binding agreement with the league to shoot (no matter action vs T&I) then anything you shoot for sale infringes on his agreement. If it were me you would get a cease and desist letter from my attorney. Plain and simple you are not respecting his agreement with the league. If you were shooting for personal use that would probably be OK. If I have $$$ invested and have someone come and attempt to usurp my income I would be very protective of that territory.

Did you take the time to start a business, get the licenses from the state or local gov't, get a business checking account, business and liability insurance? I think not. The requirements of most of these leagues require that you have a legal business. Get one set up and then compete. If you want to shoot for personal use - no worries. You start to interfere with my business you would get my to see the other side. I think that the contracted pro was pretty restrained actually.

THe licensing fee:
This is not new, has been around for years and is perfectly legal. Try and set up TV cameras at any sports venue from Jr hi on up and see what happens. As long as that league is a private enterprise they have the legal right to control all aspects of it's images, be TV or stills. Comcast and Fox pay schools both public and private licensing fees to cover those sports. Schools and leagues benefit from the added income and help offset the outragous costs to put on sports events, games etc.

Editorial vs commercial access.
I've got news for ya, even the news gets denied access. There is no law that says that a private or public venue must grant access to the media.

This is clearly a for profit commercial venture. As such the public vs private land does not hold water. Public land requires permits and licenses and insurance for commercial usage or ventures. The leagues pay those fees to the local gov't. After which the leagues get to control access. Private clubs, non-profits and such have even more control over access and that is where this particular situation comes into play.

The exchange has said that he cannot sell images he creates without permission and a contract, they have that right. They asked him to take down the sales cart, that ends that.

Cheers,

Correct me if I'm wrong, but I don't believe the pro in question had any guarantee of exclusivity in his contract? And even if he did, if the league failed to enforce that and stop the OP from shooting, that's their problem. They can tell him not to shoot any more, but there's nothing they can do about him selling images he's already made and holds copyright on. Thankfully, it's not legally possible to enforce a contract between two parties on a third party who had no part in, and wasn't initially even notified of, the contract in question...

I think the question of exclusivity, warrents a closer inspection as well. But the quid pro quo would have to be some sort of agreement at least limiting other photographers from poaching business away from the contracted shooter, otherwise what is the use?

I am pretty confident that the contract stipulates something that does ensure both parties some level of protection from outsiders. The few that I have been involved with
creates arrangemnts so that the contracted photographer is the only one allowed to bring in pro level gear, and studio lighting etc. It allows for members of the school yearbook or newspaper to shoot unimpeded but disallowed Mom's and Dad's to show up at dances with their gear to shoot couples, candids,and groups for sale.
It cost my buddy (he was the contracted company, I just shot for him for cash) about 2200 per year per school. But he could net quite a bit over that if all went well with atendance at dances etc.

I also agree that it is not enforceable on a third party prior to notice. BUT after notice has been given then it is easily enforceable. And since the OP probably did not have the legal right to shoot the kids for commercial usage, I would think it could still be enforceable that way too.

Plain and simple I don't think the OP has a legal right to shoot for money at a private location without a prior written agreement, they can and will ask him to cease and desist. Failing that I think the OP opens himself up to legal liability he is probably ill equipped to financially defend himself against. Remember it does not have to go to court, all they have to do is threaten, and you have to pay to defend yourself= cash out the door.

Me too. It's a stupid way to do business. How about *I* get paid to take the pictures, and *you* might get paid if the fan's buy prints?

dlpasco wrote in post #5800273
Isn't the issue in this thread more about selling the photos than about taking the photos?

Ladies and gentlemen, we have another winner!

Yes, once we cross the line into commercial usage of the photos, the whole scenario changes.

A contract is not the LAW. The OP will NOT face legal liability because he did not follow the other photographer’s (notice I did not say PRO) contract. Even if he has prior notice that a contract exists, unless he signed a contract promising to never, ever shoot pictures again he is not “liable” for breaking any signed contracts as a third party. Any financial liablility/penalty will have to be sought in civil court. Good luck with that. The contracted photographer would have to show certain financial lose caused by the OP, and the OP himself states that he has sold $0.00 in pictures. That would make it very difficult to prove that he hurt sales.

