Intellectual Property (copyright, model releases etc.)

[ajay0612]

What has not been mentioned is the possible exposure of the models
to an action by Corona. Again, not probable, but possible, they
could have been under some sort of contract with Corona. Using
their images without consent might have brought them legal problems.

Everybody is free to sue anybody. But one has to see reasonable
chance of success unless one has overflowing money.
Here imaginations are running wild and beyond resonableness.

I'm not so sure, near where I live, there is a bar where the New
England Patriots cheerleaders appear when they are not with the
team. The management will not allow cameras because the women are
under contract with the Franchise and the franchise want to control
the use of their images not shot at the games.

Dear Larz

That is to stop the misuse of their brand name. e.g. if the girls use their association (which gives them popular identity) to sell their own image to a magazine (maybe adult!). The girls (& in turn the magazine) will benefit due to their association with N.E.P. So it is a loss to N.E.P. It will be too easy to prove that.

In present case it is beyond reasonable to assume that Corona Beer/Girls image will benefit the product's sale.

In present case the prev.OP could have used the image without a fuss, but his declaration of intent spoiled everything. (It is not always prudent to make intent so bluntly clear. e.g. One may sometimes feel like killing someone, but try announcing that on a loudspeaker. ;-)
--
Regards, Ajay
http://picasaweb.google.com/ajay0612

 

[Larz Yerxa]

What has not been mentioned is the possible exposure of the models
to an action by Corona. Again, not probable, but possible, they
could have been under some sort of contract with Corona. Using
their images without consent might have brought them legal problems.

Everybody is free to sue anybody. But one has to see reasonable
chance of success unless one has overflowing money.
Here imaginations are running wild and beyond resonableness.

I'm not so sure, near where I live, there is a bar where the New
England Patriots cheerleaders appear when they are not with the
team. The management will not allow cameras because the women are
under contract with the Franchise and the franchise want to control
the use of their images not shot at the games.

Dear Larz
That is to stop the misuse of their brand name. e.g. if the girls
use their association (which gives them popular identity) to sell
their own image to a magazine (maybe adult!). The girls (& in turn
the magazine) will benefit due to their association with N.E.P. So
it is a loss to N.E.P. It will be too easy to prove that.
In present case it is beyond reasonable to assume that Corona
Beer/Girls image will benefit the product's sale.
In present case the prev.OP could have used the image without a
fuss, but his declaration of intent spoiled everything. (It is not
always prudent to make intent so bluntly clear. e.g. One may
sometimes feel like killing someone, but try announcing that on a
loudspeaker. ;-)
--
Regards, Ajay
http://picasaweb.google.com/ajay0612

That's what I was trying to say Ajay. Sorry If I wasn't clear. My point is that if the OP (in the other thread) used his image, announcment of intent or not, the use of the women's likeness without their consent, and Corona's name, without its consent is actionable. Depending on the use, both the women and Corona may feel that the use is not consistant with their wishes. I'm not saying they would nessesarily be successeful, but certainly a cause of action.

Have a great day,

Larz

--

 

[Lunatic59]

What has not been mentioned is the possible exposure of the models
to an action by Corona. Again, not probable, but possible, they
could have been under some sort of contract with Corona. Using
their images without consent might have brought them legal problems.

Everybody is free to sue anybody. But one has to see reasonable
chance of success unless one has overflowing money.
Here imaginations are running wild and beyond resonableness.

I'm not so sure, near where I live, there is a bar where the New
England Patriots cheerleaders appear when they are not with the
team. The management will not allow cameras because the women are
under contract with the Franchise and the franchise want to control
the use of their images not shot at the games.

