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Thread started 15 Dec 2010 (Wednesday) 09:28
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Is this Legal?

 
mriehle1
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Dec 15, 2010 09:28 |  #1

I took a picture of OSU football stadium when they were playing Michigan a few weeks ago. I have posted it on my flickr account and a few people have asked if they could purchase a high res copy from me..I have yet to respond to them because im worried about a property release.. Can i get sued ? can i sell them the picture? Please help!

http://www.flickr.com/​photos/mriehle1/521699​7080/ (external link)
Thanks!


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chakalakasp
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Dec 15, 2010 10:59 |  #2

mriehle1 wrote in post #11456271 (external link)
I took a picture of OSU football stadium when they were playing Michigan a few weeks ago. I have posted it on my flickr account and a few people have asked if they could purchase a high res copy from me..I have yet to respond to them because im worried about a property release.. Can i get sued ? can i sell them the picture? Please help!

http://www.flickr.com/​photos/mriehle1/521699​7080/ (external link)
Thanks!

Read the back of the ticket you purchased. It usually lays out the terms and conditions for photography inside the stadium and what you can do with those photos.


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John ­ the ­ Geek
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Dec 15, 2010 11:16 as a reply to  @ chakalakasp's post |  #3

Legal? As your own photograph, yes. But there are a lot of legal gotchas you could get sued for:

Can the University sue you for violating the terms of your ticket purchase and turning a profit? They could. Would they? Likely not.

Can the University sue you for trademark violation? Possibly. Depends on whether they have a trademark on their font/title design, which they likely do. Would they sue you? Again, probably not depending on the scope.

If you were to try and making a living selling their brand then you'd have them on your case in a hurry. If it's a one-off once in a while to a limited audience (not to be published in a book, etc.) then you might be alright. If someone just wants to hang it on their wall, I'd do it.

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MJPhotos24
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Dec 15, 2010 11:42 |  #4

John the Geek wrote in post #11456831 (external link)
Legal? As your own photograph, yes. But there are a lot of legal gotchas you could get sued for:

Can the University sue you for violating the terms of your ticket purchase and turning a profit? They could. Would they? Likely not.

Can the University sue you for trademark violation? Possibly. Depends on whether they have a trademark on their font/title design, which they likely do. Would they sue you? Again, probably not depending on the scope.

If you were to try and making a living selling their brand then you'd have them on your case in a hurry. If it's a one-off once in a while to a limited audience (not to be published in a book, etc.) then you might be alright. If someone just wants to hang it on their wall, I'd do it.

-John

Some of this is actually not correct.

Of course it's legal to sell a print you own the rights to, it's not commercial use when it's a stand alone print. The only time you need a release is when it's commercial (i.e. a poster for re-sale, a product, advertising, etc), a print is editorial and always has been. Now if you tried to mass produce framed prints for distribution different story and they could argue that's a commercial venture. However, legally they would lose the argument and instead have to result to bullying tactics, and banning you from future events, etc.

There's two ways to know this - 1) It already happened! A photographer in the press mass produced prints to sell in stores, it was a commercial adventure for him but so is printing magazines and newspapers. The league said it was illegal, he said it was not. The league said again it's illegal, he said again it's not. They had no legal leg to stand on so they went to the stores and pressured them to stop buying the images and told the photographer he would not be allowed at future events. So, he had to buckle to keep his job and be able to cover the games - but he was legally right. 2) Going through it right now, I'm legally right and the company is instead going the way of the bully - and it doesn't even involve prints, just the display in a portfolio!

No, they can not sue you for violating the terms of your ticket purchase because once the image is captured only a judge can rule against editorial usage. I don't know any team that would put something on the ticket that would violate the first amendment. NYS is going through this right now, they have an exclusive with a company for prints and there's other guys selling prints. All they can do is say take it down, the guy does not have to listen. Even though it was outlined clearly there is an official photographer he's continuing to sell and is legally allowed. Of course, he's now banned from the games next year I would hope - but nothing they can do about those prints he's selling.

There is no trademark infringement, not in editorial usage.

Yes, if you tried to make a living off them they would come down on you hard - but it'd be mostly scare tactics and threats. They'd ban you from future events, but there is no trademark infringement on editorial images.


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EL_PIC
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Dec 15, 2010 11:50 |  #5
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Legal - Moral - Tactful can apply here.
Courts are not pursuing much on photo copyright law unless its real high dollar and high profile.
There are so many infractions these days of digital photo its not practical.
The only court that would be interested is Judge Judy / Alex ... so they can make $$ on TV.


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malibubts
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Dec 15, 2010 11:54 |  #6

MJPhotos24 wrote in post #11456972 (external link)
Of course it's legal to sell a print you own the rights to, it's not commercial use when it's a stand alone print. The only time you need a release is when it's commercial (i.e. a poster for re-sale, a product, advertising, etc), a print is editorial and always has been. Now if you tried to mass produce framed prints for distribution different story and they could argue that's a commercial venture. However, legally they would lose the argument and instead have to result to bullying tactics, and banning you from future events, etc.

