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The San Diego Photography Collective Message Board › Waiver/Copyright question

Waiver/Copyright question

A former member
Post #: 50
Remember, you are allowed to use photos you have taken for artistic reasons. this is why street photographers do not have to run around with model releases and get everyone in their field of view to sign on. and i'm reasonably confident that you can post and use these images on your website and social media sites as long as the pictures do not show someone in an inaccurate or unfavorable light or where taken in a non-public space or a place where someone has a reasonable expectation of privacy. Of course, if you have taken that killer shot and you want to print them on t-shirts to sell at Koby's you sure has heck better get a release! And to Britt's point, share some of the love with the model! biggrin
user 4110268
San Diego, CA
Post #: 13
Hi Britt! With alot of respect, I have to respectfully disagree with the legal aspects of your post only! A contract isn't "useful" when planning a joint venture--it's mandatory. You do need a contract regardless of whether or not you are going to court or whether there is a dispute. Without a contract or model release any commercial or noncommerical use would be illegal, period. If there is a dispute the damages would be rather costly. It's a huge misconception among photographers, for instance, that they can use noncommerically the image of anyone they shoot in a public place -not so,hence the reason that any legitimate photography contest, gallery, stock photo agency or art director insists you sign a contract stating you have a model release and will show it to them upon request. There are very few, if any, (portfolio perhaps) noncommercial purposes for images in any event. Posting on your website or using at a private exhibit, for instance, have both been held by the courts to constitute promotion--hence, advertising, hence a commerical purpose. I don't know what lawyers have been giving you copyright advice but I can assure you they are not lawyers who specialize in copyright law, such advice as posted is simple incorrect.
A former member
Post #: 154
All too often, I see questions like this on various forums around the web, and the answers are widely varied. They usually include the first-sentence caveat of "I'm not a lawyer".

Well, here we have someone who teaches copyright law to people who want to be lawyers. In identifying herself as such, Gigi establishes herself as a subject matter expert and a valuable resource. I just thought I'd say "thanks" for that. It's nice to know that there's someone here who truly knows the nuts and bolts of the issue...
A former member
Post #: 8
Thanks everyone, better safe than sorry, a release it is!
Stan L.
user 12222888
La Mesa, CA
Post #: 10
"As for registration, you do not need to register any of your images with the copyright office. The moment you click the shutter the image is copyrighted. You don't need registration to sue someone for copyright infringement--registration becomes important really only in criminal copyright infringement cases. "

If someone uses your image without your permission, that's criminal, as in stealing. Every intellectual property attorney I've worked with has stated how important registration is. The image is copyrighted when created, and that along with $3 will get you a cup of coffee. It will not make any difference if you need an attorney to sue for damages. Without registration, you can't get damages or attorney fees, which means it would cost more to sue than you'd recover, which is why so many people steal our work. If the model sells the image to cosmo for a cover, you can't collect a penny without the image being registered. Even for amateur photogs, it's a really good habit to get into.
user 4110268
San Diego, CA
Post #: 14
This is going to be my last comment on the subject because as the saying goes "No good deed goes unpunished." I've been a lawyer for more than 30 years and I have been teaching Copyright Law TO ATTORNEYS for CLE credit since 1994. Think that makes me qualified to render an opinion --more so than, say, people, including lawyers, posting poppycock on the web. First of all, street photographers do not have the right to use the images of persons they shoot on the street for artistic purposes or otherwise without a model release, there is even a very famous New York case involving an internationally known street photographer on this very issue. Secondly, failure to register does not prevent anyone from obtaining damages for copyright infringement. Failure to register may, in theory, limit one's ability to have a court award DISCRETIONARY attorney fees (good luck getting a court to award attorney fees without actual damages since the court has to base any DISRETIONARY award of attorneys fees on actual damages sustained and if you have actual damages registration is absolutely meaningless), really not a problem if one has an attorney who has actually read the court cases interpreting the statute as opposed to say an attorney who simply reads the statute and otherwise knows squat about the issue. Finally, not every copyright infringement is a violation of the criminal copyright statute, i.e. is not theft, (if such were the case there wouldn't be any need for a specific criminal copyright statute because the case would be prosecuted under your garden variety larceny statute, n'est pas?). Violation of the criminal copyright statute is extremely difficult to prove, for instance, it requires willfullness (and there are more than 500 published cases interpreting the meaning of "willfullness" as contemplated by the statute with a split among the various jurisdictions) and the work infringed also has to meet the monetary value set forth in the statute. Sure, if you think your work has been infringed and the infringment meets the very stringent statutory requirements for criminal infringement, and think "willfullness" and "value" and the other requirements for criminal infringment, as interpreted by the courts in your particular jurisdiction, can be proved beyond a reasonable doubt, you can file a complaint with the DOJ, but good luck in getting them to prosecute--they are way too busy going after counterfeitors. Sheesh.
Stan L.
user 12222888
La Mesa, CA
Post #: 11
If you have a moment, you might want to take a peek at Ed Greenberg's blog, he's an IP attorney in New York. He's filed suit on a few occasions relating to what we're talking about here.

