Thread: Model Release question (ugh! again!)

So, some of you might remember me from a previous topic here where I was having issues with a videographer selling a DVD of some performances (including mine) at a particular event to the general public without having made all the performers aware of this. Most of the performers had been under the impression that only performers would be able to buy that DVD, and that it would not be advertised outside of that event. The contract we signed was vague in that regard, but since we did sign a contract it looks like the matter has been left alone.

Well, that was then. I am having a very similar issue now, except this time it's a "photographer" (I put it in quotes because this person really isn't a real photographer, but that's besides the point), I DIDN'T sign a model release form or a contract of any kind, I wasn't even aware this person was taking pictures of me at all, let alone taking pictures with the intention of editing and selling them. I have never met this woman in my life and I did not request her services nor did I allow her to use me as a subject for her commercial work.

She did message me after the event asking for my permission to sell my photos on her website. She photoshops the pictures to the point where I can't even be identified on most of them, so I politely told her she did not have permission to sell the pictures where I can be identified.

So, this person had the nerve to complain to me that she had already been working on my pictures and that now she has to go back and crop the ones where my face can be seen, etc etc, as if it were MY fault that she decided to work on the pictures before even acquiring permission! She also attempted to blackmail me by saying that since I am not "working with her" she will not allow me to use those photos on my website and whatnot. Now, I was not intending to use the photos anyway as I did not like her work (and that is one of the reasons I really do not want my image associated with it), but I thought this was extremely childish and unprofessional of her.

I responded that I am now requesting her to cease using any and all of my pictures for commercial uses.

Now, this lady just can't take a "no." Nope, she is taking this very personally and wants to continue selling my pictures (except for the ones where I can be identified, which she says she is going to crop). She lectured me about how I performed at a public venue where photography was allowed, therefore (in her mind) she has a right to take pictures and sell them.

This does not seem right to me. To my knowledge, if you are going to use pictures you took of someone else for commercial purposes, you need to have them sign a model release form. Am I wrong? It seems unthinkable that I could be.

How would you proceed in dealing with something like this?

I think as long as it's in public you may be SOL. I think back to paparazzi photos that are sold to tabloids without consent from the subjects for reference, but I could be wrong. I think in most public cases you have to have non-consent but not affirmative consent. I'm so sorry you are dealing with this.

If you did a public performance, she can legally sell the pictures w/o your permission. She was doing a courtesy by asking. Sorry. When you're in the public, your image is fair game. How/why do you think all the papazazzi legally sell images of stars doing their grocery shopping, etc.?

Guys, the law is different when it comes to news venues. Newspapers, magazines, etc as far as I know are protected by different laws and are not considered commercial usage of the photos.
Also, I was performing at a restaurant. So you are telling me someone can take pictures of any restaurant performance without the subject's permission to sell them? I honestly hope that's not the case.

Originally Posted by yameyameyame

Guys, the law is different when it comes to news venues. Newspapers, magazines, etc as far as I know are protected by different laws and are not considered commercial usage of the photos.
Also, I was performing at a restaurant. So you are telling me someone can take pictures of any restaurant performance without the subject's permission to sell them? I honestly hope that's not the case.

[disclaimer - not a lawyer]

In general, any commercial use of an image where you are recognizable requires a release. Editorial use does not and any use where you are not recognizable does not.

There is some US info here: American Society of Media Photographers

A restaurant is considered private property, so photography restrictions can be made by the owners of the location. If the owners allow photography, then people can take pictures. Again, those pictures would generally require a release to be used for any commercial purpose.

[disclaimer - not a lawyer]

There are two different issues here. One is the issue of what a photographer working with a news publication can do. The other is the issue of selling photos for commercial use outside of a news context.

If you are performing in a public place (which a restaurant would be for these purposes) then it would be acceptable for a photographer representing a news publication to take your photo and make it available to the news publication in question. This would typically be done only if there's something newsworthy about the restaurant, such as a grand opening, a review written by the publication's restaurant reviewer, a special event taking place at the restaurant that is worthy of news coverage, etc. It would be legally acceptable for the news publication to hire a freelance photographer to produce photos for this purpose, and it would not be necessary for them to have you sign a model release.

EXAMPLE: Let's suppose you were dancing at a restaurant with a shamadan and a random audience member was taking photos of you just for fun. And let's suppose your shamadan were to set the restaurant on fire and burn it down. In this situation, that random audience member could legally sell the photo of you and your shamadan to a news publication for use in conjunction with a news story saying the restaurant burned down. After all, the probable cause of the fire is a very normal element one would expect to see discussed in the news coverage of the event.

The other situation in which a photo might be sold by a photographer would be for "commercial" use. For example, selling the photo through a stock photography site for any random idiot to purchase and use any way they please, such as illustrating an advertisement for a new strip club in town. For this, the photographer would need a model release. Rachel Brice signed such a release in a photo session with a photographer some years ago, and her photo has been used in magazines, on book covers, etc. This use of your image MUST have a model release signed by you.

Also not a lawyer, but further expanding on the above...

I think if a photographer is NOT selling commercial licensing to photographs of you, they do not require a model release.

Any person doing anything in a public place is subject to being photographed. The photographer owns the rights to those photos -- it's his/her creative work being sold, not yours.

The exception, as I understand it, is when the photographer is selling a license to use the photos commercially. If your photo is going to appear in an ad in a publication or online, or in a stock photography collection, for instance, then the photographer needs a model release.

