Photographers rights to use a photo?

[wendyt_ca]

I have been slowly working to start my own photography business part time for a couple of years now. I have done a few photoshoots and the past couple of months have been prepping everything to start my own site and start actually doing it. But I am running into an issue with someone I used to be friends with but we no longer are because she is basically a nut case.

So Anyway about 2 years ago she asked me to do an outdoor photo shoot of her and said since I will do it without charging her that I can use the pictures for my portfolio and to promote my work when I get started. And She gave permission to put them on facebook at the time and they are still there completely open to anyone and she knows this. Well now she has decided in the past month she wants to also be a photographer and went out and bought a DSLR and so on and is putting up her own site. The other day she put up something on her facebook and is telling people I am copying her by trying to do photography (even though I had been doing it first - and people are telling her this which she is not happy about). I have just been ignoring it because I just want to do something I enjoy and if she wants to also do it then best of luck to her.

So now she is trying to be difficult and messaged her ex (who I am friends with) and told him to tell me that she does not give me permission to use the pictures I took of her because she does not want them online. Well they are already online as I stated before and she has no problem with them there. She is doing it just to be petty and try to hold me back. I only have so many photo shoots I have done and I really need them to display my work. They are incredibly flattering pictures of her and there is no real reason other than a grudge. If they were taken by any other photographer she would be fine with the use (she even let another photographer use boudoir pics of her on their site). I personally don't prefer having pictures of her on my site at all but I was ignoring my bad feelings (and these are stong) towards her because they are really good pictures and some of the ones I am most proud of. So I was putting personal feelings aside for now. She hadn't known yet I was using them so it came from pretty much no where and she is trying to do what she can to cause problems (this is what she is like). She knows that they are incredibly good and hates that she's the subject.

Anyway I could go on all day about the details behind it but I just included the back story cause I think it is needed in this case. I was planning to use them and really want to so I was wondering what my rights are. It kills me that something I love and am trying to enjoy is being brought down by someone else's negativity.

 

[photo_chick]

Your story is a pretty common one.

It's a sticky area. On one hand the photographer does own the copyright to the images. And yes, that means you can use them in your portfolio and for self promotional purposes. However, more and more clients are being a pain in regards to how their likeness is used so many photographers I know have a clause in their contract that specifies the images may be used for portfolio/self promotional purposes by the photographer. Or they have a model release that allows for specific usage of the client's likeness. This is just one example that having things in writing, no matter how small the job, is important.

If it were me I'd just take the images off and be done with it. To me it's not worth the time and trouble, especially when you keep in mind the fact that your portfolio should evolve with your work so in a year or so those images probably won't even be included in there. I'd also make sure the friend isn't trying to pass them off as her own because I have seen people do that.

 

[2Tiggies]

Seeing as her free photo session was conditional upon you being able to use your images - or that is my understanding from the way you explained it- could you not then ask her to pay you for the session and agree that in return, you will remove the photos in question? You're probably going to end up taking them down eventually to put an end to contact with her, so why not at least get paid for your work if she is not willing to uphold her end of the original agreement?

 

[BillyBuff]

Your story is a pretty common one.

It's a sticky area. On one hand the photographer does own the copyright to the images. And yes, that means you can use them in your portfolio and for self promotional purposes. However, more and more clients are being a pain in regards to how their likeness is used so many photographers I know have a clause in their contract that specifies the images may be used for portfolio/self promotional purposes by the photographer. Or they have a model release that allows for specific usage of the client's likeness. This is just one example that having things in writing, no matter how small the job, is important.

If it were me I'd just take the images off and be done with it. To me it's not worth the time and trouble, especially when you keep in mind the fact that your portfolio should evolve with your work so in a year or so those images probably won't even be included in there. I'd also make sure the friend isn't trying to pass them off as her own because I have seen people do that.

I definitely agree you'll eventually will have to remove the photos especially if you are using them to promote yourself. In order to use photos of someone for promotional purposes you must need a signed model release from that person. Even though this was a free shoot and the agreement was word-of-mouth it's the paperwork that will hold up.