Dear Larz
That is to stop the misuse of their brand name. e.g. if the girls
use their association (which gives them popular identity) to sell
their own image to a magazine (maybe adult!). The girls (& in turn
the magazine) will benefit due to their association with N.E.P. So
it is a loss to N.E.P. It will be too easy to prove that.
In present case it is beyond reasonable to assume that Corona
Beer/Girls image will benefit the product's sale.
In present case the prev.OP could have used the image without a
fuss, but his declaration of intent spoiled everything. (It is not
always prudent to make intent so bluntly clear. e.g. One may
sometimes feel like killing someone, but try announcing that on a
loudspeaker. ;-)
--
Regards, Ajay
http://picasaweb.google.com/ajay0612

Unfortunately it is irrelevant what you or I or even the bar owner beileve to be beneficial fair or even moral. While i am not familiar with the terms of the Patriots organization's contract with the cheerleaders, the point is that they are under contract which most definitely restrict the use of their images in and possible out of the uniform. They are compensated to promote and project a positive image for the team and i am sure a hoard of publicists and marketing managers have VERY strict guidelines how those images get to the media. "No harm, no foul" would be more applicable if there were no standing contracts, should any litigation ensue ... not that there would be any frivolous lawsuits in OUR great nation ... oh no, not in UH-mer-ka. OUCH! [sorry, my tongue was soo deeply planted in my cheek, i bit myself]

The same with the Corona girls. If they were in fact representing that company, you can be assured they were not handed twenty bucks and told to stand on the float and look good. There is a [probably lengthy] contract which specifies both conduct and compensation, giving the sponsoring company control over the use of the images, at least in a commercial manner, which the original OP stated clearly was his intent.

If he wants to use eye candy, I don't think i ever heard of anyone being sued by a puppy or a sunset.

--
The following is not an advertisement, editorial or political commentary.

http://cmgd.net

 

[Jim Coffey]

intent.

If he wants to use eye candy, I don't think i ever heard of anyone
being sued by a puppy or a sunset.

Wouldn't you need a property release from teh owner of the puppy?

(I believe God already gave us a blanket release for his creations; besides he doesn't need to sue if he gets mad)

 

[Lunatic59]

intent.

If he wants to use eye candy, I don't think i ever heard of anyone
being sued by a puppy or a sunset.

Wouldn't you need a property release from teh owner of the puppy?

(I believe God already gave us a blanket release for his creations;
besides he doesn't need to sue if he gets mad)

But don't forget, God created lawyers too. [Sometimes God's divine plan can be incomprehensible]

--
The following is not an advertisement, editorial or political commentary.

http://cmgd.net

 

[dave_s93]

That's why many model releases include language like:

"....in which I may be included, in whole or in part, or composite
or distorted in character or form, without restriction as to
changes or alterations...."

If a model signs this, they have no cause to complain if the
pictures do not represent what the model expects them to represent.

And language like this:

"....I hereby release, discharge and agree to save harmless
Photographer, his heirs, legal representatives and assigns, and all
persons acting under his permission or authority or those for whom
he is acting, from any liability by virtue of any blurring,
distortion, alteration, optical illusion, or use in composite form,
whether intentional or otherwise, that may occur or be produced in
the taking of said picture, video, or film or in any subsequent
processing thereof, as well as any publication thereof, including
without limitation any claims for libel or invasion of privacy...."

is even safer, basically getting the model to agree to never sue
the photographer based on how the pictures are presented or how
they affect the model's life.

Good luck getting a real model (or someone who can read) to sign something like that.

 

[dipics]

That's why many model releases include language like:

"....in which I may be included, in whole or in part, or composite
or distorted in character or form, without restriction as to
changes or alterations...."

If a model signs this, they have no cause to complain if the
pictures do not represent what the model expects them to represent.

And language like this:

"....I hereby release, discharge and agree to save harmless
Photographer, his heirs, legal representatives and assigns, and all
persons acting under his permission or authority or those for whom
he is acting, from any liability by virtue of any blurring,
distortion, alteration, optical illusion, or use in composite form,
whether intentional or otherwise, that may occur or be produced in
the taking of said picture, video, or film or in any subsequent
processing thereof, as well as any publication thereof, including
without limitation any claims for libel or invasion of privacy...."

is even safer, basically getting the model to agree to never sue
the photographer based on how the pictures are presented or how
they affect the model's life.

Good luck getting a real model (or someone who can read) to sign
something like that.

My model release has very similar language. I never have any problem getting models (or anyone else) to sign. It is pretty standard language.

