Photographers copyright VS. a person's right to their image/likeness

[Petaris]

Today on Reddit there was a post/thread in the photography sub-reddit that spiraled into a discussion (read "long argument") about the following situation and it really got me to thinking about how unusual the laws are around photography and photographers.

The gist of the situation: A boudoir shoot arranged by and paid for by an individual and a question about copyright and what could be done with the images by the photographer.

A few immediate points:

• By nature a boudoir shoot would be done in a private space, either in a home or in a studio, but either way not anywhere open to the public in general.
• The shoot is arranged by the subject of the photographs.
• The shoot is paid for by the subject of the photographs.
• By default, the photographer owns the copyright to the photographs.
• No model release form and no equivalent included in the contract.

So, in this situation, the photographer, even though they are hired to take the photos, which are private in nature and taken in a private space, will own the copyright.

What the underlying argument was about is, what can the photographer do with those photographs?

The opinions were pretty split on this but with, I would say, a slight majority saying that the photographer could do whatever they wanted with them, including adding them to their portfolio, publishing them to a website, selling them to a stock picture site, or just selling prints to whomever would buy them.

I did some searching and, in the US, there seems to be a couple of laws that maybe come into play. One of them has to do with images that would violate privacy when there was a reasonable expectation of privacy (photos of a private nature taken in a private space perhaps?). Another one of them has to do with publicity and specifically seems to be aimed at anything that would constitute being used to promote or sell a product or service (like photography services or prints perhaps?). The laws seem to vary state-to-state as does interpretation of them. Additionally, celebrities apparently enjoy another law that relates specifically to them alone (shocking I know).

Personally I think that while the photographer may own the copyright, which honestly I disagree with when they have been hired to take the photos in the first place, I don't see how they should have any right to do with them as they see fit in this case.

I know there are a few photographers, though I suspect we are all amateurs and not in the business, here. What are your thoughts?

Edit: a couple of grammar/typo corrections

 

[mdchachi]

I think we need to be aware of this and make a contract with the photographer before you have them take photos for you, especially of boudoir or intimate shots.
Now let's take this into the next century. What if a photographer took all those shots and sold them as NFTs?
(I've had NFTs on mind ever since I saw this story about Sultan Gustaf Al Ghozali.)

 

[Petaris]

With regards to the scenario above? I think that would be similar to selling the copyright to the picture wouldn't it? And thus potentially violate both of those same laws.
At that point though, would the purchaser of the NFT have any legal restrictions from use whatsoever? I would think not.

Honestly, I think NFTs are absolutely pointless. I don't see any way that you could enforce their ownership or prevent their use if stolen.

 

[mdchachi]

With regards to the scenario above? I think that would be similar to selling the copyright to the picture wouldn't it? And thus potentially violate both of those same laws.
At that point though, would the purchaser of the NFT have any legal restrictions from use whatsoever? I would think not.

Honestly, I think NFTs are absolutely pointless. I don't see any way that you could enforce their ownership or prevent their use if stolen.

With that attitude, clearly you'll never get rich on NFTs.
I think you're missing the point. We can all have copies of The Scream on our walls. But only one person or organization can own the original.

That's an interesting question regarding whether or not one could sue somebody for misuse like the owner of the original Scream presumably can. (Or can they? I don't know. It might be too old for copyright to hold.)

But that doesn't really matter to most people because they are essentially like penny stocks. People buying and selling them are for the most part trying to "invest." But unlike penny stocks, you and I can create new ones. And there's no expectation that there be some underlying asset like a "company."

 

[bldrhouse]

Former assignment -- TIME, NEWSWEEK, NYT, FORBES, BIZ WEEK, PEOPLE, etc etc -- and stock www.GettyImages.com photographer here: without a MODEL RELEASE, the images may not be sold or published anywhere. Common for photogs to use their images for self-promotion. When my stock agency sold the rights to use a photo (for which I had hired models), it was for specific, time-limited rights. Even when a client wanted an exclusive forever license, they did NOT own the copyright (which would have allowed them to sell rights to my photograph). I was REQUIRED to have signed model release (a copy of which I gave subjects) for stock usage, unless textbook or news article.

The photographer is skating on dangerously thin ice in the above query; s/he can be ruined by an even half-smart plaintiff's attorney given the expectation of privacy as detailed.

