Image Release....

[ErikJonas]

If your going to use or sell a picture of someone you need a release unless its like taken on a public sidewalk or something of this nature...

I was wondering..I have this image of this older guy thats a really stunning picture...If he's passed away do i no longer need a release?I mean obviously he'd not be able to sign off on it...lol so i'd think the release is not needed....Anyone know the actual legal aspects of this?

 

[John Angulat]

Hi Erik,

I would venture to guess the answer is yes, you'd need a release.
The rights to his likeness would pass to his estate, heirs, successors or assigns, etc. upon his death.
You're correct in using the "public sidewalk" analogy, but is this individual an anonymous face in the crowd? You seem to imply you have a portrait of sorts. In that regard, it wouldn't hold up.
Hopefully the pro's here can give you much more detailed rules/rights information.

 

[beth anthony]

yes, i believe you still need a release even if he's dead. i think you also need a release even if they're on a public sidewalk if you're using the picture for commercial purposes.

 

[Asher Kelman]

Hi Erik,

Here's some ideas for a framework although for a legal opinion, you need a lawyer, LOL! If he sat for you in private, there may well be implied consent. I don't think there would be any issue with using that in an exhibit of your art. Selling it for use in merchandise such as a marketing campaign for diaries, computers or coffee would likely trigger a claim to the proceeds or a cease and desist order.

If you were reporting "news" then, at least in the USA, you'd be able to use the image. Just make sure you only use it in a context that does not imply negative things about the person and you have another protective fence around your use.

If the picture is worthy of the person and posted in a laudable context then I'd personally feel pretty safe in my actions.

Look, you can have consent, but if the use of the picture demeans that person, you still might be subject to an expensive lawsuit!

Just show respect for folk and likely you'll be OK.

Asher

 

[ErikJonas]

......................

It was a public event i was at...Invited as the photographer, it was more of a gathering...I dont know if this guys passed away or not...Its just such a nice image...I'm thinking it might sell as a limited edition print...MIGHT....

And Beth....Anything in public is fair game...Even for commercial use...Example find a ad that features a busy New York side walk...Do you think every one of the people in that shot sighned a release?...And thankyou for casting your 2 cents Beth =) You should join in the conversation more often.....

 

[Bart_van_der_Wolf]

If your going to use or sell a picture of someone you need a release unless its like taken on a public sidewalk or something of this nature...

Hi Erik,

That depends on your specific jurisdiction. Portraits taken in the public space are not necessarily allowed in the Netherlands, as they can e.g. be subject to portrait right, or considered an invasion of one's privacy. There is jurisprudence where the judge ruled in favor of the persons in the portrait, requiring the photographer to pay damages, and destruction of all materials based on those portraits (in casu; picture postcards).

I was wondering..I have this image of this older guy thats a really stunning picture...If he's passed away do i no longer need a release?I mean obviously he'd not be able to sign off on it...lol so i'd think the release is not needed....Anyone know the actual legal aspects of this?

If it was for the Dutch legal ramifications I might give a few pointers, but even then, I'm not a lawyer. Ultimately it's the judge who decides if things are allowed.

It was a public event i was at...Invited as the photographer, it was more of a gathering...I dont know if this guys passed away or not...Its just such a nice image...I'm thinking it might sell as a limited edition print...MIGHT....

Chance has it that if you were hired to do the job, and getting paid constitutes a contract as much as a verbal or written agreement does, you don't even have the copyright. But then only you and the other party know what happened in detail. Besides, it may have been a public event, but maybe it was taking place on private property? In that case you would have to comply with the rules of the property owner.

And Beth....Anything in public is fair game...Even for commercial use...

Certainly not in several European venues. There are a number of conditions that need to be satisfied before something can be considered "fair game". They may differ for your jurisdiction.

In these matters it is not very safe to assume things, you'd better be pretty sure (which is not always easy with legal matters, unless you've spent considerable time studying it).

Cheers,
Bart

 

[Nichole Lampron]

I know this is old, but it is something that I have come across in my work with my clients. I have been hired to work at gatherings in the past and the agreements that was always agreed upon was that the shots that I took was the sole property of the event organizers and I had no legal right to anything that I shot other than having the right to post the shots to my website as a way to promote myself and my work. Other than that I cannot sell or use those shots in any other marketing materials I use or distribute.

As for shooting in public, I know that I have several good shots from New York's Times Square when I was there last year and I have been able to use those in anyway I see fit because they are general in nature and not focusing on anyone subject. If I was shooting one specific person or persons that I saw in the crowd and they were the central focus of the shot then I would be required to have a release from that person or persons. That is my understanding of the law here in the States anyways. I know other countries are different and that if I was going to be dealing with clients in another country or was going to be visiting another country, I would cover myself by having releases with me for every single person and place I shoot just to cover myself.

