Professional Photogs I need some legal guidance

[Cinbride]

A relative through marriage has decided to go into the photography business. That is a whole other story. Work is not good and then uses photoshop to try and cover it up. Anyways, they have been told before they went into this business that we did not want any pics of our kids on their personal site. Now, they have shots from a family gathering where they were not the hired photographer and our kids are in the pictures. They are using these in their portfolio. Granted back is turned in one but I can see us in the background on another. I had a horrid time everytime this subject has come up. They argue with me and tell me they are their pictures so too bad. What can I do, if anything? Are they allowed to post pictures to their professional portfolio on their business website without releases? They are very much under the age of 18. What about since it is family and at a family event? Any help/suggesstions? I'm so frustrated at this point.

[ukcatfan]

It sounds like your family are just background people in the shots. If that is the case, then there is not much you can do. You could try sending a cease and desist letter, but being family you might be causing more trouble than it is worth. If they are the primary subject, then a model release would be needed for any commercial use.

[mrcricket]

Talent releases are only needed when a photographer wants to sell that photo. A "smart" photographer will always get releases if he or she wants to sell the photo in the future. But if the photo is for personal use, i.e. to use in ones portfolio, they have the right to do that as long as they do not profit from the sale of that particular photo. Now, I'm not a pro photographer, but I am a Creative Director for an Ad Agency and I've dealt with these type of issues before for my clients. You may have some legal rights, but in my experience, if all your family member is doing is showing shots they've taken as a portfolio piece, then I believe you don't have a leg to stand on. You could always send a "cease and desist" letter to see if that intimidates them, but in my experience you'd probably lose in a court of law. Photographers have a right to take photos in a public place. Jay Maisel, world renowned photographer in NY, takes daily photo walks and shoots all kind of people. He's not worried about releases, because its "personal" work, not for commercial use. Does he show these shots on his web site as examples of his work? You betcha.

I think the bigger issue here is your relationship with your family. For advice on that I will bow out. That's stuff is too sticky for me.

[photo_chick]

Check your state and local laws. You do not need a release for using an image in your portfolio. The photographer holds the copyright to the image not the subject and they are correct that it is their picture (correct does not mean I think they are right). There are a couple of states that have laws that prevent images of minors being posted online without parental consent... though I think they mostly apply to a social network setting (facebook, school site, etc) and would not apply here.

The big question that will be asked... can you clearly see the faces of the people? If the answer is no you have no case, privacy laws or not.

[LPZ_Stitch!]

If I understand it correctly, model releases are only needed when you want to sell the photo for commercial purposes; like promoting a business or product.

I don't believe you need releases if the photo is just being sold as "art" or if it's for editorial purposes (like in a newspaper).

Urban or street photographers *always* have people in their photos (sometimes even as the subjects) and they're able to sell their photos without needing dozens of model releases.

[rtphokie]

Any decent photographer will get releases signed for any photo that sees the light of day, whether they are for sale or not. I keep 2 versions, one for adults and one for minors, in my camera bag at all times.

Your question is beyond this board. There are a few professional photographers here but most are amateurs and none are in much of a position to offer legal advice that I know of.

You've already tried what is usually the best approach, contacting the person directly. You might also seek some advice from your local Police. Many have and officer who specializes in internet related issues. You could also try an email to your state's attorney general asking what your options are.

[mrcricket]

The absolute best advice anyone can give you and I should have done this earlier, is to contact an attorney who specializes in Intellectual Property law (IP) or patented attorney. I've used several in the past when things have gotten sticky. I must disagree on the police advice. While police can enforce certain laws, most do not understand the intricacies of IP law. Only the specialist attorneys really understand it. And not every attorney understands it either, this is why you need to find a lawyer who specializes in IP and patent law.

