With no contracts in place between photographer and subject, who has what rights?
September 21, 2008 9:17 PM   Subscribe

I'm clueless about rights issues when it comes to how things work between photographer & subject, and as a performer I need to learn. If no release was signed at a photoshoot, who has what rights?

Posted anonymously because my username is my stage name and this certainly doesn't need to become an issue.

I'm a performer, and last year I was the subject of a great shoot for a local paper that ran a double page spread on my show. The freelance photographer is someone we see around a little, on the fringes of our circle of friends, and he did a fine job. It was all rather informal, there were no forms or contracts signed, and I didn't think too much of it.

A couple months later someone told me they saw me in a different, unrelated magazine in a full page ad for the photographer's studio. I wasn't really sure what to think about that. I'm a bit new to this world and I didn't think much of it. I assumed that the photos were his to use, though I suppose I wish I'd been credited since they'd been promotional shots for my act.

Photog verbally promised high res copies at the time of the shoot. I emailed him a couple times during the year and did not get a response, until a month ago when he again said he'd get me copies but has since become unresponsive yet again.

If I get the photos, I'd like to use them in promotional packets to venues and flyers. I've tried contacting him to negotiate permission to do so but again, he's not an easy guy to get an answer from. I'm wondering, since there was really nothing ever written down between us, do I have any rights to anything in this situation or should I just chalk it up to a lesson learned? I got my promotion, which is what I was initially looking for. I'm just not sure if I am entitled to any further control of my likeness at this point.
posted by anonymous to Law & Government (10 answers total) 1 user marked this as a favorite
This is a good question, I've only ever read about and used model releases from the photographer's perspective. Basically, unless I am shooting in a public place where the subject has no reasonable expectation of privacy, it’s in my interest to get a release form as a CYA.

Since you didn't sign a release form, you have not signed away any rights to images of yourself, and you can make life difficult for him if you choose. At the very least, you have every right to demand images and credit when he uses them.

From my perspective, if the photog has published pictures of you, not given you credit, AND will not even give you copies, he's being a dick. He is also risking his professional reputation in your town if he does this on a regular basis and it becomes known to others.

I have this link stored as a reference, it the most detailed discussion I have seen so far.
I hope it helps, I haven't seen much on release forms and legal rights from a model's perspective.
posted by volition at 9:53 PM on September 21, 2008 [3 favorites]

It's called the right of publicity, and you have it (the right to control commercial use of your name/likeness). Since you did not sign a contract, the photographer probably did not have the right to use your image to promote his work. I say probably b/c your specific rights will depend on the state you are in--the right to publicity varies by state. So you will need to look up your state's laws to see what specific options you have, you may be able to sue for damages (loss of income) if you choose.
posted by DiscourseMarker at 11:28 PM on September 21, 2008

So basically the freelance was lazy and/or dumb and didn't get a model release from you. I bet money that the newspaper made him sign a contract that at least indemnified them from his not getting proper releases for models or property. Also does the freelancer really have the right to use the photos for his personal use or does the newspaper own them?

Having said that it's just not clear from what you describe if the photographer has done anything legally wrong, or if you're entitled to some sort of compensation or "control" over the photographs.

What state are you in? In some states model releases require compensation and in others they don't. Is the ad photo a clear, identifiable picture of you or is it some picture of a big group, and the person you talked to just happens to know it's you?

Like all thinks legal and medical here for the best answer you're going to have to talk to a local lawyer that deals with this stuff. You have to decide if this problem is worth that.

In the future to be sure you get what you want, bar all photography (assuming you're on private property) except for people that you've contracted with. In the end this will probably be much easier than tracking down and dealing with photographers that may or may not be using photos without properly compensating you or otherwise obtaining your permission. Keep in mind that a model release isn't intended to be a contract for services.

(As for model's rights--the reason you don't see much is that most releases boil down to "for whatever minimum compensation required I (the photographer) get to do anything I want with this photo forever.")
posted by sevenless at 11:29 PM on September 21, 2008

In the US, copyright goes to the person who pushes the shutter button unless some other agreement is arranged. Photographers for many newspapers, either staff or freelance, relinquish their copyright, or share their copyright, to the newspaper as a condition of the assignment. It hasn't always been this way, and it's bad for photographers, but it's the way it usually works with newspapers. Copyright has nothing to do with your concern about being in the ad for the photo studio; DiscourseMarker is right that "right of publicity" is the issue. For noneditorial use, a model release is generally required if the person is identifiable. I think the photographer might try to make an argument that is a portfolio-like usage of something for self-promotion, but my take is it's advertising, so the photographer should have a model release from the subject for the usage. I'm not a photo attorney, but there are plenty online. Though they usually work on behalf of photographers, you might consider contacting one.

