Quiz for the legally minded types, from musique174:

[theweaselking]

"If a photographer takes a picture of someone. And no money traded hands and no releases were signed, who has the rights to use this picture?

The question is that someone (we will call this someone - she) took a picture of a good friend of mine (we will call him - he), of which he really likes. He posted it on his personal BLOG and she, the photographer, threw a copyright fit saying that he was using a copyrighted image. She contacted the web hoster and had his entire account killed for it.

But heres the question...If its a picture of you... Don't you have some rights to use the picture? Please note no model release was signed and no money changed hands."
=========================
My personal thought is that no, he doesn't have the right to it, any more than movie stars own the paparazzi pictures that get printed in the National Enquirer, but I can't give a legal reasoning for it. How about you, since I know I've got at least three lawyers and a couple of pro photographers reading this?

Comments

[missysedai.livejournal.com]

He does not have a right to the photo, no. Your face cannot be copyrighted.

This falls under Social Photography, in which someone may certainly ask you for (or purchase from you) a photo which you have taken of them, but they MAY NOT display it, sell it or reproduce it without YOUR permission, because you are the creator of that work.

I'll go into detail a bit more later, we're off to the movies, but I figured I'd give you the info the resident photographer was yelling around the corner at me after I read him your scenario.

[musique174.livejournal.com]

What if you give that person a copy and they are not using it to make money but say as an icon picture for thier blog?

[torrain.livejournal.com]

I really don't think the money matters (unless there's a model release form and it says "in exchange for X consideration", or some other legal document).

I beleive that (*barring work-for-hire, I guess) the copyright of photos belongs to the photographer; her giving him a copy of the picture doesn't mean she has given him any rights to distribute it.

[larabeaton.livejournal.com]

But is posting it on his personal blog considered "distributing" it?

[torrain.livejournal.com]

I can't imagine why not.

[ryusen.livejournal.com]

Technically, it makes the image available for distribution. Just as if you put an .mp3 file on a web/ftp/p2p site, that you didn't have permission to distribute, you can get in trouble.

[torrain.livejournal.com]

My (vague, certainly correctable) impression is that he might at most have the right to refuse to let her display the picture--I think that depends on the circumstances under which it was taken. But I don't think he has a right to use it, any more than (casts around for example) you'd have a right to use a drawing I did of you if I didn't want you to.

As I understand it, not signing a model release form means that he hasn't formally given her the right to use the picture.

[corruptedjasper.livejournal.com]

On the other hand, I think it would be unreasonable to *expect* i9n adv ance that the picture taker would have an objection to you posting a picture of yourself on a blog.

Pulling it when asked, sure, but getting your site killed because you inadvertently assumed the photographer isn't a total bitch is completely over the top.

[torrain.livejournal.com]

I am deliberately not commenting on the behaviour of anyone involved, photographer or subject; I've got one second-hand summary of the situation, and a burning desire to not take sides in teh drama.

I do concur that expecting the photographer to object would be unusual.

[vagabond27.livejournal.com]

If for no other reason than there was no copyright agreement when the photo was taken he has no right to it, plus what the first poster said.

...

Now, that having been said, the host is a private comoany and, no doubt, when she signed up for her blog they specificly stated that they coudl terminate her account at their will. So.... there you have it.

[catlin.livejournal.com]

Neither one has exclusive right to use the picture, as there was nothing signed allowing it. (depending on state of course.) We are dealing with this issue in my sca group right now, that we have to go out and get signed releases from everyone for all the old pictures on file, both from the photographer and people shown.

[missysedai.livejournal.com]

Under US copyright law, the photographer has the exclusive rights to the photo, barring prior written agreement.

She can't make money off it without a signed model release, but she (and she alone) has the right to display it in a "non-defamatory" fashion. (IOW, she can hang it in her studio, put it on her website or stick it in her portfolio as an example of her work, but she may not sell it to a magazine or newspaper or use it in a book without getting the subject's permission in writing.)

[torrain.livejournal.com]

*tips hat* Thank you for that explicit summary.

[missysedai.livejournal.com]

I'll pass the thanks along to the hubby, who is our resident photography geek and neurotic artist.

Glad to be of help!

[musique174.livejournal.com]

Okay I understand what y'all are saying...

Next question is that the picture was taken of him while he was at work... The photographer was on the boat that he works on (yes he is a sailor). Does that make a difference, as it was not a public place?

[waterspyder.livejournal.com]

Yes, yes it does.

I'll relate most of what I know from this field.