[Cinbride]

thanks everyone. It is just so frustrating. All this and they do not want anyone to post pictures of their kids for the creeps to see but they put their kids all over the public site? Yes, they are selling the business. It is on their company website under portfolio. One picture has my child in it back is turned but there are only 4 people in it and my child is in the center. The other me and my child are in the background but I can clearly see my face. We could also easily be cropped out. It was a private family event. They asked one person if they could use their pictures. So, I would think they would know they need to ask others? I have other relatives that their children are plainly facing the camera and they have them on. I did alot of reading last night. I've read both ways but most say if it is a minor then most definitely they get a release. Oh you guys don't even know the half of this situation. As I said before, the whole family has told them not to post pictures of the kids on public sharing sites, so you would think they would realize this. They are pretty naive though. I mean they decided to jump into being a professional photographer charging over $300 for a session and pictures. Meanwhile, they have ALOT to learn. Business wise and photography wise. OHHHH what is that quote I've seen? "Just because you own a dslr, doesn't make you a professional, it makes you a dslr owner" Back to the posted question. It is more just the ethics of it and the past situation. And frankly I know they wouldn't like it if I did the same. I'm going to try and tread lightly and maybe have a common relative bring it up to them and hopefully that will work.

[Rental01]

LEGALLY, there's not a lot you can do. A photographer owns the images they've taken and they can use them as they wish. That's why the paparazzi can take pictures of whomever they want and sell them for money. Do you think that people who often have their pictures taken in embarassing situation want them displayed for all to see?

That said, most people will honor requests to have the pictures removed. I know that I do when people ask. Even for my site, I let people know that the pictures I take will be on my public site and, if they so desire, I can remove them if they ask.

[rtphokie]

The absolute best advice anyone can give you and I should have done this earlier, is to contact an attorney who specializes in Intellectual Property law (IP) or patented attorney. I've used several in the past when things have gotten sticky. I must disagree on the police advice. While police can enforce certain laws, most do not understand the intricacies of IP law. Only the specialist attorneys really understand it. And not every attorney understands it either, this is why you need to find a lawyer who specializes in IP and patent law.

Police are free. Attorneys are not. Which is why the advice was offered.

An patent attorney is not going to be of much help in this case (the patent attorney I've been working with on a patent I recently filed was close to useless even for patent work). Dont know about an IP attorney. Might be tough finding one with any experience in this area, most are focused on patent cases as well.

If it were me, I'd send a registered letter to the photographer, copying his web service provider, identifying the photos in question, stating that they are unauthorized and include minors, and requesting they be removed by a specific date. Basically a cease and desist letter but with more specifics. Involving the web service provider could help overcome the inertia here.

[WDWFigment]

Police are free. Attorneys are not. Which is why the advice was offered.

An patent attorney is not going to be of much help in this case (the patent attorney I've been working with on a patent I recently filed was close to useless even for patent work). Dont know about an IP attorney. Might be tough finding one with any experience in this area, most are focused on patent cases as well.

If it were me, I'd send a registered letter to the photographer, copying his web service provider, identifying the photos in question, stating that they are unauthorized and include minors, and requesting they be removed by a specific date. Basically a cease and desist letter but with more specifics. Involving the web service provider could help overcome the inertia here.

Like rtphokie says, this is not a patent attorney's area of expertise. You could try either an attorney who is a general practitioner or one who specializes in IP (probably not necessary here, honestly). A good IP attorney is going to be expensive. For someone who knows what they're doing in a major city, you're looking at $400-800 an hour. Is it really worth that?

The alternative would be calling the state attorney general, but they're overworked and are less likely to get results.

Honestly, your best bet is to settle this amicably.

Another thing - I don't understand why people come to photographers for legal advice. That would be like going to a lawyer for photography advice or asking your mechanic how to make a wedding cake. The law is complex, just because photographers have had some experience dealing with legal matters doesn't make them qualified to offer legal advice.

[mrcricket]

Police are free. Attorneys are not. Which is why the advice was offered.

An patent attorney is not going to be of much help in this case (the patent attorney I've been working with on a patent I recently filed was close to useless even for patent work). Dont know about an IP attorney. Might be tough finding one with any experience in this area, most are focused on patent cases as well.

If it were me, I'd send a registered letter to the photographer, copying his web service provider, identifying the photos in question, stating that they are unauthorized and include minors, and requesting they be removed by a specific date. Basically a cease and desist letter but with more specifics. Involving the web service provider could help overcome the inertia here.

The old saying "you get what you pay for" comes to mind. I stick by my advice, as I've been dealing with uber professional photographers from NY to LA for 25 years and dealing with lawyers who know IP law (which includes everything from patent law, copyright law and everything in between).