I would just take them down and forget about her.

 

[tlseege]

Even if you have a signed model release, I'd definitely not use them. It was from awhile ago, and so your photography skills have probably gotten even better since then anyways. Keep shooting, get releases signed, and don't launch your business until you're ready and have all your ducks in a row.

 

[manning]

Your story is a pretty common one.

It's a sticky area. On one hand the photographer does own the copyright to the images. And yes, that means you can use them in your portfolio and for self promotional purposes. However, more and more clients are being a pain in regards to how their likeness is used so many photographers I know have a clause in their contract that specifies the images may be used for portfolio/self promotional purposes by the photographer. Or they have a model release that allows for specific usage of the client's likeness. This is just one example that having things in writing, no matter how small the job, is important.

If it were me I'd just take the images off and be done with it. To me it's not worth the time and trouble, especially when you keep in mind the fact that your portfolio should evolve with your work so in a year or so those images probably won't even be included in there. I'd also make sure the friend isn't trying to pass them off as her own because I have seen people do that.

No signed release, can't use. take it down. A photo used in an advertisement needs a release because the person in the photo could be assumed to be an advocate for a product, service or idea.

Also, if a person has paid you to take a picture of them they have purchased the right to control the use of the picture. You may own the copyright but the client controls the use. Knew someone who had wedding portraits in his studio and had to take them down. He didn't have a releae.

 

[wendyt_ca]

No signed release, can't use. take it down. A photo used in an advertisement needs a release because the person in the photo could be assumed to be an advocate for a product, service or idea.

Also, if a person has paid you to take a picture of them they have purchased the right to control the use of the picture. You may own the copyright but the client controls the use. Knew someone who had wedding portraits in his studio and had to take them down. He didn't have a releae.

She did not pay me. The payment was supposed to be that I could use them when I start my business.

Thanks for the great info

 

[photo_chick]

No signed release, can't use. take it down. A photo used in an advertisement needs a release because the person in the photo could be assumed to be an advocate for a product, service or idea.

Also, if a person has paid you to take a picture of them they have purchased the right to control the use of the picture. You may own the copyright but the client controls the use. Knew someone who had wedding portraits in his studio and had to take them down. He didn't have a releae.

In most cases you can use it for your personal portfolio with no release. It's not an advertisement. Photographers hold the copyright, not the client. You can't sell the photograph as stock (which would be for advertising) but you can use it in your portfolio and you can hang it in a gallery and sell it as art without a model release of any kind. But as photographers who want to make clients happy we get model releases as a good business measure. No one wants to be the jerk photographer who wouldn't remove little Jimmy's pictures from their website because that's not good for business. So you get permission in writing.

The client commissioning the work does not negate the photographer's copyrights unless that is stipulated in the contract. Paying a commission for work to be created also does not give you the rights to do what you wish with that work. A client can't just go xerox the prints they just had made. THey don't have the rights to do that unless the photographer grants them.

There is a photographer, Phillip-Lorca diCorcia, who set up his camera on a street corner in New York. He photographed people without their knowledge or consent. His work ended up in a gallery and was sold. A rabbi in one of the photos sued the photographer and lost. Photography can be sold as art with no model release and there is a long history of this.

Now social media is a whole other entity. Is that a portfolio? Is that beyond the scope of normal self promotion? It's still a big question mark in a lot of ways.

 

[manning]

In most cases you can use it for your personal portfolio with no release. It's not an advertisement. Photographers hold the copyright, not the client. .

In the example sighted:

Since the client commissioned the work (portrait) the client holds the right of use. The photographer holds the copy right. Life is confusing at times.

Often little comes of it but in that case the client was adament the portrait not be shown.

In short, get a models release. More and more your seeing this be done. We live in a world of litigation.

In the OP case it is best to take it down. Everything was verbal and it has gotten to the stage of she says/he says. Best he he devote his energy to what he wants to do....take pictures.

