A few months ago I did a photo session for a large family. There were four little girls who's grandmother had purchased them all matching outfits from a children's specialty boutique. A couple weeks ago it was brought to my attention by one of the mother's of those little girls that the owner of the boutique contacted the grandmother who purchased the outfits and asked if she could use one of the images from the photos session to display on her website for advertising.
The image was not watermarked because it was on a CD that one of the family members had purchased from me. So, what are my rights concerning the use of my image to promote their merchandise? Am I not entitled to some kind of payment from the boutique? Thanks!
Would that not depend on the specifics of the contract / agreement you signed with the family? Assuming your contract includes transfer of rights associated with the photos - then you really aren't entitled to anything. I would suggest starting by reading your agreement in detail.
@laburgett As Ross said it certainly depends on the contract, however you should be entitled to accreditation either way, something like photo by Leah Biscuits* with a link to your website or some such.
*It just said B so I made up a name, clearly the reasonable option :p
@rossco088@killerjackalope In response to the contract\agreement, I didn't have them sign one. Of course they had my permission to copy the prints off the disc, but I had no idea that those images would be used on the home page of someone's website to promote their business...lesson learned! I didn't realize that I needed to have someone sign an agreement for a simple family shoot. That being said, am I just out of luck?
@laburgett - is it reasonable to assume that you would give rights to them to allow for some sort of advertising without making money on the photo itself? For example, with out having read the rights/terms of service in some time, I would imagine 365 reserves the rights to use your photos in its advertising. Similar situation. Ross won't make money off your photos, but can use them to promote the site.
Facebook does the same. I guess you don't want them using your photos to advertise. You could ask them to stop....I suppose.
365 Project reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on the http://365project.org/ website and other communication with existing or potential 365 Project customers. To decline 365 Project this right you need to email ross@365project.org stating that you do not wish to be used as a reference.
Reread the above (in the ToS). Rights are different than using the images.
We will only use your images on this site. If you are lucky your photos may be featured on the 365 Project blog or newsletter (we do top 20 lists and things like that) the image will always be accompanied with a link back and full credit to the original work.
And here he clearly states that they will only be used on the site. I don't run a business myself. But reading other ToS would be a good place to start when starting your own.
Without a contract you will really need to build a case that the rights and privledges associated with the photos was not passed to the clients when you provided the disc. My own two cents (not a lawyer) would be that by giving them unwatermarked photos in an electronci form you may have conveyed them, and if thats the case you are not entitled to anything.....although you could build a case the other way as well.
Simple rule of thumb - if your are selling a service, make sure you have an agreement laying out exactly what you are selling. Without a contract you may be "hooped".
Maybe another way to look, what would be the impact of pursuing this?
You might get some money for the photos used in the ads, but you might also generate a lot of negative press and loose out on new jobs.
I'd say that you are most deffinately allowed some kind of payment, advertising photography is much more expensive to start with!
The photo's you did were for a family portrait shoot? Then that is all they should be used for - personal use. That doesnt include advertising.. The only time people can use your pics without your consent is when you waiver your copyright, and I bet you didnt!
You may upset a few people but its up to you really..
I did a shoot years back for a PR company who needed a pilot shot for their inhouse magazine. They then gave my pictures to a newspaper without my persmission. I insisted on payment because they hadnt asked and it wasnt part of the deal - nothing was in writing, but I got the payment without much of a fight.
Pretty much what everyone has said above (@rossco088) it all comes down to your contract. But there is one other thing to consider: work for hire. You need to check with your local state government to see if your state is considered work for hire, which means that by default when you are hired to do a photo shoot the person who hires you automatically owns all rights to your photos. Unless otherwise stated.
My biggest suggestion would be to never, ever give a CD with high-resolution photos to a client. When I shoot portraits, they have the option of purchasing all their prints through my website. I do packages as well as single prints. When you give them a CD with high-res photos there is no telling what they will do with those photos.