With that said I don't think the OP can do much for free other than send a letter as you suggest. After that, the next step is to involve a lawyer as this is a civil issue not a criminal issue.

[mrcricket]

Like rtphokie says, this is not a patent attorney's area of expertise. You could try either an attorney who is a general practitioner or one who specializes in IP (probably not necessary here, honestly). A good IP attorney is going to be expensive. For someone who knows what they're doing in a major city, you're looking at $400-800 an hour.

I feel like I need to clarify my statement for those who have never dealt in IP issues. First, when I said IP/patent attorney, understand that most IP shops do specialize. Many are just patent law specialist. The best ones have attorneys with dual degrees (law & engineer, or law & chemistry, etc.). Then there are the IP shops that specialize in copyright law which understand author's, musicians and artist rights. It just so happens the IP firms I've dealt with had divisions for both. WDWfigment, you are right about the cost and it would be expensive and I think a losing case. But I'm no attorney although a know quite a few. And I'm not a pro photographer, though I hire many of them and count many as my friend. I AM an advertising professional and have dealt with many IP issues over my career, which gives me a decent grasp of these type of situations.

[WDWFigment]

The old saying "you get what you pay for" comes to mind. I stick by my advice, as I've been dealing with uber professional photographers from NY to LA for 25 years and dealing with lawyers who know IP law (which includes everything from patent law, copyright law and everything in between).

With that said I don't think the OP can do much for free other than send a letter as you suggest. After that, the next step is to involve a lawyer as this is a civil issue not a criminal issue.

Whether it's a criminal issue depends on the state, and the aggressiveness of the prosecutor and/or attorney general's office. I know it's not a crime here, but there has been recent legislation on similar matters. Since the AG office is a political branch, it doesn't always attempt to enforce the law as it actually exists.

I feel like I need to clarify my statement for those who have never dealt in IP issues. First, when I said IP/patent attorney, understand that most IP shops do specialize. Many are just patent law specialist. The best ones have attorneys with dual degrees (law & engineer, or law & chemistry, etc.). Then there are the IP shops that specialize in copyright law which understand author's, musicians and artist rights. It just so happens the IP firms I've dealt with had divisions for both. WDWfigment, you are right about the cost and it would be expensive and I think a losing case. But I'm no attorney although a know quite a few. And I'm not a pro photographer, though I hire many of them and count many as my friend. I AM an advertising professional and have dealt with many IP issues over my career, which gives me a decent grasp of these type of situations.

You're right about the patent attorneys. Because these dual degree folks are rare (most lawyers have BS liberal arts undergrad degrees), and because the PatBar is exceedingly difficult, hiring a patent attorney is expensive (and unnecessary). Even a more general IP attorney will be expensive, but generally not as expensive as a patent attorney.

Personally, if I were in your shoes, and I didn't want to send a letter myself, I'd find a cheap local attorney to do it. The letter will have more impact just by virtue of it being on a law firm's letterhead.

[MICKEY88]

That would be like going to a lawyer for photography advice .


sort of like when people ask you for photography advice..LOL

[WDWFigment]

sort of like when people ask you for photography advice..LOL


As others have proven countless times in other threads, I know very little about the technical side of photography.

I'm just a dude with a nice camera... :cool2:

[2Tiggies]

OP, you have seen the photos you refer to; is it at all possible that the your family members (you mentioned them being in the background) could be "blurred" with editing software, without ruining the impact of the photo? If so, do you think it might be worth asking these folk whether they would be willing to do so?

You probably can't rule out the fact that they have kept the pictures on their profile just to annoy you, however it is equally possible that they feel that those specific shots work well.

I am always for settling things through negotiation, preferably amicably, with launching into an aggressive address of the situation being a last resort. Although it is clear that you have made several attempts to address this issue, your posts also indicate some personal criticism of your Photographer family members which leads to the question: do you tend to criticize their business and throw in negative remarks about them and their capabilties during these discussions with them? I am not suggesting that you do this, but it is very easy to inadvertently let little remarks slip when a situation is intense and it iw worth keeping in mind when discussing the issue and putting your point across to keep strictly to the point you wish to address with resolution satisfactory to both parties being the primary objective.