What's your take on selling pictures from say SmugMug? Would those be standalone prints?


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MJPhotos24
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Dec 15, 2010 12:01 |  #7

malibubts wrote in post #11457053 (external link)
What's your take on selling pictures from say SmugMug? Would those be standalone prints?

They are, but again there's tactics to be done...

They can try to pressure SM to close your account or they can just pressure you to take them down. ALL leagues think selling prints is commercial, legally they are not right and all you have to do is check with the case in IL that went to the Supreme Court - and that was high school athletics. However, they will go to extents to protect their own print sales. It's usually not worth the pennies you make from prints to tick off the big machine. You make a lot more staying on the good side in the long run than not. Or you could be in a lose lose situation like I am right now, so it's ever so fun!! Trust me, it's NOT WORTH IT if your goal is to sell some prints openly on smuggie or any other site.


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John ­ the ­ Geek
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Dec 15, 2010 12:50 as a reply to  @ MJPhotos24's post |  #8

EL_PIC wrote in post #11457020 (external link)
Courts are not pursuing much on photo copyright law unless its real high dollar and high profile.

This isn't about copyright. It's a civil liability issue, not a criminal one.

MJPhotos24 wrote in post #11456972 (external link)
Of course it's legal to sell a print you own the rights to, it's not commercial use when it's a stand alone print. The only time you need a release is when it's commercial (i.e. a poster for re-sale, a product, advertising, etc), a print is editorial and always has been.

I'm not as convinced that making and selling prints for commercial gain counts as editorial use. But I'm not confident that it's not either. If you have references to this I'd love to read more about it.

MJPhotos24 wrote in post #11456972 (external link)
No, they can not sue you for violating the terms of your ticket purchase because once the image is captured only a judge can rule against editorial usage.

They can file a civil suit for anything. They may not win, but they can always make a claim, pay their lawyers, and let the court decide. You called it scare tactics, and you're right, but too often it works. "We'll drop the suit if..."

=)


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amfoto1
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Dec 15, 2010 13:06 |  #9

John the Geek wrote in post #11457461 (external link)
This isn't about copyright. It's a civil liability issue, not a criminal one.



I'm not as convinced that making and selling prints for commercial gain counts as editorial use. But I'm not confident that it's not either. If you have references to this I'd love to read more about it.



They can file a civil suit for anything. They may not win, but they can always make a claim, pay their lawyers, and let the court decide. You called it scare tactics, and you're right, but too often it works. "We'll drop the suit if..."

=)

Making and selling individual prints in small quantity is technically commercial in nature, but the courts lump it into the category of editorial for legal purposes. It's considered "art" and art can be commentary, too. You can sell it directly or hang it in galleries and museums, for sale or just for display. A portfolio of your work is also considered editorial in legal situations, too, although it's clearly something that will be used for self promotion.

In the OP's situation, I would only worry about what the purchasers intend to do with the image. If they are going to make a print and hang it on their wall or want to use it as a screensaver on their personal computer, no problem. If they are going to use it as an illustration for a magazine or newspaper article, even for an article on a website, also no problem. If they want to use it in an advertisement of any sort, or to put on a coffee mug or t-shirt and sell, then you should have a proper release and the image shouldn't be sold for that purpose.


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John ­ the ­ Geek
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Dec 15, 2010 13:11 |  #10

amfoto1 wrote in post #11457562 (external link)
Making and selling individual prints in small quantity is technically commercial in nature, but the courts lump it into the category of editorial for legal purposes. It's considered "art" and art can be commentary, too. You can sell it directly or hang it in galleries and museums, for sale or just for display. A portfolio of your work is also considered editorial in legal situations, too, although it's clearly something that will be used for self promotion.

This does sound familiar. I recall a conversation regarding the difference between a print portfolio and a web portfolio, with a web portfolio qualifying as "publishing" an image for liability concerns, therefore making a model release all the more important.

=)


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suecassidy
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Dec 15, 2010 13:14 |  #11

They aren't going to sue you for selling those pics, even though they technically could. If you couldnt' or didn't get caught, would you sell them? Just answer that.


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RDKirk
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Dec 15, 2010 13:36 as a reply to  @ suecassidy's post |  #12

No, they can not sue you for violating the terms of your ticket purchase because once the image is captured only a judge can rule against editorial usage. I don't know any team that would put something on the ticket that would violate the first amendment. NYS is going through this right now, they have an exclusive with a company for prints and there's other guys selling prints. All they can do is say take it down, the guy does not have to listen. Even though it was outlined clearly there is an official photographer he's continuing to sell and is legally allowed. Of course, he's now banned from the games next year I would hope - but nothing they can do about those prints he's selling.

Well, they do print such stuff on their tickets, but I put that in the category of a "bully/bluff" tactic that would not stand a court test.

