Help needed!

[BritishBeef]

I have just received a request to use one of my images commercialy, see here: http://www.pbase.com/image/25480103

Here's the request:

'I'd like to license the use of your photograph for a marketing campaign we're doing in the Northeast of the US. It's a limited e-mail distribution (no more than several hundred to several thousand people). Could you contact me at ******@*****.com to discuss how we would do this, please?'

Now here's the problem. I don't have a model release form for the person in the shot as it was a candid. I presume I'm unable to profit in any way from this shot. Anyone know for sure?

Thanks in advance,

Regards,

Geoff.

[BytePhoto]

I knew it was a winner... Sorry, though, I can't help you out with your question. Congrats !!

[JCW3]

Models releases are a big thing that alot of publishers ask about, but only a few actually ever ask to see. Though model releases are very important there are ways around them.

Usually model releases mainly on apply in advertisments or similar work (seems what this is going to be used for).

The thing is you can actually sell you 1 time use pubishing rights without a model release and actually be full legal. But if the person in the photo ever decides to, she can come back and take legal action to get a percentage of what you make. Most of the time its 50% if legal action is taken, but it can be MUCH more than that.

Again model releases are a good thing to have and most professionals usually get them for the majority of the shots. If you can contact the woman that would be great, but I am sure that is a slim to none chance.

I would clearly state the issue up front with the company and let them know the case. That way maybe they will be willing to work something out with you and the model is a problem ever occurs.

John Shaw wrote a book a few years ago about becomeing a professional and running a Stock Photograph Business, I would recommend reading it if your wanting to do more of this work. THe book goes into alot of detail about writing contracts, setting up contract conditions, model releases and little on the law.

[BritishBeef]

Thanks for all your responses. Very much appreciated.

I've since been in touch with the company and they have declined to use the image due to the fact that I wanted to charge for it and the legal situation. Amazing if they thought they could have it for free!!! Oh well, at least a company was interested in one of my images. There's always next time...........

Regards,

Geoff.

[JCW3]

Thats a common thing when your not under a label and sometimes even when your are.

I really do not thing some people realize the amount of time, thought, work, and equipment need to obtain a photo like the
one you did. Seems they thing you just pull the camera out of your pocket and took that photo just for them. I sure know how you feel.

I did some work for a fishing guide service a while back, that was a very similar case. He saw me take the photos and I later sent him a link to a few smaller web versions, which he really like. He was really interested until I brought out the paper work. Seems he thought I was just going to give them to him, and the worst part was he wanted full rights to the images. I kind of laughed and blew him off, but he just could not understand it.

Well it may be better off for you. At least you caught it before you went to far in the deal and wasted alot of time.

OVer all its still a great image.

JCW3,

I can relate to this. A couple of weeks ago a racer emailed me wanting pictures from a recent event. I gave him a link to the website as well as a price list. His reply was short "I just wanted a couple shots for my website and I do not want to pay for them". My reply was professional, but similarly short " I can not afford to give photos away, especially for a website as people just download the photo and do not buy the prints from me, I have travel and equipment expenses equal to your racing expenses".
Well a few days later I discover this clown went and downloaded the thumbnails from my website and put them on his website! He recieved a bill in his email, $100 per photo, per month. He also got a seperate email explaing copyright laws. His response was pretty obscene to say the least, yet he still has the photos posted.
What he dosn't know (yet) is that #1: I have the logs when he downloaded them #2: My brother-in-law(yer) also handles copyright infringement, including international. #3: there are certified letters headed to him, his ISP and his sponsors about the copyright infringement and associated costs. #4: the jpgs he downloaded are still named what I named them and the exif info is still there as well..... surprise, so is the copyright!
What burns me is he could have spent $10 per shot for a web license and gotten a cleaner version of the photos and if the site crashed and they lost any pics I'd replace them at no charge, but since he was a jerk, and putting me through the expense of a lawyer, certified letters and so on it will cost him a lot more, possibly his sponsorship money as well.
If you let one get away with it though, they all think they can.
John

[LindaCC]

This is a really great informational learning scenario. You have handled the situation really well. I would love to follow the progress as it plays out.
Thanks for sharing it...
What luck having the Brother-In-Law(yer)
LCC

[ChronosIII]

Dear B.B.

I think you are smart to have handled the issue in the way you did, but keep this in mind sometimes, if you want to get your stuff seen to be purchased and don't have a rep, it pays to allow limited usage of ones images. I have a friend who is a working pro and he gave away work when he started, to companies which would give him a lot of exposure and now he turns down jobs every week and sells his art stuff at very high (by my standards) prices.

BTW the model release. If you don't have one, get one and hand them to any "candids" that you shoot, if you can't catch them, note it in your photo log which will go a long way if it ever comes down to a lawsuit. which unless she was a model she would have a difficult time winning. If you don't want to be seen in a public place or photographed don't leave your home (this is how the poparazzi make it)
In most cases the judge won't award a person in a candid any money but will sometimes depending on the image (intrusive or graphic) order you to stop the use of the image which is why most stock agencies require them. kinda hard to tell a national ad agency to stop the use of an image that they invest a lot of time and money into.

BTW 2 Great photo.

