Is this Legal??

[indykramer]

My wife and i just had pictures taken of us at the beach for use in our "big" wedding slide show coming up in June. The photographer does this part time and drums up business primarily through a network of military wives and her myspace page. After the shoot she asked us if she can use our pictures on her myspace page. We agreed because it was pictures of other couples that led us to buying her services. The pictures came out great and she posted on her page as an album like she said she would. One of my wives friends messaged her today that she saw a picture of us on someones myspace layout. We looked at the picture on the photographers album, and in the comments section there was a note by the person who used our picture saying, "Thanks for letting me use this i gave you the credit as usual." The person who used our picture designs layouts for people that want to pretty up their myspace pages if their is such a thing.
Our photographer was very cheap and we really had a good time goofing around and having our picture taken. We dont mind her using our pictures as examples of her art. But when it got turned into a "layout" It no longer showcases the photographers ability to capture a moment and compose a photograph. Its just me and my wive essentially using just us. My wife and I feel a bit uneasy with our picture being used for someones myspace page.
So i turn to the most knowledgeable group of gentlemen i know to as if this is legal? Who actually owns our picture?

Here is the original picture

http://i25.tinypic.com/fb8s8.png

And heres what it got turned into.

http://i26.tinypic.com/23m1p4z.jpg

[kongjie]

If I understand correctly, you gave the photographer permission to use your picture, but your expectation was that it would be the picture itself, more or less unchanged, in a sample gallery kind of thing.

And what actually happened is that the photographer did some photoshop work with your picture and then used the resulting image as part of a myspace layout.

If that's correct, there's nothing really "illegal" about it as you gave the photographer blanket permission to use the image.

I would simply suggest that you contact him or her and say that you didn't intend to grant permission for derivative works, and ask him/her not to use it as a myspace layout. This request should be a first step, before you get angry etc.

[JayKay]

I do believe that the photographer owns the picture and the rights to the picture. You only own the right to use their picture when purchasing the picture.

[boboakalfb]

I would simply suggest that you contact him or her and say that you didn't intend to grant permission for derivative works, and ask him/her not to use it as a myspace layout. This request should be a first step, before you get angry etc.

I believe that would be a great place to start.

[kongjie]

I do believe that the photographer owns the picture and the rights to the picture. You only own the right to use their picture when purchasing the picture.

I would think that this counts as work for hire, and so the photos belong to the couple.

However, it seems that he gave the photographer permission to use the picture. That's the issue here.

[ilovekittens]

well, the way I see it since you paid for the photographers services and the picture is of you two you would own it.

[Must Dash]

This area is a minefield. The law in Australia (my guess is that it wouldn't be that different to the US) pretty much works on the basis that copyright belongs to the author in the absence of an agreement to the contrary.

There may also be an issue with Moral Rights, which, as I understand it, restricts the right to modify images. That said, this obviously isn't worth a legal battle, so trying to resolve it by asking your photographer to ask the person who did (IMO one crappy layout) to remove your image is probably the way to go.

BTW. I'm surprised that none of the other gentlemen mentioned this, but your wife is gorgeous. You're a lucky bloke and I hope the two of you have a long and happy life together.

Cheers

Jeremy

[Tony Miller]

i most cases the photographer retains the rights to the photo. Your own the prints you purchased but not event he rights to copy them again. Most labs will ot reprint or copy any photo where the photographers imprint is on the bottom. They also typically retain all negatives and digital files.

I was a photographer a long ways back and had a fellow photographer shoot my wedding with a written contract for his time in shooting only. After the wedding we owned the negatives and all proofs without imprints.

Now, that said. If he has any class at all he will respect you wishes as to other using it in their advertising and only use it in his. In most professional photographic contract one defines just what "rights" the client is paying for and how and where images are used.

Tony

[neverwhere]

While this is a fairly grey area, the granting of permission itself comes with some caution. While the right to privacy may have been waived (hence, the photos themselves) the right of publicity may not have been explicitly granted. If there was a model release that held a clause stating that the pictures may be used for advertising/commercial/promotional purposes, you're basically sunk if you signed off on that. If this was a verbal agreement, then the point is moot, unfortunately as they hold about as much water as a sieve. Any portrait photographer worth their salt would have had a release on hand for any type of work of this kind regardless of experience or commercial aptitude.

Here (http://www.photoattorney.com/2006/02/commercial-vs-editorial-use-of.html) is a decent excerpt from legal counsel that somewhat addresses the issue.

[indykramer]

We did give the photographer permission to use the pictures to promote her business on her myspace page. But another person asked our photographer to use a picture of us. That is the part where we feel uneasy about that someone other than our photographer is using our picture.
We have email the photographer to contact the other person who used our picture to remove the layout and/or our picture from it.