I leave two options for photos on CD's for my clients. They can have web-ready, watermarked photos on a CD for use in online photo albums, Facebook, Flickr, and other sites for their own use. Or, they can purchase the copyright to photos so they can have high-res, but since I'm giving up the copyright I charge a lot of money for that.
@jasonbarnette I don't foresee running into this problem in future because of the fact that a couple months back I quit offering a CD of all the high resolution images with a basic portrait session. I now offer single digital downloads, and a CD at a much higher price, and of course print collections. I'll need to look into what my state's work for hire law states. Thanks for the info :)
@blightygal You're right, I of course did NOT waive my copyright. Had the owner of the boutique contacted me, the photographer, and not my client, I probably would have had no problem letting them use a watermarked image of mine, to help promote my business as well. I've done some advertising photos for other boutiques, but of course they paid me and all the images I gave them were watermarked. guess I just feel a little cheated, seeing as their getting free advertising.
you probably are not going to get payment, at the very least you can ask them to either credit your photo to your photography and link to your website, or tell them to take it down.
if you are handing over any CD's, you need to include a Limited Copyright Release ~ limited means you still own the copyright but you are granting them permission to print for their personal use...that way they cannot sell the images for their profit...here is a clip from my document "...to reproduce these images solely for the purpose of personal use such as prints from home printer, screen savers on home computer, or prints from lab of choice (Photography by Ro is not responsible for variations in quality of prints if you choose to print elsewhere). All other rights are reserved (they are not permitted on the internet or publications without permission). The images are not to be altered in any way other than by the creator." you need to be specific and you should also have the conversation with your client when you give them the disc. and I agree with the person above, you should give them another disc of low res watermarked if they want to use on the internet. its very hard to police. that is why if you establish a good relationship with your client and have the face to face conversation and explain to them your concerns, why you don't want them on the internet without your credit, etc...usually they will respect that.
good luck!!
@laburgett Why dont you explain to them that the people who supplied the image dont own copyright - you do? They arent allowed, its stealing - at least thats as far as I know in the UK is the law. I have no idea if its different in the USA, but I just cant see how they think they can get away with it! If it were to go to court here, you'd win. Just because you didnt sign a contract with the family photoshoot doesnt mean you lost copyright - you took the photos!
Why not goto the store, mention you are the photographer and ask them if they would be interested in hiring you for work... There was a little store near my office that used to have a photog poster up... something like save 15% if you book with this photog for buying these fancy cloths... if anything good comes up... ask the models if they would mind using the photos in ads, collect your fee from the store... everyone wins...
OR!!!
IF you are an ass like me... I would walk into the store... pick up something right in front of the owner and walk out... something big and pricy... when they stop you.. say "Oh well you borrowed from me, I thought it was all ok, so I would just 'borrow' something from you, don't worry, I'll tell everyone I got it here!"
I totally agree with what has been said in this thread: approach the store owner and see what you can get from him or her. And I agree with Freida: the use of the picture has been turned into something other than it was originally intended for. Good luck in sorting this out. I hope they come to see they acted wrongly.
Just to make you feel better: I encounter this sort of behaviour all the time. I am very protective of my work, even though I do not make any money off it (or not yet). I send pictures to friends and family and they pop up all over Facebook, which really upsets me, because I hardly upload any pictures to Facebook, because of their sketchy terms... I also got burned with picture taking just like you, taking pictures with my camera for work (using them for my work area for marketing purposes, which means I had total control of when and where they were placed), and only way later (= when everyone, including bosses, started to ask me to take pictures for them) realized that I was losing all rights to my pictures and they could do with them whatever the hell they wanted (including putting them on Facebook for marketing purposes of the entire company, etc). That really upset me and I won't be taking any pictures for work until I negotiate some other written agreement with them, that guarantees either payment or I keep the copyright and complete control over their use.
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*It just said B so I made up a name, clearly the reasonable option :p
Facebook does the same. I guess you don't want them using your photos to advertise. You could ask them to stop....I suppose.