Making and selling individual prints in small quantity is technically commercial in nature, but the courts lump it into the category of editorial for legal purposes. It's considered "art" and art can be commentary, too. You can sell it directly or hang it in galleries and museums, for sale or just for display. A portfolio of your work is also considered editorial in legal situations, too, although it's clearly something that will be used for self promotion.

To make this clearer, states in the US that have passed legislation in this area have explicitly stated that "commercial use" means soliciting a service or sale of a product other than the artwork itself. Some have also explicitly legislated that use of a photograph in a portfolio or studio display is commercial but exempt from privacy (model release) requirements (I doubt this includes unsecured web portfolios, however...but that has not been tested).

One thing to be careful about the "work of art" defense, however, is that some courts have been rigorous about determining if the artist is, in fact, an artist. The use of the work in question had better be a clearly artistic use (such as a gallery showing) or he had better have a history of artistic activities in his background if he attempts that defense. To be sure, though, these have been cases with substantial commercial interests involved.


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MJPhotos24
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Dec 15, 2010 14:11 |  #13

John the Geek wrote in post #11457461 (external link)
I'm not as convinced that making and selling prints for commercial gain counts as editorial use. But I'm not confident that it's not either. If you have references to this I'd love to read more about it.

First amendment, easy find.

Also, this case was pretty big as the IHSA had to "settle" meeting all the newspaper associations claims. The secondary usage they talk about is selling prints which is mentioned in there.

http://www.nppa.org …s/2008/04/illin​ois11.html (external link)

Commercial product and commercial gain is a bit different. Commercial products you need licensing for, however, newspapers, news websites, magazines, etc. all make commercial gain technically - not many are "not for profit" organizations. You can make money in the news.

Another basic rundown of things...

http://www.photoattorn​ey.com …-vs-editorial-use-of.html (external link)

A stand alone print is not "advertising" a product or service.

Now, private property owners can restrict photography all they want. However, after the image is captured only a judge can rule if it should be deleted/made unavailable. The only way that is happening is if you obtained it illegally (hidden camera, kept shooting after being told to stop, ignored posted signs of laws, etc).

They can file a civil suit for anything. They may not win, but they can always make a claim, pay their lawyers, and let the court decide. You called it scare tactics, and you're right, but too often it works. "We'll drop the suit if..."

Frivolous charges, countersuit, they'd be creating one hell of a mess. It's why no league has done it - they can not win and have easier, cheaper scare tactics to make you stop.

Funny thing is OSU photo policy.

Cameras
1. Still cameras with a lens greater than 100mm, any audio and video recording equipment, monopods, dual pods and tripods are prohibited.


Talk about tough to police with zooms and security guards not knowing what 100mm means!

2. Images are for personal use only and may not be used for any commercial purposes and may not be re-sold without the express consent of The Ohio State University. Guests found to be using images for any commercial purpose or found to be re-selling pictures will be asked by The Ohio State University to cease and desist from using the images for commercial purposes which may be against NCAA bylaws.

Restrictive isn't it, but read it closely. It insinuates no re-selling at all but ALWAYS in the vain of commercial usage. It never says prints or editorial - all surrounded in commercial context and it shows in the last part that is underlined. It seems they'll only send the cease and desist for commercial purposes - what happened to any "re-sell"?? Just disappeared, isn't that odd. That confusing jargon is why the lawyers get the big bucks.

As for those NCAA bylaws, pay close attention to the last sentence....

12.5.2.2 Use of a Student-Athlete’s Name or Picture without Knowledge or Permission. If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student athlete’s knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics. Such steps are not required in cases in which a student-athlete’s photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use. (Revised: 1/11/97, 5/12/05)

=)

I see your smiley face and raise you a :lol:


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RDKirk
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Dec 15, 2010 15:43 as a reply to  @ MJPhotos24's post |  #14

Commercial product and commercial gain is a bit different. Commercial products you need licensing for, however, newspapers, news websites, magazines, etc. all make commercial gain technically - not many are "not for profit" organizations. You can make money in the news.

The way the courts have worked that out is that in order for free speech (including artistic speech) to be truly free, the speaker must be allowed to earn his living through his speech. Therefore, the writer cannot be inhibited from selling his writing for money, nor the artist from selling his art. The courts have even extended that to advertising for the sale of the art. That's why "Time" magazine can use an illustration of a Time cover (with someone's picture on it) in their own advertisements for the magazine and not need a model release.

If you were selling a photograph as a work of art, you could place an advertisement for it in the media using an image of that work in the ad, and still not need a model release.


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malibubts
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Dec 15, 2010 16:13 |  #15

Nice research MJ Photos. I just host everything up on my SmugMug and have had a few friends ask why the 'buy' option wasn't there like the other photos. I'm going to have to take a look at my Media Pass when I get home, I can't remember exactly how strict that is.


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