Dave

[flubby]

Isn't it dangerous to post an image of a person on the internet when you don't have his or her authorization!?!? Imgine if she goes online and suddenly see herself!

You shouldn't use images without their concent. Even if you are not going to use them commercially, it's better to have their authorization.

Cool photo, btw...

EDIT: Oh btw... you might even be able to use your picture. But if she finds out and doesn't like it, she might be able to sue you. That's too bad... Maybe try to find her?

EDIT2: I just read the abvove post. Go for it.

[JCW3]

I found this link a few weeks ago and thought of you all, but just got around to posting it. I know I am a little slow, but I though you all would find it very interesting...

This is actually writen by a lawyer/photographer, so it will fit this topic well.

http://www.krages.com/ThePhotographersRight.pdf

JCW3

[jerrymeola]

I am a lawyer, although I do not practice law anymore.

Several things should be added to this discussion. BritishBeef you are asking for problems when you try to use a photo for commercial purposes without a release.

The article referenced by JCW3 was good in that it pointed out you can take the picture, but do not extend that right to think it gives you unlimited rights to the picture. You have a right to your photographic work but a person has a right of privacy and the commercial value of their image.

As a general rule, limited use of a photo without a release will not cause a problem. Commercial use usually will. Do not confuse 'news worthy' photo use with commercial use. Papparrazi photograph famous people all the time (famous have less rights of privacy than the average person because fame is their business). These are used in newspapers and magazines as 'news', which is often a strech. A number of years ago a photo in this class was used in a commercial ad without naming the actress but easily recognised. The damages went to the hundreds of thousands. When you go to commercial use the standards change.

One last thing to JSPhoto. It is good you have a
brother-in-law(yer) because I want to point out to readers that while copyright laws exist inforcing them is not usually realistic. I had a number of photos I gave with a signed release to a fair size publisher and humdreds of thousands of images were produced in book and magazines. He then went on to use more photos that were not in the release and then violated the release by not accrediting the original photos.

When I considered getting some money for it, lawyers I knew basically said the return would be minimal. The damages realisticly were worth about $10,000 (1980's money) and while this seems a lot to readers of this forum, it disappears fast. No lawyer I knew would consider the case on a contingent fee basis (the damages were likely to be too small). I knew the publisher would drag the case for years and the legal fees would quickly exceed the $10,000 possible damages. And I would hav to put the money up front. Keep in mind the statutary damages are up to $1 per image. 100,000 books three photos $300,000 but the realistic settlement would never reach that amount.

I could sue for the satisfaction of winning and if I had a photography business to protect I might have. But if as I wanted was to sue for money alone the time and effort did not justify the results.

JSPhoto you have a better claim for damages because because the emails clearly show he knowingly 'stole' the pictures, then just the copyright claim. Juries can get very mad. I would file suit against any sponsers recognisable in the photos as well as the racer. They have money and realise that they will have to send thousands defending a lawsuitover pictures for which they get no value. It all comes down to money, and unfortunately it is the lawyers that are getting it. Legal fees are the biggest reason for settlements unfortunately.

[IcarusFree]

Very interesting reply Jerry. Thanks for taking the time to clarify that for us. Good post!

Jerry,
Well the incident mentioned above about the person who stole a photo for his website has already been settled, actually with the help of his ISP who, as soon as they learned he took and used copyrighted material on his website, shut him down within minutes. No joke, 35 minutes after I sent the email to them, they shut it down. It seems they also terminated his account at the same time. In a reply to my email the ISP said: We do not allow the use of copyrighted material unless it is that which the user holds the copyright to, or the item is in public domain. In this case we found that you do hold the copyright to the photo so we have eliminated the website and user account.
I heard over the weekend that this guy was bad mouthing me, problem was, it was to photographers who knew what he had done. Not one of them sold him any pictures, or even bothered to take any of him. And he can't understand why.
He did call me Monday night, it seems he was making a new website and couldn't find the photo he stole and wanted another copy. Simply put, I told him he couldn't afford it, and then gave him an earfull, ending with "contact ----- he's my lawyer and this is his number ---- , you want anything in the future, talk to him first and pay him, then I will deal with you".
Another person found out about this mess, called me and kind of stuttering said "so what do I owe you for the pictures on my website?". We worked out a deal and he's coming by today or tomorrow to pay, or else.

I spend an average of three hours a week just checking websites that have my photos and those that shouldn't. I check the ones that should to make sure the photo is still up and if there is a problem I send a new copy to the webmaster. Those that shouldn't have them get an invoice emailed to them at twice the normal rate, and intrest that starts immediately. Honesty is the best policy.....

I have found in most cases if you treat them firmly, no if's and's or but's things work out in the end, but for that one knucklehead they have to learn the hard way. This person above learned one thing, don't mess with the photographers, they stick together.

[jerrymeola]

JSphoto

you were smart to go to the ISP provider. It was the same as my suggestion to go against the sponsers. The ISP provider could lose thousands in legal fees for something that had nothing for him.

An ISP provider is like a publisher and is just as guilty for copyright infringments as the racer. By takiing prompt action as soon as it was pointed out to him of the copyright infringment he avoided any damages against him.