[neverwhere]

We did give the photographer permission to use the pictures to promote her business on her myspace page. But another person asked our photographer to use a picture of us. That is the part where we feel uneasy about that someone other than our photographer is using our picture.
We have email the photographer to contact the other person who used our picture to remove the layout and/or our picture from it.

In that case, regarding the legality of that scenario brings us to the wonderful world of photographic derivative works (http://williampatry.blogspot.com/2008/02/photographs-and-derivative-works.html), and has somewhat more established precedents. However, many of them favour the actual copyright owner themselves (most likely the photographer). In that instance, if the photographer allowed permission of a derivative work to be produced then it may be legally sound. If the person making layout stole the photo and made a derivative work from it then that would be a copyright issue. However, given the same concerns regarding rights of publicity, the same may hold to derivatives. I am not 100% on this however, I just study what I can regarding law and photography mostly as a CYA move.

[verminaard510]

In my personal experience, the photographer does have the right to use your picture in his portfolio, showing off his previous work. I do portrait sketches and always get permission to use them in my portfolio or in advertisements.
Quick plug here...http://www.myspace.com/sketchesbyjustin :biggrin:
If the work is commissioned by you, I think that it would be wrong to use it in the way that your photo was used.

[Ladykramer]

When the photographer asked us for permission to use our pictures she said "Can I post these on MY myspace." I said yes. On her myspace she makes albums, an album for each couple, and displays their pictures there. When we got home today I was notified that one of the pictures of us was being used in a layout. The layout displays our picture promoting us as a couple and not the artistic quality of the photograph and thus the photographer. I feel like we paid to be models! We wanted private pictures that capture who we are to display at our wedding, not pictures that will be used on random people's internet pages. That's creepy. I've emailed both the photographer and the woman who created the layout asking them to remove it. It's already in use by other people though so who knows how much good that will do. In a way I feel violated, although I know that the photographer took the pictures, we hired her for private pictures, not for her to use to promote her work. I feel we went a step further by allowing her to display the photographs on her private myspace with the expectation that they would only be displayed in an album, such like an electronic portfolio, that might promote future business. The current use of the picture does not promote her as a photographer but rather me and Nate. We agreed to allow her to post the pictures on HER myspace as an album so that she could promote her photography business by displaying examples of her work. However the current use of our picture is promoting my husband and I as a couple. The original photograph, and thus all artistic quality, has been altered and now serves to promote the couple involved and not the artistic photography behind it.

[Wil]

I can see you concern- however once an image is taken to the internet- it become unfortunately public property- you can try to track down each and every image and make them take the image off their site, but that would take an amount of time that most people do not have- you can always argue that you are not a public figure, thus without some recourse to the use of their image, but again, the initial "you can use my image" to the photographer opens it up to others who are not privy to the agreement that you made with your photographer.

I was a professional photographer years ago- and before the internet- when I asked to use an image- it was really only in the book I had- I could control it's use. Now with the internet- I would require a legal release and legal words to protect me if someone else "borrowed" the image form my web site.

I am sorry that you are going through this and hope a good result occurs for the both of you.

[neverwhere]

I've emailed both the photographer and the woman who created the layout asking them to remove it.

I sincerely hope they comply with your wishes, and not just on ethical grounds. It seems everyone involved stands to learn something from this experience. Hopefully this may change (for the better) some of the practices this professional takes with their business. On the other hand it can also shake people's (such as yourselves) trust in matters such as these, no matter how innocently it may have went down. I know with friends of mine those kind of agreements have been settled out of the gate with the couple stipulating the right to reproduce their own photos. As with most agreements however, best to get it in writing to remove all doubt.

But in any case, you guys have some wonderful pictures (that you look great in) that I hope you get to enjoy on your terms, nonetheless.

[Ladykramer]

I can see you concern- however once an image is taken to the internet- it become unfortunately public property- you can try to track down each and every image and make them take the image off their site, but that would take an amount of time that most people do not have- you can always argue that you are not a public figure, thus without some recourse to the use of their image, but again, the initial "you can use my image" to the photographer opens it up to others who are not privy to the agreement that you made with your photographer.

I was a professional photographer years ago- and before the internet- when I asked to use an image- it was really only in the book I had- I could control it's use. Now with the internet- I would require a legal release and legal words to protect me if someone else "borrowed" the image form my web site.

I am sorry that you are going through this and hope a good result occurs for the both of you.

The girl who created the layout has agreed to remove it from her site, a little disgruntled. Apparently removing it "is a shame".