Whichever route you decide to go, I wish you all the very best. :goodvibes

[2Tiggies]

I'm just a dude with a nice camera... :cool2:

..... and you just happen to take some of the most AWESOME photos ;)

[Cinbride]

thanks for the replies. I guess I should have clarified myself more. When I say legal advice, I really just want to know if I had any right to tell them to take them down since they are minors and they have asked others for permission to use pictures of them. I don't want to involve lawyers or anyone else. As far as coming here for advice, I figured I would ask to see what the general consenus was. thanks again

[MICKEY88]

As others have proven countless times in other threads, I know very little about the technical side of photography.

I'm just a dude with a nice camera... :cool2:

LOl a dude with a nice camera, that pushes it to the limit with his skills..:thumbsup2:thumbsup2

[manning]

Don't know if this helps but here it is

http://pauccomm.adventistfaith.org/news-photo-permissions-not-usually-necessary


News Photo Permissions not Usually Necessary

By Gerry Chudleigh and Kermit Netteburg

Sooner or later everyone who produces a church newsletter or Web site will wonder, "Is it OK to include a photo without permission? Will the people in the picture sue me when they see their faces on the Internet or on the cover of the denominational paper or church newsletter?"

In fact, the rules for the use of news photos are quite clear, and they are much less restrictive than many people think. These rules are based on the United States constitution's protection of free speech and a free and independent press, and upon long-established privacy guidelines.

Like all news media, church newsletters and news magazines are not required to ask permission from any of the people who appear in news pictures or stories. Getting permission would often destroy the integrity of the news and would make the production and delivery impossibly slow. A "free and independent press" would become meaningless. Church news media generally print all news-related photos without permission unless doing so would violate one of the four rules that guide all responsible journalists:

1. Do not intrude into anyone's solitude, seclusion or private property without permission. This rule prohibits photos taken without permission in any place a person might reasonably expect privacy. So taking pictures of boys brushing their teeth in a community bathroom might stretch that limit. But pictures of people in public places at a youth camp, school, church, constituency meeting or camp meeting are not an invasion of privacy.

2. Do not publish (whether by photos or stories) private information without permission. Private information would include contact information, such as address, phone number or email address, plus other personal information not required for the story. So when publishing a story about a church-sponsored home for pregnant teen-age girls, make sure none of the individual girls are recognizable in the photos—without permission. And don't publish their first and last names—without permission. The fact that these particular girls are pregnant is private information.

3. Do not print any photo or story that presents the subject in a false light.

4. Do not appropriate any photo of any person for any commercial use (such as advertisements, or even for illustrations months after the news event) without permission. For example, if you take a photo of a child's smiling face at the camp swimming pool in July, you might put that photo on the cover of the church newsletter, or even the local newspaper, in August or September -- if it is related to a news story inside. But if you produce a brochure entitled, "Your Friends the Adventists," do not use that photo on the cover, or even inside, without permission. That would be a commercial use, even if you give all the brochures away for free.

But there are two exceptions to the commercial use principle. Sometimes you can use a person's picture in a brochure or advertisement without permission. First, assuming that the photo is from a newsworthy event (broadly defined) at a public place, if the individual is not highlighted, but is incidentally visible among a large group of people, it is permissible to use the photo. How many people constitute a large group? Six or eight people is getting toward large. A group of 25 is clearly large. Second, you can use the photo for commercial purposes if the person cannot be identified in the photo. So a back shot, or a portion of a person's body, would be permissible.

5. In addition, unlike the public media, church papers generally follow the rule of not publishing photos or stories that present people in a negative light, even if the facts warrant such coverage.

Most schools and summer camps incorporate a photo release in the enrollment application, and because parents and their children usually enjoy seeing their faces in print, most people sign it. This is not necessary for news photos, but by signing the statement the student, camper or parent agrees that the child's photo may be used for broader publicity purposes, including brochures, slide shows, Web sites, etc. This also gives the parent an opportunity to NOT grant such permission in case they do not want the child's location known for some reason.

