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DPChallenge Forums >> Tips, Tricks, and Q&A >> Is she allowed to do this?!?!
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 01/14/2005 12:59:28 PM · #1
This is my first post, so if there is already an answer out there- point me to it... and thanks in advance for your insight!

My daughter had her 1 year pics taken at a professional studio. I have yet to order any prints and sign the usual paperwork- when I opened a local directory containing ads- I found a 1/2 page spread with 10 pictures of my daughter advertising her business. I know she owns the rights to the pics- but I didn't sign a release and she didn't ask my permission... is this ok, normal, out of line? How should I follow up?
Thanks,
Kelly
 01/14/2005 01:03:22 PM · #2
Without a signed model release I think it's illegal to use recognisable photos of people for commercial purposes.
 01/14/2005 01:05:10 PM · #3
I would go after some dollars here...I'm not one for going after other people for money by any means, but this is a business and she knows better.
 01/14/2005 01:07:33 PM · #4
10 pictures of the same client? Sounds like she's just getting started.

I wouldn't demand money from her since that's just who I am. But I would demand all my photos for free, her largest and most expensive package for sure. And make it clear that when the book comes up for renewal you want the ad taken out (if that's what you really want).

01/14/2005 01:08:10 PM · #5
Originally posted by ladymacphisto:
I know she owns the rights to the pics- but I didn't sign a release and she didn't ask my permission...


How do you know? If you know because she communicated somehow that was the usual procedure it sounds like regardless of any signed paper there was an implied contract. You'll of course have to ask your lawyer. We just play them here at DPC.
 01/14/2005 01:10:48 PM · #6
Originally posted by GoldBerry:

I wouldn't demand money from her since that's just who I am. But I would demand all my photos for free, her largest and most expensive package for sure.


That's the equivalent of money...

Message edited by author 2005-01-14 13:11:04.
 01/14/2005 01:13:16 PM · #7
If you know a lawyer who can draft you a letter for free, let them. Then begin "settlement" talks. You'll get more, even if it's just free prints, that way. Perhaps you can get more than this set; next years, etc.
 01/14/2005 01:17:40 PM · #8
Do read carefully what you have signed, and make sure that there is no language in the contract that can be construed as a release. If you have with certainty not signed anything that would be considered a release, go and talk with her; I'm sure the two of you can come to a reasonable agreement, and she will learn that this is not acceptable.
 01/14/2005 01:19:38 PM · #9
I'm pretty sure a photographer only has limited rights without a complete signover from the model. It would sort of be like a studio greenlighting production of a screenplay when another studio holds an option.

Since the photographer is profiting from the photos, I can see an issue.
 01/14/2005 01:31:41 PM · #10
It should have been agreed upon prior, imo. I'd probably just call and ask for freebies in exchange.
I've kind of got the opposite. I just received a newsletter from Santa. His business card was attached. He used one of the photos I took of him at a Pet Shoot for his business card! He asked me for an 8by10 and I remember him saying it was for his resume/portfolio. What are you going do? Sue Santa? It was given in the spirit of the moment. I guess I should have been more specific about it's useage and put it in writing. still learning...
 01/14/2005 01:31:51 PM · #11
Originally posted by thatcloudthere:
Originally posted by GoldBerry:

I wouldn't demand money from her since that's just who I am. But I would demand all my photos for free, her largest and most expensive package for sure.


That's the equivalent of money...


lol yes well I know that. But that way you both get what you want without putting her out of business. When I hear people talking about lawyers and money, I get nervous. You never know just how much money they're talking about. People usually want more money then their wallets can hold (or need).

I'm just trying to give a little perspective.

Message edited by author 2005-01-14 13:33:34.
 01/14/2005 01:35:15 PM · #12
Originally posted by GoldBerry:
I'm just trying to give a little perspective.


Fair enough, I understand...I think at least the price of the ad itself would be fair for one time use.
 01/14/2005 01:42:59 PM · #13
But if it were inthe yellow pages then you'd be talking about thousands of dollars. Not sure what it would be for a local publication. Which still doesn't get you anything other than a fist full of cash..there's no moral resolution..that's the problem I see.
 01/14/2005 02:04:32 PM · #14
I have no idea what is the law in the US, and I am sure that the law in Israel will do you no good. Yet, there are 2 issues here that I think you should bare in mind.
(by the way, according to the Israeli law, this is VERY CLEAR. No dark edges you can bend. I suggest that you check with a lawyer, for I am sure the US laws define this even better.)

1. If the model is underaged - no one, and I mean NO ONE can publish their photographs without their parents consent! Have you agreed to publish those photos? I understand that you did not.

2. If you have ordered this job (i.e. you signed a contract regarding the matter of this job) then YOU owe the copyrights of the photographs. Not the photographer. And it is you who can agree or disagree to any further publications of those photoes.
Of course, you are not suppose to do further commercial use of those photoes according to the usual contract, but the photographer can not and must not do so either!