About getting some prints from the photographer; you guys only had a verbal agreement. The only real fault here is that the photographer is a big jerk for not sending you a 3x5 or a lo-res digital file after promising to do so. Every time I photograph an assignment, somebody invariably asks me to send them pictures. I have to be honest and say that if I said yes to everyone asking for pictures, I'd spend all my time sending out pictures to my subjects. If the subject has done a lot for me in terms of access, introductions, time spent, etc., I'll send prints as thank you if sending them is feasible (some people I photograph don't receive mail...)

If I get the photos, I'd like to use them in promotional packets to venues and flyers. I've tried contacting him to negotiate permission to do so but again, he's not an easy guy to get an answer from. I'm wondering, since there was really nothing ever written down between us, do I have any rights to anything in this situation or should I just chalk it up to a lesson learned? I got my promotion, which is what I was initially looking for. I'm just not sure if I am entitled to any further control of my likeness at this point.

You have the rights to your image, but even if you receive the photographs you have no right to use them for any purpose beyond putting the prints in a shoebox under your bed or a photo album on the coffee table (not even myspace or facebook). What you're talking about in the above quote is a headshot, and people pay good money to get those done well. While you do have some (substantial) negotiation leeway given that your likeness was misappropriated in the ad, you should be prepared to pay the going rate for headshots if you want to use the pictures for any purpose other than personal use. There are a million costs that go into photography (thousands of dollars of equipment that need to be replaced every couple of years, talent, time, transportation, delivery of materials, etc.), and the photographer can reasonably expect compensation for the services he would be providing you. While it's easy to think that because the photos have already been taken, there's no more cost associated with them, realize that the maintenance of one's own archive of pictures is a lot more complicated than a shoebox full of old prints. The sale of stock photography, necessarily, is a large source of revenue for photographers.
posted by msbrauer at 1:33 AM on September 22, 2008 [1 favorite]

You should probably get advice from a lawyer, if only to understand what you should do differently in the future.
posted by winston at 2:21 AM on September 22, 2008

he doesn't have a release, he's using you in his ads to promote his business, you can sue. he obviously doesn't give a shit about what you ask him nicely, but as soon as he receives a letter from a lawyer, I'm sure he'll pay more attention.
posted by matteo at 4:53 AM on September 22, 2008

The photographer seems to not know much about rights either. He needs a release with your permission to use the photos of you for advertising purposes. Seeing as he hasn't received your permission this gives you some leverage. Write him a letter stating that he doesn't have legal permission to use your images for promotion. You may be willing to grant that permission gratis if he allows you similar gratis use of the images for promotional purposes. If he doesn't agree then he should stop using your image immediately. You can pursue a lawsuit to claim damages for his use but I wouldn't say that in an initial letter. You might be able to come to a satisfactory agreement without making threats.
posted by JJ86 at 6:03 AM on September 22, 2008

Mod note: This is a followup comment from anonymous.

Great answers so far! Didn't realize this area is as gray as it is. Three things that have been addressed above:

I'm in Texas.

I am the only subject in most of the photos and in the ad. There is no question it's me. I'm in stage garb and performing one of my acts. (I'm a sideshow performer)

The newspaper is one of those very small independent operations. I don't know for sure but I'd guess they allowed him to keep the rights to the photos he took.

Also, I'm not looking for a fight here and don't want to involve courts. I am merely trying to learn now because I am rapidly getting more exposure and would rather learn these lessons with a local photographer in a smaller market then someone national. I also understand headshots cost money and wasn't necessarily looking to use them for free, just to see what he'd be looking for in return.
posted by cortex (staff) at 6:59 AM on September 22, 2008

The basic situation is that the photographer is using you to make money without your permission. While the photographer is going to own the copyright to the images whether or not you sign a release, the photographer does not have the right to use the images for advertising without that release. In the photo industry, it is common practice to get what is called a "Model Release" if you are going to use a photograph of an individual for advertising (here the photographer is advertising his studio). The reality of the situation is that the photographer has opened himself up to liability because he does not have your written permission.

IANAL, but I am a professional photographer. You need to tell the photographer:
-Hey, you're using the picture of me to make money without a written model release. Getting a model release is SOP for the photography industry.
-I have no problem signing a model release in exchange for the images you promised me.
-You owe me for using my image without my permission- we'll call it even if you let me use the pictures you took of me to promote my show.
-You're taking advantage of me. I took the time to participate in the photo shoot in exchange for images. I helped you out and you did not follow through on your end of the bargain.
posted by mintymike at 11:19 AM on September 22, 2008 [2 favorites]

The advice everyone's given to talk to a lawyer is good advice, even if it's just for future reference.

Check whether there's a local Lawyers for the Arts where you are. The San Francisco organization was a good starting point for me when I ran a little independent record label.
posted by kristi at 8:27 PM on September 22, 2008

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