We didn't agree to letting the photographer use the photographs however she pleased, but simply to place them in an album on her myspace. She then took it a step further. We paid for the photographs and now it seems like everyone is reaping benefits from it. I thought models were supposed to get PAID, not pay for their work to be publicized :001_huh:

[Ladykramer]

In addition the photographer has received my email and responded. She never gave permission for any of our pictures to be used in anything, including the layout. She has since made our album private so that only potential clients and people sincerely interested in viewing her photographic talent can view them.

[indykramer]

As you can see my wife has a better way with words than I do.
My wife emailed the woman who made the layout asking her to remove us for it. She complied and said she would. She had asked our photographer for permission to use any picture on our photographers myspace way before we had the pictures taken.
We just heard from our photographer and apparently the girl who used our pictures did ask permission for military photos not a blanket permission of her whole portfolio. And the women is now removed from her friends list and unable to see her pictures. She apologized profusely that this had to happen to us.

Thanks everyone for replying.

And Jeremy I am a lucky bloke. Thanks for the compliment and for calling me a bloke that's a first.

[AustinC9]

I don't know about the legal aspect of it, but it is a beautiful picture!

[Beast]

I think you two had a wonderful picture taken.

Still, a terrible crime HAS been committed.

Just...LOOK at the absolutely wretched MySpace layout.

Criminal.

[Ladykramer]

I think you two had a wonderful picture taken.

Still, a terrible crime HAS been committed.

Just...LOOK at the absolutely wretched MySpace layout.

Criminal.

hahahahahaha that just made my day.

[analog_kid]

I think you two had a wonderful picture taken.

Still, a terrible crime HAS been committed.

Just...LOOK at the absolutely wretched MySpace layout.

Criminal.

I agree. Holy cow that was bad.

[cwiscarolina]

I would not trust anything you hear here. Talk to a lawyer.

[vcardona]

I do believe that the photographer owns the picture and the rights to the picture. You only own the right to use their picture when purchasing the picture.

I disagree. IANAL, but this would seem to be covered under "work for hire" statutes since you are contracting the photographer to take and process the photos. Unfortunately, I think the original poster gave up most of his rights when he allowed the photographer to post the pictures on MySpace. Perhaps a lawyer will weigh in and give us his opinion.

[vcardona]

We did give the photographer permission to use the pictures to promote her business on her myspace page. But another person asked our photographer to use a picture of us. That is the part where we feel uneasy about that someone other than our photographer is using our picture.
We have email the photographer to contact the other person who used our picture to remove the layout and/or our picture from it.

Again IANAL, but "right to use" and "right to distribute" are two different things. To determine what rights you have you need to ascertain who actually holds the copyright to the images in question. The theme would seem to be a derivative work, but that point is moot if the person had proper permission to use the image.

[TstebinsB]

I don't know about the legal aspect of it, but it is a beautiful picture!

+1

[jazzman]

As you can see my wife has a better way with words than I do.
My wife emailed the woman who made the layout asking her to remove us for it. She complied and said she would. She had asked our photographer for permission to use any picture on our photographers myspace way before we had the pictures taken.
We just heard from our photographer and apparently the girl who used our pictures did ask permission for military photos not a blanket permission of her whole portfolio. And the women is now removed from her friends list and unable to see her pictures. She apologized profusely that this had to happen to us.

Thanks everyone for replying.

And Jeremy I am a lucky bloke. Thanks for the compliment and for calling me a bloke that's a first.

She's a keeper!

[Haiku]

Trust me when I tell you that the only person who can answer your question is a lawyer who knows this area of law in your particular jurisdiction. questions involves various areas of law:

The law as it relates to privacy;
The law as it relates to contract;
The law as it relates to copyright and intellectual property; and
The law as it relates to the internet.

Generally though I can tell you that photographers who know what they're doing always get models to sign a release that gives the photographer permission to use the photograph as he or she sees fit. Without such a release the photographer is potentially liable for damages. The law, at least as it stands in Canada, has evolved to a point that people have been successful in stopping others from using their images in situations where there is a legitimate expectation of privacy.

A good starting point by the way is www.photo.net and do a search on copyright. Here's a link to a good starting place from that website:

http://photo.net/bboard/q-and-a?topic_id=23&category=Legal+(incl.+Copyright)

Good luck with this.

[kabrown]

IANAL also, so I did a quick search of wikipedia. http://en.wikipedia.org/wiki/Work_for_hire.

It would seem like the work was not one made for hire basically beause you didn't have the type of control over his work that you would of an employee and apparently did not have an express agreement that it would be a work made for hire. Wikipedia says that if it's not a work made for hire then the photographer basically has the copyright. Again, this info is from Wikipedia and may be totally unrealiable. If it's really worth it, you should definitely contact a lawyer to find out your options.