Photography law question

February 1, 2005 1:50 PM

Photography law question. I've tried to Google this, but the sheer volume of information makes it extremely hard to find an answer. [MI]

If I hire a professional photographer to take pictures of me or my family, can the photographer sell those pictures as stock photography? Can they use the photos in advertisements? Can they post them in a website portfolio? Can they do all of this with no signed release, or even any notice to me? What if the photographer was hired to photograph children? Would all the same information apply to photos of kids? Much thanks for any help!

posted by peep to law & government (18 comments total)

I don't think a photographer can sell your pictures or display them publicly without a model release form. However, you may have signed one in the course of hiring the photographer, possibly without even really noticing. It's probably all in how the contract was formed (if a formal one WAS formed). The photographer I worked for, when possible, reserved ownership of the photographs in their entirety, and basically the fee he was given granted the customer the right to have some prints made or use the photographs in given ways. If he gave them prints to use in a company's annual report, they were not permitted to use them in, say, an ad campaign without paying him for it. This is what his contract said -- whether or not such things are common, legal, or even enforcable, I don't know.
posted by RustyBrooks at 2:00 PM on February 1, 2005

Thank you, Rusty. The photographer in question is an acquaintance, and I signed nothing. This is my concern.

His business is very semi-professional/casual and he often hits up his family and friends for business (for example, "Don't get your pictures taken at J.C. Penney; I'll do them cheap!"), then uses photographs of them in whatever manner he wishes. He never has anyone sign anything. He occasionally shoots weddings and uses the pictures in brochures. I know for a fact he doesn't use releases. He believes the "reserved ownership" you refer to is implicit; he thinks if he gets sued he will always win because the law is on his side.

That, I guess, is my question distilled. Is he correct in that assumption?
posted by peep at 2:13 PM on February 1, 2005

I am pretty sure that he is not correct. If he is creating a work-for-hire, then the copyright on that image goes to the employer, absent some agreement to the contrary.
posted by MrZero at 2:23 PM on February 1, 2005

I'm not sure that's strictly true though, MrZero-- when Olan Mills owns the copyright on the pictures they took of my kids (which, obviously, I hired them to do.) I cannot make copies of Olan Mills' photos, even though they're of my kids.

However, Olan Mills can't use those pictures in their advertising, brochures, etc., without my signature on a release. (They wanted to use one of my kids' pictures as one of the example photos on the wall, and they called and made the request, and I had to sign a release for them to do it.)

So, I think legally- the photographer owns the photograph. The subject owns their likeness. The photographer can't profit from the likeness without permission, and the subject can't duplicate the work without the photographer's permission.

Oh and IANAL, laws vary by municipality, etc., etc..
posted by headspace at 2:40 PM on February 1, 2005

The creator of a work retains copyright of that work for reproduction. However, when that reproduction is for commercial purposes, the creator/copyright holder needs the permission of the subject model.

In other words, headspace nails it.
posted by FlamingBore at 2:53 PM on February 1, 2005

I think headspace hit the nail on the head. I think the photographer can use the image in his portfolio, but not in a newspaper advertisement.
posted by trbrts at 2:57 PM on February 1, 2005

Look up your state's Right of Publicity statute.
posted by andrewraff at 3:03 PM on February 1, 2005

Thanks, Headspace and FlamingBore. That's what I was hoping to hear. I assume this is common sense among MOST pro and semi-pro photographers? Any recommended books that address this particular situation? I'd like to have something better than "But I read on the internet that you're wrong!"

On preview: Thanks andrewraff, I'm checking it out right now.
posted by peep at 3:07 PM on February 1, 2005

If he is creating a work-for-hire, then the copyright on that image goes to the employer, absent some agreement to the contrary.

The situations peep described are not employment.

Prior to 1978, court cases said a customer who commissioned a photo was the employer of the photographer, so customers could get reprints made without any problem. In 1979, the U.S. Supreme Court said that was no longer true. To be an employee, the court said a person would have to be considered an employee under the traditional tests such as are used to impose payroll taxes, social security, and similar laws. That is not the usual customer-photographer relationship.

But as headspace noted that still would not void the subject's right to control use of their likeness. This site has more detailed discussion of the legal issues around model release (not that the context is newsgathering, where a release is less likely to be required).
posted by nakedcodemonkey at 3:13 PM on February 1, 2005

Note. Note that the context is newsgathering. *sigh*
posted by nakedcodemonkey at 3:53 PM on February 1, 2005

naked, that is an interesting distinction because the accepted standard in developing software (which I'm sure has been validated in more than one court decision) is the opposite. Much discussion of contracts for developers touches on whether or not, or when, one should try and retain code ownership. Hmm.
posted by billsaysthis at 6:02 PM on February 1, 2005

This is why I so rarely deal with people when doing photography.
You could also make terms clear on paper. What you consider ok use for him and not ok use for him under what conditions and have both parties sign.
I don't know how he would react, but as a semi-pro photographer I would not be offended by such a request. And personally I would never use wedding/person photos for anything more then as examples of my work, never for profit, and it would have to be a damned good photo for that.
posted by edgeways at 6:24 PM on February 1, 2005

If your picture makes it onto a few million jars of bad coffee you might even get rich. andrewraff's link probably best describes the law. Most photographers are pretty cautious about this as a court fight can be rather expensive. I think your best bet with your photographer acquaintance is to just tell him your not comfortable having the pictures used for promotion or otherwise just so there is no confusion.
posted by caddis at 7:13 AM on February 2, 2005

The subject owns their likeness. The photographer can't profit from the likeness without permission, and the subject can't duplicate the work without the photographer's permission.

This is correct. Your photographer friend is very much incorrect, and will eventually find this out the hard way if he doesn't get wise soon. While he certainly owns the pictures, and can reproduce them to his heart's content and sell them on eBay if he wanted, he cannot use them purely for promotional purposes without a release.

That contract is what separates a professional from an amateur. The only exception would be photojournalists, who have their own set of rules. But this...

"He occasionally shoots weddings and uses the pictures in brochures. I know for a fact he doesn't use releases."

...is a lawsuit waiting to happen...

he thinks if he gets sued he will always win because the law is on his side.

...unfortunately the judge will probably disagree with your friend.
posted by Civil_Disobedient at 7:25 AM on February 2, 2005

Plus, your friend is just being an ass. It's icky to take pictures of friends and then use those pictures in brochures, etc.
posted by bshort at 8:52 AM on February 2, 2005

As Caddis already noted, the Taster's Choice ruling highlights how very wrong your friend is. It should also serve as a warning to him to check for greater restrictions at the local level. Nestle lost in part because "...California has a law barring unauthorized use of a person's image for commercial purposes....[the] jury ordered Nestle USA to pay Christoff $15.6 million for using his photograph without his permission and profiting from it."
posted by nakedcodemonkey at 9:43 AM on February 2, 2005

naked, that is an interesting distinction because the accepted standard in developing software (which I'm sure has been validated in more than one court decision) is the opposite.

Really, the same standard is used, just to reach a different conclusion. The IRS has a standard set of tests for distinguishing employees from contractors, and default (i.e. not contractually specified) copyright over work product turns on the employment status issue. A software developer's typical work conditions are different from a commercial photographer's, that's all.
posted by nakedcodemonkey at 9:52 AM on February 2, 2005

Thanks to everyone who answered. This is helpful. The photographer is a friend of my best friend; I've only met him twice. He snapped a candid picture of me at said best friend's wedding, and he's using it in a wedding guide. And yes, he is an ASS.
posted by peep at 10:42 AM on February 3, 2005