Do they own my son's likeness now?

December 3, 2007 5:56 PM

I just had my son's pictures taken at a national portrait studio that I'd never used before. The back of my receipt says, "[Studio name] reserves the right to use any portrait for advertising, promotions, and display purposes."

Is this even legal? I did not sign ANYTHING at the studio. I paid in cash, so I didn't even sign a credit card receipt.

I have heard of studios asking clients if they can use a shot, but I didn't know they could appropriate your photos.

I realize "ask a lawyer" is the standard response here, but no one has actually USED a photo of my son, so it seems a little extreme at this point.

The whole portrait experience was a clusterfuck from beginning to end (way above and beyond the normal hellish family picture situation), and I was planning to write them anyway, and when I saw that statement it pissed me off even more. I'd like to include something about that policy in my complaint.

posted by peep to Law & Government (20 answers total)

I work for a school, and we sometimes take photos of our adult students. I know that our PR/Marketing department requires a signed model release for anyone in the picture before they send it off for publicity purposes. I find it hard to believe that this "contract" on the back of a receipt would stand up in court if they used it--especially if it involves children. People are very touchy about images of children and I don't think any business in their right mind would use a photo of a kid without a signed release. I would be pissed off, too. You paid for a service, not to pimp your kid out.
posted by 45moore45 at 6:04 PM on December 3, 2007

It is completely standard in the portrait industry. The way that copyright law works, the creator of the work is considered the author and retains the copyright and all of the related rights (in most cases). The disclaimer on the receipt merely asserts the photographers right under the Copyright Act of 1976 (section 106, "Exclusive Rights").

IANAL, but I believe he would still have to obtain your permission to (for example) profit from your sons likeness by reselling the photos.
posted by indyz at 6:10 PM on December 3, 2007

If you didn't sign a model release, then no, it is not legal.
posted by Silvertree at 6:11 PM on December 3, 2007

If you didn't sign a model release, then no, it is not legal.

Hmmm. I think indyz is right. I think that if the photographer were to allow the use of the picture by (for example) an ad agency, then model releases are required. If he were to sell prints, then the same applies. But this hinges on 'profiting from the image'. Advertising himself isn't directly profiting. It's just advertising.

Promoting his own work (and his business) by showing something he has created (albeit with someone's son in it) is a different thing, and I believe that, within copyright law, he is justified.
posted by Brockles at 6:26 PM on December 3, 2007

The right to privacy is generally recognized in most jurisdictions within the US. It looks like Oregon has attempted to amend its constitution to recognize the right. If a right to privacy is recognized within Oregon (or elsewhere, if that's not where you are) then it would probably be violated by the use of the image of a minor child without express written consent. The notice on the back of the picture -- which you presumably received after you paid for the pictures -- is not enough. Just because someone owns the copyright in something does not mean they may exploit it for all purposes. If I took a picture up some person's skirt, I'd own the copyright, but would be in serious trouble if I published it. (In my state, I'd be in trouble for even taking it, under the criminal charge of improper photography. But that's another story entirely.)
Because this is a large national company, it seems like they'd be running into all sorts of problems with varying right to privacy laws in the different states.
In short, I think it's bullshit, and I hope you do call them on it. It's precisely that kind of ass-covering, faux-legalese that drives me batty. Like trucks on the highway that say "Keep back 300 feet/Not responsible for damage". You can't just assert things and have them be legally true.
posted by katemonster at 6:34 PM on December 3, 2007

(Also, there's a good argument to be made that this was a work made for hire, in which case you'd own the copyright and the entire issue would be moot.)
posted by katemonster at 6:35 PM on December 3, 2007 [2 favorites]

This article (while not the one I wanted - it has disappeared) seems to support that. The people in a photograph (think of a wedding photographer as an example) have to order images and copies from the photographer. They can't just make copies - that is copyright theft as the photographs belong to the photographer.

That seems to be a well known example that fits with the above - the person in the picture doesn't own anything except the right not to have their image used for commercial purposes (needing a model release as in my examples above). As long as the image is used purely by the copyright owner, then there is no problem.
posted by Brockles at 6:35 PM on December 3, 2007

Just because someone owns the copyright in something does not mean they may exploit it for all purposes.