Time to have agreements made up. :(
I just look at the ToS and it says
"You do not give up any rights to your own images when uploading to 365 Project"
365 Project reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on the http://365project.org/ website and other communication with existing or potential 365 Project customers. To decline 365 Project this right you need to email ross@365project.org stating that you do not wish to be used as a reference.
Reread the above (in the ToS). Rights are different than using the images.
We will only use your images on this site. If you are lucky your photos may be featured on the 365 Project blog or newsletter (we do top 20 lists and things like that) the image will always be accompanied with a link back and full credit to the original work.
And here he clearly states that they will only be used on the site. I don't run a business myself. But reading other ToS would be a good place to start when starting your own.
Simple rule of thumb - if your are selling a service, make sure you have an agreement laying out exactly what you are selling. Without a contract you may be "hooped".
Maybe another way to look, what would be the impact of pursuing this?
You might get some money for the photos used in the ads, but you might also generate a lot of negative press and loose out on new jobs.
The photo's you did were for a family portrait shoot? Then that is all they should be used for - personal use. That doesnt include advertising.. The only time people can use your pics without your consent is when you waiver your copyright, and I bet you didnt!
You may upset a few people but its up to you really..
I did a shoot years back for a PR company who needed a pilot shot for their inhouse magazine. They then gave my pictures to a newspaper without my persmission. I insisted on payment because they hadnt asked and it wasnt part of the deal - nothing was in writing, but I got the payment without much of a fight.
My biggest suggestion would be to never, ever give a CD with high-resolution photos to a client. When I shoot portraits, they have the option of purchasing all their prints through my website. I do packages as well as single prints. When you give them a CD with high-res photos there is no telling what they will do with those photos.
I leave two options for photos on CD's for my clients. They can have web-ready, watermarked photos on a CD for use in online photo albums, Facebook, Flickr, and other sites for their own use. Or, they can purchase the copyright to photos so they can have high-res, but since I'm giving up the copyright I charge a lot of money for that.
if you are handing over any CD's, you need to include a Limited Copyright Release ~ limited means you still own the copyright but you are granting them permission to print for their personal use...that way they cannot sell the images for their profit...here is a clip from my document "...to reproduce these images solely for the purpose of personal use such as prints from home printer, screen savers on home computer, or prints from lab of choice (Photography by Ro is not responsible for variations in quality of prints if you choose to print elsewhere). All other rights are reserved (they are not permitted on the internet or publications without permission). The images are not to be altered in any way other than by the creator." you need to be specific and you should also have the conversation with your client when you give them the disc. and I agree with the person above, you should give them another disc of low res watermarked if they want to use on the internet. its very hard to police. that is why if you establish a good relationship with your client and have the face to face conversation and explain to them your concerns, why you don't want them on the internet without your credit, etc...usually they will respect that.
good luck!!
OR!!!
IF you are an ass like me... I would walk into the store... pick up something right in front of the owner and walk out... something big and pricy... when they stop you.. say "Oh well you borrowed from me, I thought it was all ok, so I would just 'borrow' something from you, don't worry, I'll tell everyone I got it here!"
Just to make you feel better: I encounter this sort of behaviour all the time. I am very protective of my work, even though I do not make any money off it (or not yet). I send pictures to friends and family and they pop up all over Facebook, which really upsets me, because I hardly upload any pictures to Facebook, because of their sketchy terms... I also got burned with picture taking just like you, taking pictures with my camera for work (using them for my work area for marketing purposes, which means I had total control of when and where they were placed), and only way later (= when everyone, including bosses, started to ask me to take pictures for them) realized that I was losing all rights to my pictures and they could do with them whatever the hell they wanted (including putting them on Facebook for marketing purposes of the entire company, etc). That really upset me and I won't be taking any pictures for work until I negotiate some other written agreement with them, that guarantees either payment or I keep the copyright and complete control over their use.