 

[wendyt_ca]

In the example sighted:

Since the client commissioned the work (portrait) the client holds the right of use. The photographer holds the copy right. Life is confusing at times.

Often little comes of it but in that case the client was adament the portrait not be shown.

In short, get a models release. More and more your seeing this be done. We live in a world of litigation.

In the OP case it is best to take it down. Everything was verbal and it has gotten to the stage of she says/he says. Best he he devote his energy to what he wants to do....take pictures.

She didn't commision the work. We were friends at the time and I was talking about wanting to do my photography. She asked me to take the photos of her to help me build my portfolio and use for this. We agreed this was the payment and I did not get paid and I actually paid for the gas for us to drive to the location. Spent a lot of time doing the photo's. They are on facebook completely open to the public right now which she doesn't have any issues with she just has a grudge against me because me and her ex are still friends so she wants to give me a hard time. The photo's aren't up on the actually site yet cause it isn't published and I never told her she did this out of no where to find a way to to be difficult.

 

[photo_chick]

In the example sighted:

Since the client commissioned the work (portrait) the client holds the right of use. The photographer holds the copy right. Life is confusing at times.

Often little comes of it but in that case the client was adament the portrait not be shown.

In short, get a models release. More and more your seeing this be done. We live in a world of litigation.

In the OP case it is best to take it down. Everything was verbal and it has gotten to the stage of she says/he says. Best he he devote his energy to what he wants to do....take pictures.

You should really learn a little more about the subject.

 

[manning]

You should really learn a little more about the subject.

Maybe both of us should. I'll defer to experience.

OP, right or wrong your challenge is proving it. Even when things are in writing a judge and/or jury has the final say. save yourself the grief. You're in a peeing contest. Just walk away from it. You'll be happier with her out of your life.

 

[michellejed]

If it were me I would ditch her photo's and maybe to expand your portfolio you could find out from your local high school who might be in need of free Senior pictures, gives you the experience and makes some kids day!

 

[maccagerl]

In the example sighted:

Since the client commissioned the work (portrait) the client holds the right of use. The photographer holds the copy right. Life is confusing at times.

Actually that is not true. The photographer holds the copyright, which means the client cannot sell the rights to the photo, and technically can't even make copies of the photo to give to friends and relatives .
In order for the client to be able to use the photograph, the photographer would have to license the photo to him, usually for a fee.

However, in order for the photographer to be able to sell or license the photo for commercial use, he needs to have a signed model release from the client.

Have you ever used Photopass at WDW? You have essentially commissioned and paid the Disney photographers to take pictures of you. So you own the photos , right? Well, yes, you own the cd of photos they sent you. But if you want to go to Walmart and get copies made, they will ask you for the copyright release before they will print them for you, and Disney includes that release along with the photos on your CD.

Same thing with photos of your kids that you have commissioned and paid for at Olan Mills or Sears. If you take the photo to Walmart (or wherever) to have copies made, they will look on the back of the photo, see the photo is copyrighted by Olan Mills, and refuse to make copies unless you show them a release form.

 

[maccagerl]

I was planning to use them and really want to so I was wondering what my rights are. It kills me that something I love and am trying to enjoy is being brought down by someone else's negativity.

I would be the grownup here and just take down your friend's photos and move on.
You have way too much to do in starting your business than to waste time bickering with your ex friend over something so trivial.

Unless you have a signed model release from her, you can't use her photos for advertising. You should have either gotten paid at the time of the shoot, or had her sign an agreement stating you could use her photos. Consider it a lesson learned and just move on.

A lot of portrait photographers have their clients sign a model release before their shoot. You can do a google search to find some very short and simple releases.

YOu should also search for a simple contract that your clients can sign when you first meet with them about the shoot. It should cover things like non-refundable deposits, sitting fee, price for photos/downloads, how much time until photos are delivered, how to deal with clients who don't like photos and want a reshoot- basic things like that.

Good luck with your business endeavor! I'm sure you will have lots of new portraits for your facebook in no time!