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Courts will decide whether you have the rights to your personal image
businessshrink.biz — If someone distributed a photo of you and gave away commercial rights and corporations started using it, do you have any rights to your photo? Courts will soon be making a decision on whether someone needs permission to use your photo for commercial purposes or not, even if protected by Creative Commons. Personal images are up for grabs!
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- robwilkens, on 10/16/2007, -4/+43Let's hope we retain the rights to our own pictures (including pictures of us taken by others).
- knomevol, on 10/10/2007, -6/+10let's hope we retain the constitution.
the fourth of the bill of rights: "The right of the people to be secure in their persons .... against unreasonable searches and seizures, shall not be violated...."
the thirteenth of the bill of rights: "Neither slavery nor involuntary servitude....shall exist within the United States...."- zweben, on 10/10/2007, -0/+6What!? Sorry, but having a picture taken of you in public is not 'unreasonable search and seizure', and if it was taken where you had a reasonable expectation of privacy, it was already illegal.
And... involuntary servitude? Wtf? I'm against the ability to use some's image for commercial purposes without their permission, but if you're going to argue against it, try to make some little shred of sense.
- zweben, on 10/10/2007, -0/+6What!? Sorry, but having a picture taken of you in public is not 'unreasonable search and seizure', and if it was taken where you had a reasonable expectation of privacy, it was already illegal.
- cliffzdude, on 10/10/2007, -0/+9Simple answer; A creative commons license should not trump the licensing rights of those in the picture.
Ultimate answer: Creative commons licensed photos clearly showing individuals should have a creative commons signed release form for those pictured, IF you are to use the photo for commercial purposes that is...- WilliamDavis, on 10/10/2007, -0/+2That's what I thought. If she never signed a model release, she can't be used in that way. I thought that was a matter of already written and easily understandable law, not something that needs to be tested in the courts. It's on Virgin Mobile to verify that they have legal release for models they use, so I don't see why they shouldn't be sued.
- cliffzdude, on 10/10/2007, -0/+6...sorry, but my thoughts congealed after editing expired. So, quickly; if creative commons ends up trumping individual rights, Using any celeb's image to advertise any product will be possible, so long as the image is creative commons. Big $$$ there, so I don't think it'll ever happen.
Otherwise:
Angelina Jolie advertising Pork Antibiotics.
Sean Penn advertising for the NRA.
Al Gore advertising for the Coal Industry.
Pam Anderson in ads for the Beef Council. - Nerys, on 10/10/2007, -1/+2I am sorry I can not fully agree with this. INTENT and FOCUS are critical. To me what decides this is well first if you gave permission knowing it would be commercial then no rights are violated.
If your IN a picture and its sold commercially I still do not think your rights are violated.
IF YOU are sold commercially THEN I think your rights should trump other conditions (unless it was contractual IE you knew and agreed)
SO what do I mean by this. I mean if YOU are inconsequential in the image in a crowd of people just a face somewhere in the shot your rights are not violated and you should have NO right to say what happens to that picture (short of libel and slander off course)
NOW if the picture is OF YOU and the surroundings are inconsequential or secondary to YOU then yes unless you agreed to it you should retain rights to how that picture is used commercially.
Does all that make sense? If your in a public place you have no expectation of privacy or security in your public visual image and rightly so. Image if we had to get permission from every visible identifiable face in the shots we took? can you say personal photography is dead (because off course government law enforcement would be exempt)
BUT if what they are selling is YOU and not just a "picture" ie if the lack of YOU (cut a hole in the picture) would ruin its value then YOU should have a say in its commercial usage. If your face is important but its one of many ie "faces" are important and not you specifically then no you should not have a right as to what happens to that picture (again not counting libel or slander etc..)
Thats my take on it and I hope its the courts take as well.
The only exception would be news reporting historical recordings and law enforcement but only if specific to a case or charge.- specialK16, on 10/10/2007, -1/+3IF, THEN, SO, NOW, YOU, BUT!
- fixedcoma, on 10/10/2007, -0/+1If not ,then let's take pictures of witness protection people too!!!!
- manageMyRights, on 10/10/2007, -0/+5Giving people 'rights' to images they appear in would make a ridiculous situation, similar to what exists with music and film. It would become impossible to use images in any commercial context because there would be too many people you have to clear it with.
Anyone with their face in the image could argue that they deserve a cut and it wouldn't be worth the problem to post any pictures with faces in them. Image hosts and social networking sites would be a big target of this type of litigation too, making it impossible to upload pictures with people to popular sites.
- knomevol, on 10/10/2007, -6/+10let's hope we retain the constitution.
- robwilkens, on 10/10/2007, -12/+4Let's hope we retain the rights to our own pictures (including pictures of us taken by others).
- Ihavethespeed, on 10/10/2007, -1/+1i was just thinking the same thing!
Dugg.
- Ihavethespeed, on 10/10/2007, -1/+1i was just thinking the same thing!
- Albionshores, on 10/11/2007, -2/+25I don't think it should be illegal to take photographs of someone, I do think that if that person expressly asks you to not do so and then you go ahead anyway then that should be legislated against. When it comes to using an image then I would be fine with it but on the understanding that if there are any financial gains from it then they belong to the person in the image, and if there are any political ramifications that that person does not agree with then that should be considered defamation.