DIPics

 

[jugglervr]

agreed, very standard, and I have around 25 on file and haven't had any refusals, so i must have had fantabulous luck.

 

[jugglervr]

hmm. if it was a prizewinning dog that was instantly recognizeable, then possibly.

interesting. You need a model release for people if they're recognizeable and non-incidental because of the privacy control issue.

you need a property release from the copyright holder of the building you shoot in if it's recognizeable and non-incidental.

Unknown about "property" that nobody holds the copyright for. I'd construct a very simple property release and get the puppy's owner to sign it if I wanted to be verrryyyy careful (and polite)

 

[Craig Gillette]

A release should be tailored to the job and potential future uses. You wouldn't expect a wedding party or someone coming in for Christmas card pictures to sign the same release (or maybe even any release) when compared to the release you use when you pay a model or trade time, etc., and the content of the pictures seems likely to have a variety of subsequent commercial uses available.

But if you are shooting "artistic nudes" (however you may choose to define art), adult content, etc., then the release would typically be very broadly crafted to cover all kinds of potential uses. But professional models, etc., also know and expect to get that kind of release language.

When it comes to releases, one size doesn't fit all.

That said, most people who read the very permissive releases - outside of the profession - would not sign one. I worked for an insurance company and we had a "no release" policy and did not require a release to close a case. Th ekind of release that the legal beagles would craft to close out a case is so draconian in feel and language that most people won't sign or will go get a lawyer to get advice. We told them that we wanted them to feel that should they find more damage, etc., that they could come back, not that they felt like they'd signed away all their rights forever. That starts the cash register bells ringing again. Had they already retained a lawyer, then they got the ugly release. Same here, if you presented a wedding party a draconian contract and release, even if they love you, most would consider getting legal advice. You don't want that either.

 

[Bucks son]

Work done for hire does not mean that you hired the
photographer to shoot your portrait.

I still don't grasp the reasoning behind that. Why should someone
who you pay, retain ownership of your property? If I hire a
builder to build me a house, he doesn't retain ownership or any
rights to it once he is paid. Why is a portrait any different?

If you hire a builder to build a house, you have a contract stating
that in return for $x the builder will give you a house. It has
nothing to do with intellectual property at all. The same applies
to portraits but there is also the added issue of intellectual
property.

That's the part that seems illogical to me. Just as the hired builder uses tools to build my house, the hired photographer uses tools (camera, lights, etc.) to make my portrait. The reference was made to blueprints for a house being similar to negatives from a portrait sitting.

Suppose that I design and make the blueprints for my house. All I need the builder for is to build the house. I therefore hold the intellectual rights to everything regarding my house.

Likewise, suppose I use my office for the setting for my portrait shoot, and also spec out every last detail to the photographer. All he needs to do is show up, place his camera where I tell him; place his lights where I tell him, and then simply focus and push a button. He's in and out in 10 minutes. All he did was use his tools to make a picture.

Why should that simple act of focusing and pushing a button grant him intellectual rights to the use of the negatives? Don't get me wrong, I'm not against the concept of intellectual rights. I firmly believe they have their rightful place. I just don't see legally why someone who is paid to do a job should hold any sort of rights once they are paid.

That's all...just my 2 cents.

If you buy a portrait package, you can sell the photos
included in it to whomever you like. What you lack is the legal
right to copy them. This obviously doesn't apply to the house
situation. You purchased a product in both situations but in the
portrait one, the purchase did not include the intellectual
property rights. Unless the contract states otherwise.

DIPics

 

[Bucks son]

I still don't grasp the reasoning behind that. Why should someone
who you pay, retain ownership of your property? If I hire a
builder to build me a house, he doesn't retain ownership or any
rights to it once he is paid. Why is a portrait any different?

Copyright and ownership are different.

You own the portrait , but not the right to make copies of that
portrait (except for personal use).

I just don't see why someone who is commissioned to do something should hold any rights once he successfully completes the commission and is paid in full. Person 'A' has $100 in his hand. Person 'B' has a product in his hand. When 'A' slips 'B' the $100, 'B' should relinquish all rights to said product.