Of course, you should check carefully the small letters of the contract you have signed, but since your daughter is underaged, I believe that according to any law at any country, the photographer can not publish such photos without your specific consent.
 01/14/2005 02:13:39 PM · #15
Be flattered that she used them... then go and buy the pics you feel are your favorite like you intended to in the beginning
 01/14/2005 02:16:58 PM · #16
Originally posted by gusto:
Be flattered that she used them... then go and buy the pics you feel are your favorite like you intended to in the beginning


While you're there, take a photo of her and use it to advertise your photography! ;0)
 01/14/2005 02:18:45 PM · #17
Originally posted by GoldBerry:
But if it were inthe yellow pages then you'd be talking about thousands of dollars. Not sure what it would be for a local publication. Which still doesn't get you anything other than a fist full of cash..there's no moral resolution..that's the problem I see.


I think the moral resolution is that after paying a settlement, or otherwise getting in trouble, that photographer will not do that again.

If they do, then they deserve to get hit harder with a penalty next time.
01/14/2005 02:21:50 PM · #18
I would talk with her first. If she is new, maybe she didn't know this is wrong and you might be able to save her a lot of trouble by letting her know. Ask her if she did the ad herself. If she had someone else do it, then they should have been aware of the legalities and not used the pictures without a release. If that's the case, I'd have a long talk with them.
Are you sure you never signed anything? Most studios have a standard clause in their contracts that allows them to use pictures for advertising purposes.
 01/14/2005 02:27:16 PM · #19
Wow, there are people here who are really out for blood. Certainly she should be told that what she did is both wrong an illegal. But I would tend to give her the benefit of the doubt and not try to punish her. I would also expect to get at least 10, 8 by 10 prints of your daughter at no cost. Where to go from here depends a lot on her attitude, if she is unwilling to try and make things right and is not apologetic then go for all you can get.

My guess is that she will be apologetic and that she simply did not know any better.

BTW even if she has a sign in the studio saying that all photos taken may be used for adverting, she most likely still did not have the right to do so.
01/14/2005 02:28:37 PM · #20
Technically she is using your child to endorse a product - which is an open & shut case for you if you ever took her to court.

Secondly she can't print pictures of an underage child without your written consent.

So she is in double trouble if you like.

I would approach her and see what she says, don't make a demand just let her know you know - she may offer a year of prints or some compensation.

If she shrugs it off, then pursue it. But give her a fair chance first - and remain nice and civil, she may not realize she has done wrong (although that would be idiotic)

01/14/2005 02:41:32 PM · #21
If these were "school photos" you need to examine the agreement/conditions stated on the original order form. There may already be language constituting a release built-in, much as DPC has in the TOS regarding its continuing right to display your photos.

Don't assume -- read the fine print. Then, if there's no release language, you may take your choice of actions.
 01/14/2005 02:43:00 PM · #22
Hey we all mess up, if someone called me idiot everytime I unconsciously made a mistake: I would start thinking my name IS Idiot.

01/14/2005 02:45:35 PM · #23
Duh & oops don't work here. At best she has forced you into a negotiation you did not seek and at worst invaded the privacy of you and your daughter as well as breaking civil law. We don't get to arbitrarily use pictures of people which we take without their knowledge and consent, that is baseline knowledge and studio photogs know or should know that. Where you go is up to you and your character. But at least she should hear from you this is totally unacceptable conduct towards you her client and your child.
 01/14/2005 02:48:15 PM · #24
There's been some useful feedback here - and I'm not one to buck a trend.

Clearly, she's evil. This is a ploy to exploit and destroy your daughter's image and dismantle your family. I strongly recommend a fire bombing of the photo studio as a starting point and then, if an apology and substantial financial compensation is unforthcoming, move on to her home and relatives' properties. Failing a satisfactory outcome at this stage, then try a physical 'approach' as she's leaving for the evening (but you'd better be a bit useful with the dukes).

Any other queries - you know where to find me. Hope all turns out well.
 01/14/2005 02:56:35 PM · #25
General,

the child is one year old, so they are not likely to be school photos. It WOULD help a lot if the person who started this thread weighed in and told us what kind of a studio took the pictures and under what conditions.

Everyone;

If the parents took the child to a studio of their choice and hired the photographer to do the pix (which I presume is the case), and if they did not, in fact, sign a release agreeing to the use of these photos for studio publicity, then the studio is VERY MUCH IN THE WRONG and they are gonna be in a world of hurt sooner or later if they keep this shit up.

I believe the clients (the parents, here) have an OBLIGATION to beat feet over to the studio, if this is the case, and tell them they are out of their freaking minds. Personally I wouldn't be inclined to sue, but I damned well would want an apology, some free prints, and perhaps the refund of the fee paid to the photographer. But hwatever compensation, if any, is worked out, this photographer needs to be told immediately that she has crossed a line and is on legally indefensible grounds, IF the facts of the incident are as outlined above.

Robt.

Message edited by author 2005-01-14 14:57:42.
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