Not for ALL purposes, no. The line is drawn when it is for commercial gain (I'm pretty sure self-promotion doesn't include that element as it is not direct). But my dim recollection of several threads on Flickr about this makes me want to side as I have done. I tried to find them, but the massive noise of the various elements make it hard to find any decent sources. I know this sort of thing sounds like it should be bullshit, but I'm not sure it is.

Right to privacy: I'm assuming that there was no contract/small print when you took on the portrait session? No reference to this in the initial quote? No disclaimer up on the walls that this right to use for personal (or own business) promotion was reserved by the photographer?

Any paperwork at all in this, or just turn up and pay cash for a photograph?


"This article seems to support that" by which I meant my initial post.
posted by Brockles at 6:42 PM on December 3, 2007

I'm not a lawyer. I am, however, an intellectual property law professor, which means I speak in generalities and am often wrong. Still, the photography studio doesn't have much to go on here, as I read it.

This is a specific kind of right to privacy called the "right of publicity." Where it's recognized, it protects people against having their likeness used for commercial purposes without their consent. Selling pictures of them: no good. Using their pictures in advertising: no good. Using their pictures in advertising for the photographer: still no good.

It's true that the photographer owns the copyright in the photo. But all that means is that no one else is allowed to make copies of the photo (so, technically, no running off copies of the photo on your scanner). The copyright doesn't give the photographer an affirmative right to actually do anything with the photo. If if violates someone's privacy -- the upskirt photo is a good example -- the privacy right trumps, and the photographer can't use it.

As for that "release," it sounds sketchy to me. Many places that use photos professionally will demand a model release and will throw the photographer out on his ear if he doesn't supply one. You didn't sign anything, and you didn't even have a chance to object to the term -- it was only there on the receipt, after you'd already paid and gotten the photos. That's not how one creates a binding contract.

None of these conclusions are ironclad, but I think you're on good ground in complaining loudly.
posted by grimmelm at 6:47 PM on December 3, 2007 [1 favorite]

I know this doesn't help answer your question, but its questions like this that make me glad I make sure all my clients read and understand the contract for every shoot I do. I'm sorry you had such a bad experience!
posted by blaneyphoto at 6:49 PM on December 3, 2007

Response by poster: Thanks for answers so far. Again, I want to clarify, there was NO contract. Nothing to read, etc.

This was a chain, located inside a major retailer of baby items. You walk in, wait for your name to be called, get your photos taken, they try to upsell you, you pay and you leave with your pictures. The actual "photographers" are minimum-wage-earning 19 year-old girls.

Clearly it sucked and we'll never do it again.
posted by peep at 6:57 PM on December 3, 2007

There's a vast difference between owning the copyright to a work which depicts an identifiable likeness of another person and being able to use that work for anything you see fit.

The right of publicity is a state law issue, though. If you're in Oregon, I did a little searching around, and I came across this case... (IANAL, IANYL, YMMV)

Hinish v. Meier & Frank Co. (113 P.2d 438), Or. 1941

In which the Oregon Supreme Court says "It is a legal wrong for a photographer, employed to take a patron's picture, to make additional copies and use them for his own purposes without authorization." and cites a few cases for that proposition. It appears to be dicta, but I'd guess it's solid enough for now.

Someone else might be willing to analyze the case a little more thoroughly.
posted by toomuchpete at 7:03 PM on December 3, 2007

i have been a manager at a studio like the one you describe but not the one you're talking about. first of all, i know that around the holidays those places are insane and customers can have terrible experiences. If you are willing to go elsewhere, pay 50 dollar sitting fees, and not be able to walk in on a whim, by all means go and do it. As it stands, you got the experience you paid for. That 19 year old makes minimum wage because her company sells pictures for 5 bucks a sheet and offers special deals that gives a very slim profit margin.

At the studio I came from during this time of year we were expected to do 2 shoots every 15 minutes and to have them sold and rung out within 30. We also had to deal with a marketing department that came up with all of those upsells and misleading deals. Add to that playing your precious little darlings, getting hit with bats, puked on, pushed, yelled at, and just generally mistreated there were time when we could get a little testy.

Complain to the company directly. Leave your personal studio out of it. They have no knowledge or oversight on the topics you're talking about and they don't have time to deal with issues like this.

