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Thread: Image Usage Question

  1. #1
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    Image Usage Question

    Hi folks...

    Even for an OT Babbling section, this is probably pretty far off base, but it is also the best place that I know of to get some advice, answers, whatever.

    Here's the situation: We recently hosted a birthday party at the apartments that we manage, for a tenant's daughter. invitations were sent, friends and their kids showed up, and my wife took some pictures.

    Now, the sister of the parent whose child was having the part has two children, a little girl of about 4 and a boy of about 7. Because the birthday parent (we'll call her Alice) told us that her sister (we'll call her Beth) did not have any display pictures to speak of of her child (we'll call her Cathy), my wife took some shots, got a great profile picture melded it into a darkened image with a boquet of daisies, and created a very wonderful shot of Cathy. Alice loved it so much that she decided to pay for printing it out and framing it, and then give it to Beth as a present.

    In the mean time, my wife submitted the image to a fan art review site, where she often posts her work for the purpose of peer reviewing and tips to help improve what is fast becoming her craft. To our shock, Beth sent us an email demanding the removal of the picture and the cessation of the exploitation of her child for money, or she would persue legal action.

    Some facts: while this review site *does* give the option of selling one's work, my wife has never done this (for a variety of reasons), and definitely was not offering this particular piece. Now, we're talking about a family that we are close to, and one that we have helped on numerous occasions. So you can imagine how hurt and angered (the latter in my case, at any rate) that we are.

    My questions are thus: Since the party was by invitation via Alice, but it was hosted in apartments that we manage. There was absolutely no objection of any images being taken by anyone. Does Beth have a case at all, should she decided to have pursued it? Is the image of her daughter copyrighted by my wife? Could my wife conceivably *make* money on that image, and not owe Beth anything (something, I will be adamant to point out, neither my wife or I intend to, or ever would have intended to do)?

    I will note that since we have received that email, not only has my wife removed that image from the site, but she has deleted it and *all* other images of Beth's family from our computer, and refuses to take any pictures of either Beth's *or* Alice's family (Alice's husband was also calling the image exploitation).

    Since my wife is entering the very earliest stages of a photography career, we need to figure out issues like this, especially when she already has several people who would like her to do work with their children and other relatives, similar to what she did with Cathy.

    Thanks for any input you might have.

    ...John...

  2. #2
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    My impression from a brief perusal of some Web discussion of the issue is that nonmonetary artistic usage of someone's photograph is allowed, but that your wife would need a model release from the subject (or her guardian) in order to sell the image.

    There's a much more detailed discussion of the issue here:

    http://www.danheller.com/model-release.html

    It's actually pretty complicated, with lots of fine distinctions between what is and isn't allowed. My impression is that, if your wife is being asked to take such photographs, she should get a model release signed for them, with the release specifying the sort of use is intended, even if it's only for posting on the Web or in a gallery.
    Everything I need to know I learned through Googling.

  3. #3
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    Quote Originally Posted by ToSeek
    My impression from a brief perusal of some Web discussion of the issue is that nonmonetary artistic usage of someone's photograph is allowed, but that your wife would need a model release from the subject (or her guardian) in order to sell the image.
    Yup. I've managed a web project and had to deal with this very issue. If you are planning on publishing an image that does not have news (or speech) value that contains a person as its primary subject, then you need a model release. If ToSeek knocked over a liquor store, I could use his photo in a news context without a release. If he attended a sporting event, I could use a crowd photo that contained his image that did not rise to the level of him being the primary subject without his release. I could not snap a photo of him - even in a public setting - and publish that image outside a free speech context without a release.

  4. #4
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    So in short, as long as the little girl was not the primary subject of a photo, it would be open to fair use. But any other primary usage would require a releasal form.

    Now... are any such forms that I can find or make (such as the example provided in the link that ToSeek mentioned) legally binding, or do they require some osrt of official stamp or something to certify it as a legal document?

    ...John...

  5. #5
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    Quote Originally Posted by John M. Dollan
    Now... are any such forms that I can find or make (such as the example provided in the link that ToSeek mentioned) legally binding, or do they require some osrt of official stamp or something to certify it as a legal document?

    ...John...
    A notary seal confirms the identity of the person signing it. It is not required, though the signer could challenge the authenticity of the signiture. You probably would not need this assurance in anything but large commercial ventures.

  6. #6
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    Performing a meager internet search I found the following release form:

    http://www.nyip.com/sub_idx_pgs/refe...l_release.html

  7. #7
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    Quote Originally Posted by Cylinder
    A notary seal confirms the identity of the person signing it. It is not required, though the signer could challenge the authenticity of the signiture. You probably would not need this assurance in anything but large commercial ventures.
    Yeah, commercial considerations are still quite a ways away for us. Still, this is good to know, and indeed worth looking up a resource for possible notarizing.

    ...John...

  8. #8
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    Quote Originally Posted by Gruesome
    Performing a meager internet search I found the following release form:

    http://www.nyip.com/sub_idx_pgs/refe...l_release.html
    This looks like a good one for beginning usage. but... what does "In exchange for consideration received..." mean? Is that just saying, basically, "Thanks for asking! Yes, you can use my likeness" ?

    ...John...