San Diego, CA
Post #: 469
Thank you Gigi!
She is quite right, that believing you can use an image of just anyone ''you are allowed to use photos you have taken for artistic reasons'' is wrong ... morally as well as legally. I myself would quite likely be furious if I hadn't given permission! However there is most often little that your victim will do about use for non commercial use - unless you are portraying them in any kind of derogatory manner and they do get a lawyer who can make a case for it. (or they are rich enough to bring lawyers to it even when their case is weak).


I was speaking about when you plan a shoot with 'a model' who wants the images used for self promotion... and you have full written and verbal permission and approval of the specific images once taken.
When you have full permission I was pointing out you do not (in real life) need a release or contract .... as there is no dispute.

While I recommend one that is very clear indeed on terms etc. I will only NEED it when there IS a dispute.
And if you remove the disputed image the problem will usually be over. But not always.
Lawyers need to protect their clients in every eventuality, and if you forgo a release you are then relying on good will. Something lawyers see going south on a daily basis.

So treat your models well!
Include them in your commercial success wherever possible. They will be glad you used their image, instead of exploiting them.

But street photographers beware. Often people, especially women, feel violated when they see their unposed image on display, without their knowledge or agreement ... and occasionally someone who cares not for your rights As An Artist will smash ya camera on the spot!
Mike P
San Diego, CA
Post #: 19
Gigi, I fully appreciate your attorney's perspective on the law regarding the public photo issue, but I have a practical question for you.

So, given that it's illegal to photograph a stranger in a public place without a release, what happens if you do so, and you exhibit the work in a gallery, on your website, in your portfolio, etc and someone see this and believes that they are the person in such photo or photos?

First, how do you prove that it's you? You'd have to establish time and place and prove that you were there. That's hard enough, but then you'd have to prove that the person shown is you. There are so many factors that go into a photo and each one can radically change the way a person looks in a photograph. Unless someone has a distinctive look, or marking, could it not be easily argued in court that this was someone else?

Additionally, could not a photographer use Photoshop to alter the appearance of people so that they would not even recognize themselves or remove distinctive marks such as scars? And if not recognizable, how does a litigant prove damages? (If no one can recognize them, where is the damage?).

Are you familiar with any cases where a street photographer was fined by a court for such an offense?

So, would you agree that the legal danger for a street photographer (given the variables above) could be mitigated by judicious use of Photoshop?

I'm not advocating breaking the law, I'm just wondering how in the world does a court prove that someone is who they say they are from a photo and then come up with a real assessment of damages?

I'm not talking here about something used in an advertisement, but as "art" in a gallery or web site.

Just wondering.

Ken C.
El Cajon, CA
Post #: 79
As was mentioned early on in the discussion, a presentation to the SD Meetup group from the Non-Lawyer perspective, will be given in the upcoming months. Check your email for dates when agreed upon. Sample release forms, short and long, will be given as handouts.

Consider one quick aspect of why to get a model release if possible, it acts as a bit of an intimidation to the person photographed that you are attempting to guard your "copyright" position!
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