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FORUMS Post Processing, Marketing & Presenting Photos The Business of Photography 
Thread started 26 Jul 2008 (Saturday) 19:57
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Release needed for portfolio shots?

 
Ledrak
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Jul 29, 2008 11:46 |  #16

Tumeg wrote in post #6006832 (external link)
Just thought of another twist\question, under this same category:

I am a second shooter\assistant. I have grabbed many great shots from weddings,and a few seniors. Am I allowed to be posting these on my site? I don't (personally) have a model release for anyone. But the photographer I work for, does.
So, do I still need to grab a model release from the people that are in the pictures I have\want to have on my site? Or do I just need to have the main photographers name somewhere on the photo?

I can't speak much for wedding stuff because I strictly work with models. But when I do shoots... anyone working with me that's shooting anything is covered under my company's signed releases, and everything they shoot belongs to me. Period.

If someone wants to use any of the pics from one of my shoots, then they would need my permission to do so. Now, if one of my photographers brought along a point and shoot and wanted to snap a few friendly shots, I probably wouldn't mind.




  
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sfaust
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Jul 29, 2008 15:27 |  #17

If you ask a lawyer, they will most likely tell you to get a release.

If you want to show off your work (printed book or on-line gallery) you can probably get away without a release. It can be argued its a form of artistic expression, and thus non-commercial.

If you are also soliciting new business while showing the gallery, it's then a form of advertising and can be argued that its a form of commercial use. In that case, you want to have a release to cover yourself.

The line hasn't been definitively set in the courts, so its a slippery slope and you wouldn't want to be stuck in that mess while paying legal fees.

But I can give you one piece of advice that will cover you in any event.

"If in doubt, get a release!"


Stephen
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Jul 30, 2008 10:18 |  #18

random shots and not shots of planned subjects which I would already have a release for.

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Jul 30, 2008 11:40 |  #19

From the millions of discussions, including some q&a sections with real lawyers, portfolio use is permitted even if the portfolio is publicly viewable. You cannot sell the images in any way (perhaps a limited edition type deal, but that's a gray area), but you can use it for your portfolio.


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sfaust
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Jul 30, 2008 19:34 |  #20

basroil wrote in post #6013729 (external link)
From the millions of discussions, including some q&a sections with real lawyers, portfolio use is permitted even if the portfolio is publicly viewable. You cannot sell the images in any way (perhaps a limited edition type deal, but that's a gray area), but you can use it for your portfolio.

I've been hearing it both ways for years, even from those in knowledgeable positions. Some say you can, others say you can't. They tend to define an artists portfolio differently from a business portfolio, stating that displaying an artists portfolio is fine, but when its a business it falls into the commercial definition.

Ie, if Verizon uses an image to promote their services in order to entice others to also use their services at a cost, is no different than a photographer using an image to entice others to use their services at a cost. But, an artist that isn't offering his portfolio as a way to generate business, is merely displaying their work and it does not constitute a commercial use.

Without case law, it is a gray line and people will be arguing on both sides of the issue. Until a couple cases are won/lost to define that line, its prudent to err on the safe side so we don't end up being one of the defining cases (ouch!).

If want to see how fun it can be trying to define this without a legal background, read this;

http://caselaw.lp.find​law.com/cacodes/civ/33​44-3346.html (external link)

There are parts that you could argue show its a non-commercial use. There are also parts that show it is a commercial use. And when there are valid legal viewpoints on both sides, its gets real expensive to watch that played out in court if its on your dime.

If you really want an answer, check your local state privacy and publicity laws, then find an attorney that practices in that area and consult with them. Any answer you get here will be subjective at best, and not backed up by any relevant case law from your state.

If you just want a safe answer, most anyone will tell you without hesitation, "Get a release!". If not, ask them if they are positive enough to pay your legal expenses if they are wrong, and get it in writing! Its easy to gamble with other peoples money ;)


Stephen
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amfoto1
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Jul 31, 2008 16:56 |  #21

There is a difference between Verison using a photo illustration in an ad to sell their services and me showing a photo in my portfolio as a sample of my work.

In the Verison example, the implication is that the happy person in the ad is enjoying themselves because Verizon is such a wonderful company and offers such great products. The implication is that the happy chap in the photo is a spokesperson.

Now, in the case of my actual, physical portfolio, I'm certain there's no problem showing photos I have taken, with or without releases.

My main concern is an online portfolio. If you were to put someone's image there without their permission, they might be successful suing you for invasion of privacy. The difference is that it's very broadly and widely publicly accessible, not limited to just the relatively select and small number of people I'm able to share my actual, physical portfolio with. As far as I know, this hasn't been litigated yet.

And, at the same time, there are is no release required when posting event photos online for people to peruse and buy prints of themselves or family members. I suppose if someone ever objected to having their photo on the Internet, you might be obliged to remove it. I guess I don't see how this, which I know doesn't require a release, differs from putting your portfolio online.

This is similar, I think, to Dan Heller's point about a photo taken under contract to do portraiture of an individual, that's later used for editorial purposes. The person who hired you to take the photo did not intend it be sold for editorial purposes, so you had better have a release for it, too.

It's quite clear and been proven a number of times that sales of fine art prints is does not require a release here in the U.S. This is considered Freedom of Speech and is Constitutionally protected. Courts would weigh the right of privacy against the right of free speech, and the latter would nearly always win out unless it were a particularly onerous situation.

It's a bit different with a celebrity, whose face and fame are their meal ticket. There you should have a release in all but the most clearly editorial situations, and sometimes even then (say if you were hired to make their portrait).

And, there's a distinction between a fine art print - made in limited edition and only available directly from the artist or at a limited number of outlets - and a large press run of posters widely distributed and retailed. I'm not really clear what "limited edition" means. I've heard the figure 200 thrown around but am not certain this has any relation to needing a release. At any rate, the poster is a commercial venture, so not protected under Freedom of Speech, and would require a release.

Even in some cases of fine art prints, it would be wise to get a release. I'm thinking particularly of nudes, where a person is recognizable (and "recognizable" is not limited to just their face being shown clearly, BTW.)

All these might differ in countries other than the U.S. There may even be some variance from state to state here.


Liable and defamation are entirely separate issues. So, if, for example, you had a "gallery of fat people" online (or anything else that might be considered derogatory), I think you'd better have releases from any and all recognizable individuals.

Overall, the best response so far is simply "always get a release". It's safer/better to do so, than not. The law is in constant flux as new cases go to court and matters are re-interpreted, plus you cannot always predict how you might want to use an image in the future.


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Jul 31, 2008 19:19 |  #22

I agree with you Alan, and you summed it up well. I should add that in my Verizon example, I was referring to an on-line portfolio, such as found on a photographers website, or even secondary galleries such as Flicker, PhotoShelter, etc, when used as a way to promote ones self. I hadn't mentioned a physical portfolio at all, and I agree with you 100% that it shouldn't be an issue.


Stephen
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Release needed for portfolio shots?
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