  9. #9
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    As I understand it (from a photography friend about 20 years ago) there are no official forms, so you could probably create your own.
    At night the stars put on a show for free (Carole King)

    All moderation in purple - The rules

  10. #10
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    Quote Originally Posted by John M. Dollan
    This looks like a good one for beginning usage. but... what does "In exchange for consideration received..." mean?
    For a contract to be valid there must be a trade of one thing of value for another. So 'consideration' in this instance would be something that you would provide to the model in exchange for permission to use their likeness. The consideration must be of value, but not necessarily significant. A dollar would suffice.

    Without consideration, the contract would be deemed a 'naked contract' and would be unenforceable.

  11. #11
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    Quote Originally Posted by Gruesome
    For a contract to be valid there must be a trade of one thing of value for another. So 'consideration' in this instance would be something that you would provide to the model in exchange for permission to use their likeness. The consideration must be of value, but not necessarily significant. A dollar would suffice.
    Or even just a copy or copies of the photograph.
    Everything I need to know I learned through Googling.

  12. #12
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    Interesting situation, legalities aside.

    It seems to me Beth was a little heavy-handed in suggesting there might be legal action. It's no surprise that you're hurt and angered. I'm sure a simple polite request from her would have resulted in the same results.

    In any event, good luck to your wife in her new career!

  13. #13
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    Quote Originally Posted by Big Brother Dunk
    Interesting situation, legalities aside.

    It seems to me Beth was a little heavy-handed in suggesting there might be legal action. It's no surprise that you're hurt and angered. I'm sure a simple polite request from her would have resulted in the same results.
    Oh, absolutely. As the day has worn on, I've learned about problems that Beth's family has had in regards to their children and each partner's former "significant" others. Nevertheless, that is no reason to go and threaten legal action and label us exploiters of children, especially when we've been friends with them, and *very* good friends with her sister. Unfortunately, her sister's husband (also one of our tenants) is just as paranoid, and may have instigated the entire thing. If so, then it is doubly dissapointing to me. Needless to say, not only will no further images be taken of them or thier children, my wife has decided that there will be no more "freebies".

    Offer someone a nice gift, and you get slapped in the throat.

    In any event, good luck to your wife in her new career!
    Thanks! On a much more optomistic note, this has certainly been a learning experience, and has opened up all sorts of issues that neither of us had any clue about. Sure, we figured that there would be matters of permission, even possible payment, to use certain subjects in works that would be meant for resale (a state of her career that si, frankly, quite some time away). But attempting to use a peer-review site? It certainly makes me much more wary of using friend's images on my website, even fairly modified, without having a file full of signatures and release forms.....

    I'll try to post a link to one of her images, so folks can see what kind of portrait art she's playing with right now.

    ...John...

  14. #14
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    Here are some image shack link for some of my wife's images. Please note that the children contained therein are *our* children, and remain far from being exploited....

    http://img485.imageshack.us/img485/7...fwinter2os.jpg -- One of her first such endeavors, withour son Liam. Even so, I liked it so much I had the image plastered onto a coffee cup.

    http://img485.imageshack.us/img485/349/stargazer0fg.jpg -- Not counting the now deleted images of the neighbor kids, this is the latest such image, and thus far the best in my opinion. It features our daughter, Moira (whose hair is *not* that long... yet; she's just over a year old).

    http://img530.imageshack.us/img530/5...ntheair1rd.jpg -- My wife loves sharks, and our son Liam loves to be a goof. The two images seemed destined to go together! The shark is actually created from scratch in Photoshop, and inspired by the Discovery Channel's "Air Jaws" show.

    http://img485.imageshack.us/img485/8...rthesea9tz.jpg -- A compositional piece, again featuring Moira. She was actually playing with one of the boys' toys in the living room when my wife snapped this shot. And being the lover of the sea that she is, came up with the composition fairly easily.

    Hope you enjoy!

    ...John...

  15. #15
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    I like the shark one.
    Everything I need to know I learned through Googling.

  16. #16
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    Wow! Those are great pictures! I'd suggest your wife won't have too much of a problem as a photographer. Well done.

  17. #17
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    Thanks, guys! I passed on the compliments. She of course does traditional landscape photography, unaltered, as well.

    At any rate, thanks for the responses, folks. It has been of extreme use and great help to us both!

    ...John...

  18. #18
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    Apart from the pictures being great, which they are, remember that for some people, having a picture of them or their loved ones put on a public website, especially without being asked, feels like a violation.
    It doesn't matter what the site is for, if it's on the net it's available to everyone, which is something people occationally forget.
    I must say that their reaction, if driven by a sense of betrayal from their side because the picture was published without their knowledge, is very understandable for me.
    This is unfortunately one of the cases where good intent doesn't help of the action is seen as bad.
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  19. #19
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    Quote Originally Posted by HenrikOlsen
    I must say that their reaction, if driven by a sense of betrayal from their side because the picture was published without their knowledge, is very understandable for me.
    I have to disagree, simply because they know what my wife does, and they were aware that she uses that site for peer review. Where they got the idea that we were getting money off of it is beyond me. But more than that, we were good enough friends, and even much more so with her sister and family, that they should have well known that simply asking to remove the image would have been sufficient. But instead, they accuse us of child exploitation and threaten a lawsuit (which likely would have gone nowhere for various reasons). As far as I know, this reaction came nearly 12 *hours* after they learned of the image being placed on the review site.

    Frankly, the whole subject remains baffling to me, save for the fact that it does serve as proof that there will always be reactionary people out there, regardless of circumstances or alternate, more civil options.

    This is unfortunately one of the cases where good intent doesn't help of the action is seen as bad.
    And also it seems to have been a case of accusation and threat overriding a friendly request.

    ...John...

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