That is the best advice I can offer, when in doubt, get a release.

 

[Asher Kelman]

I know this is old, but it is something that I have come across in my work with my clients. I have been hired to work at gatherings in the past and the agreements that was always agreed upon was that the shots that I took was the sole property of the event organizers

Nicole,

You are, I believe in error. The photographer owns the pictures unless he/she is a "Photographer for hire" and that was the prior agreement. for example, if I hire a second shooter at an event, I can control the images. In the case of a private estate or person where you are brought in as the photographer, they can make stipulations in advance about the use of such pictures. If you agree to these and sign, then that defines what you can and can't do.

and I had no legal right to anything that I shot other than having the right to post the shots to my website as a way to promote myself and my work. Other than that I cannot sell or use those shots in any other marketing materials I use or distribute.

Unless specified in an agreement you can do what you like except that you cannot use the pictures in a way that denigrates that person or entity. For a particular job, f there's a chance of future earning on these pictures elsewhere, then get legal advice, just to be safe.

As for shooting in public, I know that I have several good shots from New York's Times Square when I was there last year and I have been able to use those in anyway I see fit because they are general in nature and not focusing on anyone subject. If I was shooting one specific person or persons that I saw in the crowd and they were the central focus of the shot then I would be required to have a release from that person or persons.

Nicole,

It's nice to have a release but hardly the law! Folk can object but you can stil take the picture. In France, for example, there might be the expectations you assign to New york city. In the USA, owever, there's enough well publicized and failed attempts by unsuspecting pedestrians objecting to public use of their unauthorized photograph, that I'm confident to shoot anyone I want without permission beforehand or consent after the fact!

Still, you can be gracious and give a card and offer some prints or a picture by email. If someone objects I might very well delete the image, but then I might not!

.... was going to be visiting another country, I would cover myself by having releases with me for every single person and place I shoot just to cover myself.

That is the best advice I can offer, when in doubt, get a release.

Jessica,

So in a demonstation, a street market in Harari Zimbabwe, or downtown Durban or maybe by the Ganges with the devout bathing, or by a funeral pyre one is gong to get releases? Not practical and that would end a lot of good photography!

Asher

 

[Alain Briot]

Sometimes it is easier to chance it on the basis that it is easier to be forgiven than to be permitted. Some situations simply do not provide for a model release, such as the ones Asher mentions above.

 

[Scott Ash]

Legal Pitfalls in Taking or Using Photographs

I'm not a lawyer, so I can't offer any legal advice here, but I have found the document below very informative regarding photography and it's legal pitfalls.

http://www.wipo.int/sme/en/documents/ip_photography.htm
Copyright Lien Verbauwhede, 2006. All rights reserved.

Quote: "Often, you may be free to take a photograph of a person, but the way the image is used may give the person shown in the photograph a right to take legal action."

It seems the definition of "commercial use" (for which one should ALWAYS have a release) is the important factor at hand in these debates. Often overlooked, a "commercial use" definition also includes the website (or portfolio) display of images which (represent or advertise) a professional photographers style or capabilities.

Case in point, I work as a photojournalist, so my newspaper can publish most everything I shoot on assignment without release. However, I cannot use any of the same images (without proper releases) in my professional web portfolio to "advertise" my photographic abilities. Doing so would be a "commercial use" of said images on my part and would leave me open to (possible) litigation. Just something to consider.

As stated in a previous post - when in doubt, get a release!

Scott

 

[Asher Kelman]

Case in point, I work as a photojournalist, so my newspaper can publish most everything I shoot on assignment without release. However, I cannot use any of the same images (without proper releases) in my professional web portfolio to "advertise" my photographic abilities. Doing so would be a "commercial use" of said images on my part and would leave me open to (possible) litigation. Just something to consider.

Scott,

I doubt anyone would succeed in such a case where you used a picture of a person without permission, except in France, perhaps, where the person in the street might have more rights than in the USA. There's enough case law to support using street pictures for one's portfolio to show one's "Art". However, you are right that one couldn't so freely show it as part of your service for portraits.

Asher

 

[Scott Ash]

Scott,

I doubt anyone would succeed in such a case ...

Asher

I agree with you, it would seem pretty unlikely that such a case would be filed (by the average, non-celebrity person). And I also admit, I do prefer to walk the safe side of the "legal" line whenever possible.

For me personally, it's not really about winning or losing a lawsuit, but more a point of how to best "avoid" one in the first place. If I have to hire a lawyer to defend myself... then I've already lost (to some extent).

Also on topic: The case mentioned here... http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia is an interesting argument for the "Art" defense. Unfortunately the courts did not rule on the "Art" issue when it was all said and done. I'd would be very interested if anyone knows of other cases that set a good precedent regarding the "Art" defense.

Regards,

Scott