I honestly think much of this intellectual property thing is the result of too many lawyers getting together and devising laws that sweeten the pot for them via their clients. Clients who would otherwise have been tickled pink to simply be paid one time for the work they performed.

Now some sheister lawyer comes along and says "You know, me and my colleagues are devising a law that gives you legal rights to the use of that product you were just paid to produce for as long as you live"..."Gee, that sounds swell".

You also own your own face - so while the photographer holds a
copyright to the image (he has a right to make copies), he cannot
profit from using those copies without your permission.

To me, it's a different situation if a photographer took photos of a model whom he hired and then set about offering them for sale to the public. In that case, the photographer should hold intellectual property rights, because he is selling a copy of his work. The buyer then owns that particular copy and can do with it as he sees fit, including setting it on fire in front of the photographer.

 

[dipics]

Work done for hire does not mean that you hired the
photographer to shoot your portrait.

I still don't grasp the reasoning behind that. Why should someone
who you pay, retain ownership of your property? If I hire a
builder to build me a house, he doesn't retain ownership or any
rights to it once he is paid. Why is a portrait any different?

If you hire a builder to build a house, you have a contract stating
that in return for $x the builder will give you a house. It has
nothing to do with intellectual property at all. The same applies
to portraits but there is also the added issue of intellectual
property.

That's the part that seems illogical to me. Just as the hired
builder uses tools to build my house, the hired photographer uses
tools (camera, lights, etc.) to make my portrait. The reference
was made to blueprints for a house being similar to negatives from
a portrait sitting.

Suppose that I design and make the blueprints for my house. All I
need the builder for is to build the house. I therefore hold the
intellectual rights to everything regarding my house.

Likewise, suppose I use my office for the setting for my portrait
shoot, and also spec out every last detail to the photographer.
All he needs to do is show up, place his camera where I tell him;
place his lights where I tell him, and then simply focus and push a
button. He's in and out in 10 minutes. All he did was use his
tools to make a picture.

Why should that simple act of focusing and pushing a button grant
him intellectual rights to the use of the negatives? Don't get me
wrong, I'm not against the concept of intellectual rights. I
firmly believe they have their rightful place. I just don't see
legally why someone who is paid to do a job should hold any sort of
rights once they are paid.

That's all...just my 2 cents.

The scenario that you painted is the very end of the possible "creative spectrum" for a photographer. IMHO, it is so far out on the end, that someone that actually hires a photographer for a shoot like that is a bit clueless. In most situations, there is considerably more "creativity" involved.

But, you and the photographer (or writer, or artist, or architect or whatever) are fully capable of entering contractual agreements that give you the copyright. It just isn't the default. The default is for the final product. As in the prints or the home etc. Not the creative process that went into it.

But, as I said, you can contract differently.

DIPics

 

[dipics]

I still don't grasp the reasoning behind that. Why should someone
who you pay, retain ownership of your property? If I hire a
builder to build me a house, he doesn't retain ownership or any
rights to it once he is paid. Why is a portrait any different?

Copyright and ownership are different.

You own the portrait , but not the right to make copies of that
portrait (except for personal use).

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

I honestly think much of this intellectual property thing is the
result of too many lawyers getting together and devising laws that
sweeten the pot for them via their clients. Clients who would
otherwise have been tickled pink to simply be paid one time for the
work they performed.

Now some sheister lawyer comes along and says "You know, me and my
colleagues are devising a law that gives you legal rights to the
use of that product you were just paid to produce for as long as
you live"..."Gee, that sounds swell".

Copyright and intellectual property, if the result of lawyers, isn't a new result. It is old enough to be in our Constitution.

DIPics

 

[dipics]

But, it seems that you do understand it, even if you disagree. You might visit http://www.copyright.gov for more information.

DIPics

 

[Jim Coffey]

Suppose that I design and make the blueprints for my house. All I
need the builder for is to build the house. I therefore hold the
intellectual rights to everything regarding my house.

Because you designed and made the blueprints, without an architect's help. You did everything. BTW, you don't own the IP to everything - fixtures, appliances, etc can all have their own separate IP, trademarks and trade dress that you don't own.