The laws for fair usage are pretty clear: a photo of a person on an icy street could be used in, for example, an article in local paper about bad weather, dangers, "why aren't our streets cleared?" I would get their name for caption if they were identifiable, but if they didn't want photo used (leaving lover's house?), would not.
If not identifiable, probably not bother. Some years ago a man sued NYT for using his single photo in major piece about poverty; he won because although he was in public w no expectation of privacy, it singled him out -- and he was, in fact, a successful businessman, not in poverty at all. That he was Black did not help the NYT at all.

I photographed two side by side houses -- one new, the other not, but not decrepit at all, just not new -- for the cover of a book about changing neighborhoods (not race or money, but simple normal changes to established middle-class ones) -- and owner came outside yelling at me about privacy, etc. I was on public sidewalk, not his property; cover did not even identify city. No issue for me or publisher.

Look up rights managed vs "royalty free" photography for more info, and GettyImages' website has lots of info, even each photo.

Be careful: just because you can see it, does not mean you can publish a photo.

ZK

 

[bldrhouse]

We can all have copies of The Scream on our walls. But only one person or organization can own the original.

The museum that owns the rights can sell those copies -- note all the stuff with the pic -- but you or I cannot.
Copyright is usually only for 99 years, so unless there is a foundation or family or other that owns certain rights, not usually an issue.
But now companies are securing Trademark rights to pix of products: if i made a stock photo of someone w a computer, I would photoshop out the name/logo.
Almost ANYTHING can be protected as intellectual property.
Buy a book: you can resell it, give it away, make photocopies for yourself, but you cannot sell those photocopies.

It's business.

 

[bentenmusume]

I think you're missing the point. We can all have copies of The Scream on our walls. But only one person or organization can own the original.

The Scream is an iconic painting created by an immensely talented artist that has stood the test of time and captured minds and imaginations for centuries. It has actual artistic merit—and hence, monetary value—that an ugly-*** procedurally-generated .JPG of an ape or a virtual plot of land in a barely-functional "metaverse" game with maybe a couple hundred unique users at best does not.

But unlike penny stocks, you and I can create new ones.

You and I can "mint" new ones if we have access to a degree of investment capital and are okay with places like Opensea and whatever taking a cut out of all of our transactions.

And there's no expectation that there be some underlying asset like a "company."

So, it's a good thing that rich people can get richer by speculating on virtual crap that doesn't actually have any underlying purpose or value other than to be speculated on—as opposed to investing in, say, genuine artwork or actual companies that provide goods or services to make the world a better place?

People who are into NFTs and are actually enjoying it and/or making money or whatever, great, I guess I won't begrudge you your fun or your success. But if this "market" eventually crashes and burns and is revealed as the Emperor's-new-clothes meets Ponzi scheme that it is, I would shed absolutely zero tears.

On second thought, I'm going to stop here. Let it suffice to say I'm not a fan of NFTs.

 

[Uncle Frank]

 

[mdchachi]

You and I can "mint" new ones if we have access to a degree of investment capital and are okay with places like Opensea and whatever taking a cut out of all of our transactions.

Does it really take capital to create an NFT? The story I linked to earlier about the Indonesian college student led me to believe the barriers to entry are very low.

So, it's a good thing that rich people can get richer by speculating on virtual crap that doesn't actually have any underlying purpose or value other than to be speculated on—as opposed to investing in, say, genuine artwork or actual companies that provide goods or services to make the world a better place?

It's not much different than any collector, gambler, investor. Day traders in stocks or options are not actually investing.

People who are into NFTs and are actually enjoying it and/or making money or whatever, great, I guess I won't begrudge you your fun or your success. But if this "market" eventually crashes and burns and is revealed as the Emperor's-new-clothes meets Ponzi scheme that it is, I would shed absolutely zero tears.

On second thought, I'm going to stop here. Let it suffice to say I'm not a fan of NFTs.

Your opinions don't bother me as I have no skin in the game. I'm just intrigued because of the idea that the little guy has a chance to make the collectible assets.
Whereas other "collectible" items such as stocks, pokemon cards, beanie babies, do take a lot more capital and effort to create.

 

[Petaris]

@bldrhouse thank you for your information and taking the time to respond!

Out of curiosity, what would an Assignment Photographer be considered, an employee of those publications or a freelancer? My understanding is that if you are considered an employee then the copyright would actually be owned/held by the employer not the photographer.

