Selling Something You Don't Own
If I consent to being photographed while at an event, or for a portrait for a magazine, the photographer can do certain things with that photo, and cannot do other things. What they can do, is license that image, as stock, for editorial purposes only, provided that that editorial use is not libelous. What they cannot do, is license that image containing my likeness for commercial/corporate uses, without my expressed written consent to do so, usually codified in the form of a model release.
Yet, so many photographer I know sell something they do not own, and they could well get sued to within an inch of their lives if they're not careful.
(Continued after the Jump)
If you convey to a client "all rights", inherent in that rights package, under the definition of "all" is, in fact, the right to use that image for advertising and marketing, for corporate and/or commercial clients.Think I'm kidding? Think again. You do not own the right to exploit someone's likeness for commercial gain without their permission - period. In fact, the legality of even placing images of a subject online - released or not - for the purposes of stock licensing of that image - even for editorial purposes - may be deemed commercial exploitation, and subject to restriction. Carolyn Wright over at Photo Attorney writes about the estate of James Brown, who "...filed suit against Corbis in Illinois claiming that Corbis violated Brown's right of publicity for "commercial use of his image on the Internet" by selling/licensing photos of him." (Legislature May Resolve Issue in James Brown v. Corbis Action - 3/31/08).
When you transfer "all rights" to a client, the least you must do is say "...all rights are conveyed for which no model releases are required, and photographer hereby stipulates that he has not secured model releases from any subjects." While I certainly suggest that clients who are asking for "all rights" don't need "informational kiosk displays in Minsk", that's what you're giving them, and you should work hard to define a clients rights packages by geography "United States Only", by language "English Only", by duration "for a period of 10 years", and by liability, as noted above.
Don't sell what you don't own, and don't kid yourself that you are not going to get sued, that's like playing with fire - you will get burned. IF you still don't believe me, call your insurance agent, and say:
"if I license to my client 'all rights' and then my client uses the photos I gave them for advertising, even though I didn't get a model release, since I licensed to my client 'all rights', do I have any liability?"When they say 'yes', then you'll know. If they say 'no', then ask them to put that in writing, and ask them if they will, in the event you are sued, be willing to defend you, pro bono, if that advice is found to be faulty. They will then do some more research, and likely come back with the 'yes, you're probably either completely, mostly, or somewhat liable...", and then you'll have your honest answer.
Fair warning folks.
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disclaimer: I am not an attorney. Talk to one about all your legal advice!
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21 comments:
Funny you should bring this up. I'm just putting together the basics of my own photo business, and I got my website up and running just tonight. The images I use on my website are, naturally, examples of my work. Some of them the paper I work at owns the rights to, because I was being paid by them when I took it. I cannot sell those images, the paper owns the rights to those. My questions are: May I display them as examples of my work, as in a portfolio? And by doing so, do I need a release?
James
It should probably be pointed out that these types of "image rights" or "publicity rights" are (1) property rights and not copyright-related; and (2) are usually only ever successfully enforced by celebrities or those with a recognisable image or identity.
I say this more from a non-USA perspective as I know that many US states have developed publicity right statutes but, as ever, DYOR.
Raf is dead on on the first comment (these rights are personal property rights, not copyrights) and fairly wide of the mark with the second, at least in the US.
For instance, several people have successfully sued for statutory damages (yes, *statutory* damages - no proof of harm or wrongful profit required) under the Illinois Right of Publicity Act, which defines "commercial use" quite broadly and provides for statutory and punitive damages for misappropriation of identity. I know of several other states which have similar statutes. I realize that raf qualified their remark, but in my opinion, it is still a little misleading as written.
I was very amused during the recent "crisis" involving photography at IL high-school championship events that absolutely nobody seemed to realize that EVERYONE INVOLVED was violating this law, big-time, and that the website of the "official" photography company had what I consider to be hundreds of thousands of dollars in potential legal liability right there in living color. I await their expensive education with a certain unbecoming glee.
M
@M: Thanks for the information re. recent successful cases for statutory damages. It seems from what you say that the position in the US is more stringent than in Europe. regards, Raf
An interesting link on this very subject!
http://www.breitbart.com/article.php?id=D8VUL1LO2&show_article=1
Publicity/right-to-privacy rights apply both to celebrities as well as your average Joe. Joe has the right to preclude his likeness from being used for commercial purposes. Selling/transfering/licensing "all rights" indicates you are granting rights you don't have - unless you have a model release. I didn't mention Copyright, because it's only tangentially related here. Once you sell your copyright, you also convey the responsibility to ensure you have releases for uses which require releases. However, if you retain copyright, and license a use for which no release exists, but is necessary, then you are selling something you don't own, celebrity or not.
Conveying "all rights" is NOT the same as a transfer of copyright.
This is a deep and complex subject that cannot be summarized as a short blog piece as shown here. And despite the well-intentioned nature of the idea and some basic truisms, there are just too many inaccuracies that ultimately lead people to more mis-understandings.