Likewise, suppose I use my office for the setting for my portrait
shoot, and also spec out every last detail to the photographer.
All he needs to do is show up, place his camera where I tell him;
place his lights where I tell him, and then simply focus and push a
button. He's in and out in 10 minutes. All he did was use his
tools to make a picture.

If you simply focused and pushed the button then you would own everything; but unless you stipulate you own the copyright the second the photographer presses the button they own the copyright - that is the way the law works.

If all it takers is 10 minutes and focusing and shooting then you don't need a photographer, do you?

Why should that simple act of focusing and pushing a button grant
him intellectual rights to the use of the negatives? Don't get me
wrong, I'm not against the concept of intellectual rights. I
firmly believe they have their rightful place. I just don't see
legally why someone who is paid to do a job should hold any sort of
rights once they are paid.

Because all you bought was the product, not the IP. You got exactly what you paid for. You want the IP you pay more and get it. They are separate transactions.

 

[Jim Coffey]

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

That depends on the agreement beteen the buyer and seller - and an agreement on price.

I honestly think much of this intellectual property thing is the
result of too many lawyers getting together and devising laws that
sweeten the pot for them via their clients. Clients who would
otherwise have been tickled pink to simply be paid one time for the
work they performed.

That's actually a Constitutional power given to the federal government.

 

[BorisK1]

I just don't see why someone who is commissioned to do something
should hold any rights once he successfully completes the
commission and is paid in full. Person 'A' has $100 in his hand.
Person 'B' has a product in his hand. When 'A' slips 'B' the
$100, 'B' should relinquish all rights to said product.

I honestly think much of this intellectual property thing is the
result of too many lawyers getting together and devising laws that
sweeten the pot for them via their clients. Clients who would
otherwise have been tickled pink to simply be paid one time for the
work they performed.

Now some sheister lawyer comes along and says "You know, me and my
colleagues are devising a law that gives you legal rights to the
use of that product you were just paid to produce for as long as
you live"..."Gee, that sounds swell".

Okay, you just changed gears. You're no longer arguing about what the law is , but about what it should be .

That's a totally different story.

But this is a very minor point. If you hire a photographer, and want to own the copyright to his work, all you have to do is agree on it ahead of time (and hopefully, put it in writing). The law only concerns the case when you didn't agree beforehead. So the law came up with a way to solve such disputes - by default, the copyright belongs to the creator.

According to you, then, the copyright should belong to the paying client, unless the contract states otherwise? Well, perhaps. I don't think this makes much difference either way.

The important part is to understand that owning a copy is different from owning a right to make copies . A client can buy both, a photographer is free to sell both - or only one of the two.

You also own your own face - so while the photographer holds a
copyright to the image (he has a right to make copies), he cannot
profit from using those copies without your permission.

To me, it's a different situation if a photographer took photos of
a model whom he hired and then set about offering them for sale to
the public. In that case, the photographer should hold
intellectual property rights, because he is selling a copy of his
work. The buyer then owns that particular copy and can do with it
as he sees fit, including setting it on fire in front of the
photographer.

Again - you're just talking about what should happen if the photographer and his client forgot to agree ahead of time on who gets the copyright. Which is, by the way, quite unprofessional.

Boris

 

[jugglervr]

if you designed the shoot to the last detail, you're the photographer.

Richard Avedon often has an assistant set up his shoots, pull focus, and trip the shutter, but they were doing what richard told them to do.

 

[jugglervr]

If you simply focused and pushed the button then you would own
everything; but unless you stipulate you own the copyright the
second the photographer presses the button they own the copyright

• that is the way the law works.

Not true. Suppose I have an assistent press the button; do they own the shot, even though I set it up? not hardly. they're just a camera operator.

Unless they're contracted as the photographer and as such have some input on how the shot looks.

If I work as a photographer, I exercise my knowledge to control the shoot, and I retain copyright. If I'm hired as a camera operator (it's been known to happen), I move the lights around according to what the client wants, I trip the shutter, and I go home. The pics don't look as good as they would if I'd been in control, but ah well, that's the price the client pays for putting on the photographer hat himself. and I get a stress-free days work out of it.