1) Every person has the right to decline being photographed. If he or she is photographed without prior knowledge, they have the right to ask the photorapher not to print or publish the photograph.

2)Public figures are excepted from this, since as a public figure there is an implicit agreement that they give up some rights to privacy. These include politicians and movie stars. In the US, despite being both, Arnie still manages to sometimes win where use of his likeness is concerned.

3) The subject of a photograph has no real legal rights to the photograph unless otherwise stated in a contract.

4) Being photographed while at work actually makes it an issue of personal safety and security and becomes the employers problem. Obviously if the subject allowed the photographer to take the picture, then the onus on the employer is diminished.

I guess the bottom line is "he" doesn't really have a legal right to it, but unless he consented, neither does "she".

[ryusen.livejournal.com]

IANAL, but this issue is something that touches close to me. Everythign i've read from articles dealing with this, explaination of copyright law, and posts from people claiming to be lawyers is the the person who created the work has the sole and exclusive right to reproduce and distribute the work. I think the only catch would be if "she" tried to make money off of the picture, he might be able to make a civil case for some kind of royalty, but ultimately the image still belongs to her.

[torrain.livejournal.com]

Agreed. But that right can be curtailed by the subject; if a photograph is taken while invading someone's private space, makes private facts public[1], or when the photograph would cause a reasonable person to believe something about the subject that isn't true (I guess you'd call it a visual version of libel).[2] Or, as you said, if the photographer is making a profit off it.

Mind you, none of those circumstances seem to apply.
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[1] Unless said facts are both true and newsworthy, which is why paparazzi aren't getting sued as often as you might expect. Blame yon average individual's willingness to consider movie star X on a binge as "newsworthy".
[2] Very crude summary from The Photographer's Business and Legal Handbook.

[ryusen.livejournal.com]

yeah, i forgot about the invasion of privacy type of situation. you also reminded me that in the US, at least, there is some kind of difference of rights between a private citizen and a public figure. i don't know fully, but just that if you are somehow famous, then you lose a certain amount of your privacy rights.

[hadesflower.livejournal.com]

I think that she is a bitch, blogs are todays version or diaries or photo albums, if she didn't want him to post the photo somewhere where other people could see it( and I mean that in the sense of seeing it online or in person) she shouldn't have given him a copy of the picture, it sounds like she didn't set up the shoot or do anything more than take a random shot and that he didn't have to buy the image, he didn't steal the image, he wasn't selling the image and I bet he probably mentioned her somewhere in his blog thus giving her credit for the image and unless she actually went out and copywrighted it or had it developed somewhere where they put the date on the photo or it has her signutare its a bitch to prove that the photo he used is the photo she took without taking him to court

[torrain.livejournal.com]

*shrug* Maybe. I don't disagree that it was reasonable to expect he do it, but that doesn't have anything to do with whether he had the right to do it, and the answer appears to be no.

And she doesn't need to copyright the picture; she has the copyright. Whether she registered it or not is a different matter, how easily she can prove it is a different matter, but apparently she can satisfy the web hoster and I wouldn't expect them to kill an account on accusations without some kind of backup.

[missysedai.livejournal.com]

Whether the photographer is a bitch or not is entirely irrelevant to the question at hand. Similarly, whether or not she can prove he used the photo she took is irrelevant - she's got the negatives, that's all the proof she needs.

The law is exceedingly clear about who owns copyright to an image (the person who pushed the button) and when copyright is effective (the instant the button is pushed). It doesn't matter that she didn't set up a shoot. The photo is still hers - the law applies regardless of the process of the creation of the work. (Even your comment above is copyrighted, though under the LJ TOS, you grant permission for it to be distributed across LJ's servers).

Try these for some good information:

Copyright FAQ
http://www.photolaw.net/faq.html

Use of Photos and Releases
http://www.asmp.org/commerce/legal/releases/

[thormation.livejournal.com]

"She's got the negatives"?

What are these "negatives" that you speak of, O time traveller from the past?

[missysedai.livejournal.com]

People do still shoot with film, dear. Archaic, I know, but artists are weird like that.

[jerril]

Money has absolutely nothing to do with copyright. If he was making money off of it, she could sue him to get the profits from it, but that's it.

You don't have to "copyright" something. You GET copyright instantly when you create something.

[hadesflower.livejournal.com]

actually on a legal sense you don't, you have to prove you created it and when in order to have a copyright that'll hold up in court and if you didn't go through those steps and someone else copys your work and does they own it