For example, the Corbis vs. James Brown case is NOT about whether photos can be sold/licensed on a website, as many people erroneously believe. The judge's comments specifically state that the sale of images is NOT considered a form of commercial use for which consent (a release) is required, but rather, it is the question of whether Corbis can KNOWINGLY license it to a publisher when they are informed ahead of time that the use in question would require a release. It has already been established that you/anyone can license photos to anyone all you like without a release--it's whether the person licensing it can use it without a release. Neither the photographer NOR the licensor are responsible if the photo is published without a release--ONLY the publisher (licensee) is. In fact, there is no court case at all on record showing a photographer ever being sued for licensing a photo (even for commercial use) without a release. it is always the publisher that is responsible. The Corbis case is only important because it may have potentially opened up a tiny window in that the licensor could potentially be responsible too IF and ONLY IF they are made aware ahead of time that the use would require a release. But the reader should note that Corbis has WON the case so far. The James Brown estate is now appealing the decision, but it has not yet been ruled upon. Moreover, the Illinois state legislature has just passed a new law reaffirming that licensors cannot be held liable for how others (licensees) publish images.
I've just completed a 288-page book on the subject (the only one of its kind) where I've fully researched the subject and interviewed many lawyers and even judges (two of whom are state supreme court justices). Info on the book is here:
http://www.danheller.com/model-release-book
Quick-readers might want to see the primer on this subject:
http://www.danheller.com/model-release-primer
dan
Dan is spot on here! And you should definitely get his book!
-- John
No offense to Mr. Heller, whose book I have not read, but if the information it contains is the same as that located on his website, those who wish to have some security with regard to this topic would do better to consult an attorney licensed in their jurisdiction and familiar with the relevant law than to rely on it.
M
This is not the forum for having a tit-for-tat dispute, but it's certainly safe to say that if you're going to throw around accusations like that, you should either 1) read the book, and/or 2) cite specifically what you're referring to. It's rather irresponsible of you to make a blanket statement like that without substantiation.
And, for what it's worth, my research into the subject involved over five years of interviews and direct experience with lawyers, judges, and even two state supreme court justices. It's impossible to get a realistic legal opinion from ONE lawyer (most of whom are ill-informed on the subject). You really have to comb the landscape, and understand subtler nuances to interpret the gestalt of the topic to communicate clearly to a largely lay audience (again, a skill that most lawyers don't really have).
I'm happy to entertain intelligent discourse on the subject if you wish to email me (link on my site), but I won't delve into juvenile internet banter on someone else's blog.
dh
Oh, c'mon. Just a little banter?
Website In Question:
"In the United States, a model release is a contractual agreement that is not enforceable unless there was some form of compensation."
(http://www.danheller.com/model-release.html, Section 5.4)
Just One Example: "Sections 50 and 51 of the Civil Rights Law do not require an enforceable contract for the commercial use of another's photograph or likeness; written consent is all that the statute requires."
Cory v. Nintendo of Am., Inc., 185 A.D.2d 70.
M
Classic example of why you need to talk to MANY lawyers to get to the truth of things.
While you're citing of the law is true, the problem is that many judgments have still found some contracts to be unenforeable based on Civ. Code § 1550, which states that the "contract" (not necessarily the consent, which is what you cited) is not enforceable without "valuable consideration", which is "compensation."
Many cases involving releases have been ruled in favor of the plaintiff because there hasn't been compensation based on this nuance in law.
Again, I urge not to entangle on someone else's blog--it's inappropriate and off topic.
dan
With all respect to Mr. Harrington, who is a very fine photographer and whose writing I enjoy muchly, if he's going to plug legal books on his blog, I submit that discussion of why relying on those books might not be such a good idea is entirely appropriate and on-topic.
You are completely correct in that if a release is part of a contract then the release can be attacked under various contract law principles, and that such attacks are often successful.
However, you have missed the forest for the trees. My point was that since releases do not have to be contracts in many jurisdictions, it's not always a good idea to make them into contracts for the very reason that they are then susceptible to attack under various theories of contract, whereas if they were just releases, they would be unassailable on those grounds.
M
As to the appropriateness of all this being on Harrington's blog, my main objection was that you trashed my book/article without justification.
In your defense, you then attempted a justification, but it turned out to be spurious, which you indirectly acknowledge by changing your position now to being one where you're not really objecting to what I said in my article, but pointing out a different "business strategy."
Fair enough, but it still leaves your inappropriate "trashing" of my book and credibility on someone's blog an objectionable act.
I think this issue has run its course.
Actually, I didn't say anything about your book at all. I said that if your book had the same information as your website, people would be better off consulting an attorney rather than relying on it.
If you consider that "trashing your book," I think you have a very uncomfortable future ahead of you as an author. "This book contains questionable advice, inaccurate statements of law, and should not be used by serious professional photographers," that would be trashing your book. I can't say that, because I haven't read it. For all I know the book is a masterpiece of scholarship and business advice. I'm just pointing out the difference between what I actually did and what you said I did.