It's very hard for us to get used to the idea that we don't have control over photos of ourselves, but in most cases we just don't. If you're out and about, doing things in the world, whether you're walking down the street or performing a bellydance, photographers have the right to document it.

I just want to back up what Shira and Lauren are saying. The confusion in your post seems to be stemming from a misunderstanding of what constitutes "commercial use". In this context, it refers to the use of your image in promoting a commercial enterprise.

You have a right to prevent your likeness from being used for advertising purposes without your consent. Thus, a photographer can't sell a photo of you to a stock agency or other commercial enterprise without a model release.

Under normal circumstances, however, you can't prevent a photographer from selling a print or digital copy (for display purposes only) of a photograph of you that was taken in public. That's their fair use of their own artistic work, over which they hold the copyright.

Originally Posted by Ainsley

I just want to back up what Shira and Lauren are saying. The confusion in your post seems to be stemming from a misunderstanding of what constitutes "commercial use". In this context, it refers to the use of your image in promoting a commercial enterprise.

You have a right to prevent your likeness from being used for advertising purposes without your consent. Thus, a photographer can't sell a photo of you to a stock agency or other commercial enterprise without a model release.

Under normal circumstances, however, you can't prevent a photographer from selling a print or digital copy (for display purposes only) of a photograph of you that was taken in public. That's their fair use of their own artistic work, over which they hold the copyright.

I didn't think about that. If that's the case, that's pretty upsetting.

But that's odd that everything I find is on editorial vs. commercial, where generally speaking it's ok to sell the pictures for editorial purposes (rights of the photographer protected) and not ok to sell the pictures for advertising purposes (rights of the subject protected), and nothing is mentioned in regards to just the sale of people photos in general, for purposes that are neither editorial nor commercial. Meaning, I haven't found anything that positively states that in a case like mine, the photographer's rights trump mine.

So I'm seeking legal opinion on this. Not that I'm going to sue the woman but I would really like to know my rights on this matter, especially for future reference because stuff like this seems to keep coming up and I would like to have control over what I can so that I don't get exploited.

I'm surprised no one has responded yet with a similar experience?

I have a question, but so far no lawyers have come forth haha, if dance is considered art, and dance is photographed in performance, and that photographer attempts to sell it for financial gain, isn't that like going to the Louvre taking a picture of a painting and trying to sell an unauthorized print?

Originally Posted by diyung

I have a question, but so far no lawyers have come forth haha, if dance is considered art, and dance is photographed in performance, and that photographer attempts to sell it for financial gain, isn't that like going to the Louvre taking a picture of a painting and trying to sell an unauthorized print?

!not a lawyer! :-)

Because an artist's copywrite covers the right to copy original works, doesn't matter if it is art or not.

In Australia there is a minimum requirement for something to be considered an original work. In dance it couldn't be a single hip drop for example... but 100 hip drops done in a particular pattern to specific music may be.

IMO unlawful copying of a choreography couldn't be done via a photo because you aren't copying the choreography in its entirety or even a significant part And it is being displayed in a different medium.

Would "dancing" the mona lisa infringed the rights of the copywrite holder?

It would be very hard to argue that a photograph is infringing on the copywrite holder of a choreography. But most courts will let you spend thousands of dollars trying ..l;,

Originally Posted by NandaDncer

!not a lawyer! :-)

Because an artist's copywrite covers the right to copy original works, doesn't matter if it is art or not.

In Australia there is a minimum requirement for something to be considered an original work. In dance it couldn't be a single hip drop for example... but 100 hip drops done in a particular pattern to specific music may be.

IMO unlawful copying of a choreography couldn't be done via a photo because you aren't copying the choreography in its entirety or even a significant part And it is being displayed in a different medium.

Would "dancing" the mona lisa infringed the rights of the copywrite holder?

It would be very hard to argue that a photograph is infringing on the copywrite holder of a choreography. But most courts will let you spend thousands of dollars trying ..l;,

This makes sense, but I'll admit Yame's situation gives me a yucky feeling.

What about the opposite?
I've had a photographer take pictures of me at a show, where I was unaware he was taking pictures and signed absolutely NO release for anything, btw...then contacted me later to tell me he had taken photos and I was welcome to use them on my webpage, business card, etc...FOR A FEE!!!!
Can he do that?
He did post some onto his facebook page, which I saved to my own computer, so I do have access to some of them. Those weren't meant to be free, either....

Originally Posted by harmoney76

What about the opposite?
I've had a photographer take pictures of me at a show, where I was unaware he was taking pictures and signed absolutely NO release for anything, btw...then contacted me later to tell me he had taken photos and I was welcome to use them on my webpage, business card, etc...FOR A FEE!!!!
Can he do that?
He did post some onto his facebook page, which I saved to my own computer, so I do have access to some of them. Those weren't meant to be free, either....

That's what professional photographers do. They take pictures and get paid for the images they create. You don't have to buy them, of course, but he's just doing his job.

I know it's really hard for us to get used to the idea that someone else can own the rights to an image of US. But that's the law. I don't personally agree with it, I think the model should also have some rights. But when we weren't hired to model and we're just doing what we do while being photographed, that's the law.

We are protected if our image is used in a way that's libelous, slanderous, damaging to your personal/professional reputation, etc. If your picture appears as an illustration for a magazine article about prostitution, for example, you can take the magazine to court.

And, once again, if someone buys or otherwise obtains the photo and uses it to sell a product, you are protected.

Otherwise, the photo belongs to the photographer regardless of who is in it.

That just seems wrong, that I cannot use my own photo...