This is one of the things that I was most interested in in the above scenario, and really most photography jobs. If you are being paid specifically to "go there, take pictures of that" then it seems odd that the copyright would be held by the photographer and not the person who paid for the job. Say for example a wedding photographer who is contracted to come to a specific place at a specific time and take pictures of a specific thing. Also, you wouldn't usually expect any sort of model release in this case I would think, as it isn't a model that the photographer has hired for the sole purpose of taking pictures of them.

Its completely different then a scenario where someone, on their own initiative goes somewhere they want to go and takes pictures of something they want to take pictures of.

What are your thoughts about this?

 

[bldrhouse]

The editorial (magazine, newspaper) photographer, as a freelancer on assignment -- if not an employee -- always holds the (c) unless otherwise agreed.

The publication could reuse the photo w/o further compensation if entire page w photo reproduced.

National Geographic, for example, has huge photo archive that they sell rights to, and those sales are probably split w photographer, but I don't know the terms.
I think some (all?) have been given to GettyImages to license; you could look at GI...

The "copyright" is a right to use, reproduce, but not copy.
I hire an architect to design me a house: I get ONE house; cannot sell plans or build more houses from those plans; architect holds
copyright, but I own the house I built.

The first case where someone makes an NFT from a copyrighted photo will be interesting... if someone is stupid enough to do so.

Years ago, Jeff Koons (look up his "art") made sculptures from photo of bunch of cute puppies in someone's arms and sold for $$$$.
He was sued -- and (c) is Federal court issue , VERY EXPENSIVE to bring suit in -- lost, had to give photog all the proceeds plus one sculpture and
destroy the others.

Another question is whether the original is obvious in someone's redo; zillions of pix of cute babies (see GettyImages.com) but is yours so much like mine
that it is obvious copy?

Wedding pix: photog can use for his marketing, but if wants to sell as stock (and most such are not of such use), needs Release.
all such you see in ads are either stock or shot on assignment for the company. $ -- location, models, props, assistants, etc.
Real people don't look good for that.
My biz partner and I did a series for stock 20+ years ago -- they cost us $30,000. Money returned over next few years.

Contracts can be negotiated as both parties desire.

I photographed the head of PEMEX in Mexico for Forbes; Pemex loved the photos and hired me to shoot their annual reports ($$$).
They loved them; next year they hired some Mexican photog (for a lot les money) and had him reshoot -- identical lighting, perspective, etc -- my pix.
I could have sued him in US, but Mexico?

Car pix for, say, Ford: most not good for stock, but the "rough/rugged pickup at work" pix could be; Ford would never allow their products to be used for anything else, and contract would clarify that. If the image were a barely-seen truck -- no identifiable logos -- disappearing in a cloud of dust at sunset, no issue, but depends on contact....

hope that clarifies. Follow the money.

 

[johnnyG]

I've been following this thread, but am not a pro, and the only people I do are personal (and generally never post/"publish" those). In the past I've read some about taking photos/videos here in japan, which may include people, and some of the issues/restrictions involving use (fair or not, whether something is salable, or even publishable on the web, etc.).

I think another aspect is today's era of AI, face recognition, monetization and surveillance capitalism--I've seen news/financial reports about the value of a person's profile to facebook (about $60/yr in the US), and the images a person posts may be a component of that value--they're not being sold on, nothing about copyright, but the people in them show your connections/link to others, which may make you/your profile more valuable as a product that is then sold to advertisers, PACs, and so on.

 

[mdchachi]

This is an interesting article about NFTs and copyright. Basically the link to copyright and legal aspects are still unclear. It sort of reveals how dumb NFTs are. But that still doesn't reduce my desire to somehow profit off of them.

What do you actually own when you buy an NFT?

What do you actually own when you buy an NFT? Just the metadata, not the actual work itself, an intellectual property law expert explains NFTs and copyright.

www.weforum.org

 

[bldrhouse]

NFT's -- like anything else -- are worth only what someone is willing pay.
some guy sold a single grey pixel NFT. Interesting.

 

[Petaris]

@bldrhouse Thank you again for taking the time to reply. Its been very informative!

Also, I agree, things are only worth what someone is willing to pay.

@johnnyG The laws in Japan certainly take it up a notch in complexity. Though I kind of wish we had better protections for individuals here in the US when it comes to being profited off of at the expense of our own privacy.