It's very interesting that every time you respond, you try to make it sound like any response on my part would be inappropriate. Are you really that worried about anonymous comments from some schlub on a blog? If so, perhaps you shouldn't go on blogs and post unsolicited ads for your book.
M
You're "anonymous" -- you don't even have the courage to come out from the shadows. Yet you assert with no credible justification that the book contains questionable advice and inaccurate statements of law", AND you claim that you're not trashing the book. This is not because I'm thinned skin by any means. This is my 6th book (4th on the context of photography) I am certainly fine with critiques. You have failed to understand that what I'm objecting to is the inappropriate manner in which you choose to cowardly and anonymously throw these baseless comments around on someone else's blog.
As for the book's "accuracy", it is impossible to be entirely, 100% technically accurate when discussing the law. this is further complicated when it comes to state-by-state considerations within the US or other countries. As the book points out, I used California law as a basis for discussion because it tends to be a well-accepted basis for academic discussion, and also a leader in establishing future legislative trends in the areas discussed here. This can present a problem for those who seek strict legal guidance, who may therefore critique the book's nuanced technicalities. As the author, I have to choose between two masters: one being the teaching of a higher-level concept so that people understand the general principles, and the other being the stickler for accuracy in all cases. Since I needed to use examples to illustrate higher-level concepts, I was bound to be in a situation where I'd have to say things that may not necessarily be true in all states, but I didn't want to "pollute" the text with tons of exceptions and footnotes for those states whose laws may be different. I had to reconcile that there would be, alas, inaccuracies in the final product. But the reader suffers no misguidance because of this, since the principles discused are just that: principles.
I am through with this conversation. I will not reply to any more follow-ups.
And this is why you shouldn't take legal advice from non-lawyers. Not only are they usually wrong or at least vastly lacking in understanding of the law, but they have no professional liability for being wrong, and they usually won't even admit that you'd be better off getting legal advice from a lawyer licensed in your jurisdiction and familiar with the relevant law.
If I were to suggest that if Mr. Heller is going to go around giving legal advice, he should be held to the professional standard of a lawyer, he'd undoubtedly have a fit. If I were to ask him if his legal malpractice insurance were paid up, I suspect I wouldn't get a positive answer there either. And let's not even bother wondering if he'll indemnify anyone who relies on his advice and gets sued as a result.
I don't have a problem with people saying things like, "You should get a release if you can," or "You shouldn't sell rights if you're not sure you have them," which was where Mr. Harrington was going with his blog post. I commend him for raising the issue. But that is about as far as a non-attorney is justified in making general statements, in my opinion.
You don't see me telling Mr. Heller, or Mr. Harrington, what f-stop to use. Photographically speaking, they both far exceed my abilities. Generally I'm here to learn, and I find this blog a valuable resource. But if somebody pops up on the heels of a general warning about rights clearance and claims to have The Answer (and that they will share it with you for the low, low price of $29.99,) when reasonable investigation raises a valid question about the reliability of that person's opinions on the subject, I'm going to say something. If they don't like it, tough toenails.
Apologies to Mr. Harrington if he finds this objectionable, but if Mr. Heller can SPAM somebody with a plug for his book, I think it's perfectly reasonable that he should expect responses he may not like.
M
(Who is the same "M" who's been posting all along, and who did identify himself in his initial response.)
The arguments being made by Dan Heller about a release being unenforceable without consideration are probably the most dangerous and uninformed that I have ever seen. His reliance on a civil code section on enforceability of a contract is about as naive as it gets.
READ MY LIPS: PHOTOGRAPHERS DON'T ENFORCE RELEASES, THEY RELY UPON THEM. In California, CC 3344 and common law rules of privacy require a subject to give consent before their likeness is used. Nowhere in the statute is it even required to be in writing.
If a photographer uses an image and relies on the release signed by the model, it is the model that will have to litigate, not the photographer. The model will have to prove that she didn't give consent. Dan doesn't get it. The photographer doesn't have to enforce anything.
The model may be able to withdraw her consent for future commercial publication, but she can't go back and revoke her consent retroactively. Dan, I hear you again and again and again tell me about the judges and the lawyers you talked to, but I don't believe you!
Beyond that, California isn't the center of the world. There are states where no release is required at all. In New York, the courts have found that once a release has been signed, there can never again be an invasion of privacy by the photographer.
It should be a crime for a photographer to give such bad advice.
It happens Dan, that I think you are a good photographer and a good source of information. You deserve your success. When it comes to giving legal advice, I am sorry, you are just too often wrong. You really need to rethink what you are saying because it just makes you look bad.
-An Amused Photographer
nice article.
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good discussion.
Selling something you don't own has its disadvantages but has its advantages too - Web Designer Web Hosting
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