I would agree that the area in question is private property. And, as someone else stated, it is “publically accessible”. Therefore, it is ENTIRELY the private owner’s responsibility to control what happens at the park. They have three choices:
1) Refuse to allow him entry
2) Request that he leave the premises
3) Ban him from the property with the possibility of criminal trespass if he comes back

(No, I am not a lawyer, but I have signed the complaint to put a number of people in jail for just those items)

Would someone please post a link to a law, or even a court ruling, that says selling a print to a non-editorial publication makes it editorial? I can see selling to a magazine/newspaper but I just can’t wrap my mind around selling a print to a kid’s parents making it Editorial in nature. Seems to me that they will buy it and hang it on the wall as decoration, same as if they went to Walmart/Target/Sears and bought a knick knack to hang on the wall. Nobody is going to say that Walmart etc. isn’t involved in a commercial venture because they sold “decorations” of an editorial nature. What would make a kid's picture as a home décor item any different? I’d really like to understand the reasoning behind that. A valid source would be very much appreciated.

Les, you normally make a lot of sense but you are typing way beyond your knowledge here.

LBaldwin wrote in post #5801007
If he has a legally binding agreement with the league to shoot (no matter action vs T&I) then anything you shoot for sale infringes on his agreement.

First of all, the only people required to conform to the terms of a contract are the people who sign the contract (and the organizations they represent). There is no way I can infringe on a contract I did not sign. Exclusivity clauses generally require the client to restrict access to other photographers. If the client fails to do that, it's not the other photographer's fault. But in this case we don't even know if a contract exists, let alone whether it contained an exclusivity clause, or the specific wording of that clause.

Perhaps this is more about respect than about the law, but it's not his responsibility to concern himself with contracts he is not a party to.

You're being presumptuous. In some locations there are very few requirements to have a "legal business", other than to properly report the income. For example, I needed a home occupation permit to start mine, but that's a city ordinance that doesn't apply to unincorporated parts of the county I live in. Business checking accounts and insurance are good business practice but not legally required. Whether someone else has those things is really none of your concern.

The sports organization here probably has the right to make rules regarding who can take what pictures at the events. But it is highly unlikely that the organization has any legal means to prevent photographs from being sold off-premises, whether they were taken in accordance with those rules or not.

Curtis N wrote in post #5805207
Les, you normally make a lot of sense but you are typing way beyond your knowledge here.

Not unusual I've done it before ,vbg>

Agreed and the league by allowing the OP to shoot there did not show due diligiance to prevent the infringment

Agreed again

I think we can safely assume that a contract exists if the pro has taken the steps to pay for access, although we both know that sometimes a handshake is all that takes place

Here I think we can part the sheets. I feel reasonably confident that the OP does not have a declared business started or completely started at this time. Yes I am makeing a few assumptions, but my guess is that this is at most side cash for the OP should he actually make any sales. But my statement was not so much aimed at the process of starting a business as it was to flesh out exactly how much commitment the OP has to professional photography. That is images for sale, not the quality of said images. The costs involved in starting a business are my aim. If I go through the vast expense of setting up a legit business shooting widgets and some other guy shows up at my client and undercuts my business without setting up his buiness than I am at a distinct cash disadvantage by playing by the rules of that area. The OP stated that the contract photographer paid the league, he knows that now, so unless he plays by the same rules of setting up his business, chasing that contract and abiding by the contract as stated than he still is infringing on the others guys business.

The insurance is probably required by the league and a rider that pays the league should something happen

Not so sure that I can agree here either. It depends on how aggressive the league is and how they handle their contracts. New York is probably different than folks in West Virginia. Like I said I have a friend that does school dances at both private and public schools. Some of the contracts are are 8 or 9 pages of gobboldy gook. Included in some of the school dances are releases that each parent must sign prior to the kids attending, the world is a scary place.

Defending a legal matter is expensive the OP needs to consider that once he has been warned about the contract, and move on from there. That is indeed what most of those boilerplate contracts are betting on. "We have the location, we control access, we control contracts etc". Come in with your gear and shoot your kid and perhaps a few more for friends - no worries. Set up an online cart to sell images without paying the league - potential lawsuit.

Which the OP would have to pay to defend. With little or no sales it makes no sense. Most of the time these situations are about the bottom line. The local pro has a contract to shoot for the league. It is not binding on the OP except for sales of the kids images. Without a release from either the kids or the league he has no rights to their commercial value. I just do not think that he can shoot for pay on private property without permission.

Cheers,

I've read BOTH threads on this topic and one question keeps coming to mind. What the hell ever happened to ethics and professional courtesy? If the OP is taking the pictures for his own use no problem, if he starts selling pictures knowing a contract is in place that is unethical and unprofessional in my opinion. If someone were to come to a wedding and covered the shots the contracted photographer "missed" would it be OK for him to pass out business cards with the intent of selling pictures?

The contract was not for action shots. The OP was taking action shots. The "hired" photog, oddly, paid people to let him take pictures.