The five rules listed above apply to Web sites as well as print media. Most church Web sites include both design elements and content. The content, which often includes news, changes frequently, but the design elements are permanent (until a redesign). If you incorporate the photo of any person into the design--for example in an upper corner in conjunction with a logo--you are probably using that person as a model and you must have a release. But news photos that appear with news stories; for example, photos from the most recent youth ski trip, you can put there without getting model releases.

On Web sites the context of the photo is important. If the photo accompanies a news story, the photo is OK without permission. But if the photo is used to promote the purchase of supplies for Vacation Bible School, then the person is being used as a model and must be asked for permission.

All this assumes, of course, that you have permission from the photographer or other owner of the image to use the photo itself. If photographer Jones takes a picture of a child at a school fair, that image belongs to Jones and is automatically protected by copyright laws. If he submits the photo to you with a news story, you can publish it on a Web site and in print. But if anyone else wishes to use that photo, in print or on a Web site, they must obtain permission from Jones.

But aren't there new laws prohibiting putting photos of minor children on Web sites? The answer is no. There are laws about children and Web sites, but none prohibit putting news photos of children on Web sites. The three laws most often suspected of prohibiting pictures of children are the Federal Educational Rights and Privacy Act (FERPA, 1974), the Children's Online Privacy Protection Act (COPPA, 1998 & 2001) and California's Online Privacy Protection Act (CA OPPA, effective July 1, 2004).

COPPA says "the operator" of a commercial Web site cannot gather personal information directly from children under the age of 13 for marketing purposes without the knowledge and permission of the parents. COPPA does not prohibit anything on the web. It only says that whatever you are doing, if it involves using the web to gather information from children, you must plainly state what you are doing and you must obtain permission of the parents (text of COPPA, explanation of COPPA).

CA OPPA requires prominent disclosure statements on sites that gather personally identifiable information from any California residents, regardless of age. Like COPPA, this law does not limit photos of anyone of any age when the photo is news related.

FERPA gives parents of minor students who attend federally funded schools the right to inspect the "educational records" of their minor children and requires that those "educational records" not be disclosed to anyone else. "Educational records" is defined as grades, GPAs, test scores, religion, citizenship and several other items. But this same law also specifies that schools may disclose, without consent, "directory information" such as a student's name, address, telephone number, date and place of birth, honors and awards and dates of attendance. Photographs are not "educational records," and can be published without permission unless the parent has submitted in writing a request that the school not publish their minor student's photo.

However, schools (that receive federal funding under certain programs) must develop privacy policies related to publishing "directory information," and those policies must be communicated to parents at least annually. Parents then have the right to request that some or all directory information for their child not be made public, and the school must honor that request. If a photographer comes onto the campus to develop a news story, it is the responsibility of school officials to let them know what the school privacy policies are, and make sure they are followed.

So, there are no laws prohibiting photos of anyone in print or on the Internet if those photos do not violate the four privacy rules. But to paraphrase the apostle Paul, "Not everything that is legal is wise." Schools, summer camps, youth clubs and churches are probably wise to develop policies that balance the freedom of the press with the protection of children and the comfort of parents. Your church or other organization may have the right to publish photos of members or their children, but those members and guests also have a right to stop attending a church if the church does not respect their wishes regarding privacy.

[Marlton Mom]

Regarding the church newsletter article...
As someone who was responsible for photography at a pre-k to 8th grade school I can tell you beyond the shadow of a doubt that parents are going to have major concerns about exactly how any photo of their child will be used, no matter what the publication or use.

While it's true that the photographer my have certain rights, a photographer should always understand that when it comes to photographing children, parents will always have concerns, valid or not, about how the pictures will be used, regardless of the actual, legal rights of all involved.


It's always best to secure photo releases from the entire group before you begin photographing. This way you know who to include in your shots and who to ask to "Step aside please" when you need to take a photo. This was a tricky thing to do when it was a child but I required the parent to inform the child that this would be the way that things would have to work if the parent did not want their child in school photographs.

The bottom line is that the best course of action is to always respect the rights of those who have concerns about being photographed, regardless of any rights that you may have as a photographer. There are so many other people that don't have these types of concerns that you will have plenty of opportunties to take relevant pictures.

Just my 2 cents and years of actual experience speaking...

Marlton Mom