I know that the company I worked for was sued a few times in the last couple years because people claimed a baby used in print ads were their child. it wasn't, but my company didn't have the proper papers signed proving what child it was and the families were well compensated by the courts. when that happened we were no longer allowed to post portraits in our studio that the parents gave permission for. All samples had to be vetted through the lawyers. They aren't going to use your pictures. Furthermore, so many parents jump at the chance for their child to be on the wall that a studio of the type you describe would not have to covertly use your kid to sell sepia tones.

More than likely it's a covering of their ass just in case your portraits happen to be on the counter or pulled out of the package to show another customer what a 5x7 or the blue background looks like. That way they have a policy to point to if you wanted to raise a stink about it.
posted by nadawi at 7:46 PM on December 3, 2007

Everything I've read says that grimmelm is on the mark. Local laws may vary, but my sister sending me scans of my (niece and nephew)'s professional taken pictures in an email is f'ing copyright infringement suitable for prosecution in U.S. courts. Shit sucks....
posted by zengargoyle at 8:25 PM on December 3, 2007

Zengargoyle - why wouldn't that be copyright infringement? most studios offer online images that are of a lower quality that you can still see but don't make good prints. if you want pictures of your relatives to pass around freely - take them yourself or pay the people who do.
posted by nadawi at 8:46 PM on December 3, 2007

I was planning to write them anyway, and when I saw that statement it pissed me off even more. I'd like to include something about that policy in my complaint.

The fewer complaints per letter, the more effective it will be. Especially if you're asking them to do something to solve the other problems (e.g. refund, re-shoot, etc.), it is to your disadvantage to add a complaint about something that the reader of the letter probably can't change.
posted by winston at 8:53 PM on December 3, 2007

To nadawi... Get Off My Lawn Youngster... My original thought was a picture of myself from the earyly '70s by some random local photography shop. Really, I could give you a link to a picture of myself from sometime in the early '70s. It's awefull, scary clothes... Taken from some random a**-hat many many years ago that probably doesn't even have a f'iing clue about copyright issues. But *no*, it's illegal. All of those random pictures you keep in a drawer that keep track of your family history.... *It's f'ing illegal to scan them and make them available to your friends!*. Only the person/company that took the pictures has copyright ownership. That random 50yr old picture of your grandfather... you can't scan it, you can't send it to your family, you most assuredly can't post it on the Internets because it's f'ing illegal. Shit sucks. Period.
posted by zengargoyle at 9:00 PM on December 3, 2007

Some friends of mine were in an article for a local magazine that included a photo of their family. Imagine their surprise several months later when they turned up on national billboards for some insurance company, including one about 4 blocks from their house. They actually did threaten a lawsuit and ended up with money and the removal of the billboards from locations where it might reasonably be seen by people who knew them (like practically next door to their house, and in their parent's neighborhood in another city). Full disclosure--one of the parents had a very high profile job in city government, which may have helped as they were in a position to get help from on high as it were.

However, the photographer retained the right to do it again, and the only reason they even found out about it was because of the billboard near their house.
posted by nax at 9:02 PM on December 3, 2007

(Also, there's a good argument to be made that this was a work made for hire, in which case you'd own the copyright and the entire issue would be moot.)

My understanding is that the "work for hire" provision of copyright law applies only for works created by an employee of the company. The photographer was not peep's employee, so in absence of a contract stating otherwise, peep doesn't own the copyright. The "work for hire" provision in this case means that copyright belongs to the portrait studio (the photographer's employer), and not to the individual photographer, personally, who took the picture.

But more importantly, as others have already addressed here, copyright and publicity rights are two separate things.
posted by DevilsAdvocate at 6:49 AM on December 4, 2007

My understanding is that the "work for hire" provision of copyright law applies only for works created by an employee of the company.

That's similar to my understanding, and matches up pretty well with the copyright act:

Works Made for Hire.
(1) A work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 USC 101)

The analysis of the difference between an independent contractor and an "employee" is done, if I recall correctly, using common law and it's not always very straightforward. In this case, though, it seems highly unlikely that anyone would consider that photographer OP's "employee"
posted by toomuchpete at 9:33 AM on December 4, 2007