Effectively if you want to use a photo or image of someone then you'd need to receive their consent or risk losing all gains made from the image. Human beings do this all the time in another form: sex. We're all perfectly aware of what we can and cannot be done and for the main part society muddles through with it's conventions without the need for policing. Not ok when forced or one way, ok when consent is given and mutual. I see photography as being if not the same then similar.
If the courts decide this is not the case then it would potentially serve as a free license to ruin careers or lives through intentional machination or even by accident. Imagine going to an interview and as you are about to walk into the building you see a billboard with your image on it advertising for a rival company. Imagine if you were a doctor and you then found out that a photo of you in looking ill from when you had salmonella is now being used as the face for an aids awareness charity. You might know you don't have aids, you might know that even if you did you wouldn't pose a threat to your patients. Your patients would still leave your surgery in droves though.
Control needs to be handed back to the individual, not more of it over to big business and corporation so they can make more profit at your unwilling expense.- wormeyman, on 10/10/2007, -0/+2You gave great examples but those are more likely to happen to people who pose for stock photos than for creative commons photography.
- Albionshores, on 10/10/2007, -1/+1I agree but who's to say what you will be or who you will become tomorrow. One day you might be a student the next established in business or profession. There is a real possibility of character assassination and where there is currently a legal precedent to protect you from that if the rights to your image can now have a line drawn through them then the precedent no longer stands. Essentially it is a narrowing of individual protection for potentially corporate and political gain. I realise I am addressing worse case scenarios -but worse case scenarios exist and need to be considered.
- wormeyman, on 10/10/2007, -0/+2You gave great examples but those are more likely to happen to people who pose for stock photos than for creative commons photography.
- Member148, on 10/11/2007, -0/+7I feel if the person knows that the site is licensed under Creative Commons, and they put their picture on the that site, then common sense tells you that you lose your protection of that image. If someone else takes the picture and puts it on the site and a company uses it, and makes a profit from it, then they should sue the person that uploaded it to the site without their permission. My question is in the case of Virgin does the picture make the profits or the product or service given by the company? You can have a picture of a beautiful woman on the billboard and the campaign can still fail by poor a inferior product or service. Does this mean that the woman can sue for embarrassing her in front of millions of people? In actuality no one knows where these pictures come from. They figure they are taken from company personnel or from professional models. I know that models get paid, but in the gamble the company may have to just write this off as a loss, if the promotion fails. The company doesn't sue the modeling agency, by blaming the model.
- Albionshores, on 10/10/2007, -1/+10Then they'd just conjure up an imaginary person with a very real e-mail address. Use that identity to poach any image they want, submit it to somewhere like Flickr, and the company operates unchallenged. It would be the third 'phantom' party who would remain aloof and to blame. Nobody to sue, no way of preventing your image from being used. The courts would be forced with the conundrum of whether the person submitted their own image under an assumed username and since changed their mind, whether it really was a third party, or whether it was a third party acting on behalf of the company with nothing to link the two.
Models have modelling contracts. Corporations have legal departments. But civil right tiger-pits in the form of such laws should not be allowed. You want to use an image for your business. Find the person in the photograph and offer them a contract. The idea that you waiver your rights before you know what you are waivering too is ridiculous. - diggydougie, on 10/10/2007, -1/+1Can the company sue the model for poor sales of their crappy product/service?
- Nerys, on 10/10/2007, -0/+1Hmm this is different (web site submissions) regardless of Terms of Service NO website should be allowed to legally use your likeness FOR ANY REASON commercial or otherwise without your EXPLICIT permission regardless of terms and without consequences. The penalty for violating this should be extreme to make sure companies do not think well I will just do it anyway and pay the fine or fight it. Any attempt to bypass this with terms of service should be instantly null void and non binding no matter how its worded. If you submit a picture to a website the LIMIT of the rights of the sight owner to that image should be only for the purpose of which you submitted it (and no implied consent crap) and search results history etc.. THATS IT. any usage not explicitly agreed to on an individual NON compulsory basis or that is not obvious (search history etc..) should be illegal.
- Albionshores, on 10/10/2007, -1/+10Then they'd just conjure up an imaginary person with a very real e-mail address. Use that identity to poach any image they want, submit it to somewhere like Flickr, and the company operates unchallenged. It would be the third 'phantom' party who would remain aloof and to blame. Nobody to sue, no way of preventing your image from being used. The courts would be forced with the conundrum of whether the person submitted their own image under an assumed username and since changed their mind, whether it really was a third party, or whether it was a third party acting on behalf of the company with nothing to link the two.
- AriaStar, on 10/11/2007, -3/+7If we retained all rights, then photographic evidence would be outlawed, and the president could ban all pictures of anything he's done, criminals can cry foul if caught on camera, etc.. IMO, if you're in a public place, bye-bye rights. However, if an image is used commercially, a percentage of the gains should be set aside for a set period of time to pay to the person in the image in the event that that person comes forward.
- Jacob, on 10/10/2007, -1/+2They shouldn't be allowed to be used for commercial reasons unless consent is given from all people in the picture. Just because you are walking down the street doesn't mean people should take your picture and use it for commercial reasons.
- Jacob, on 10/10/2007, -0/+5They shouldn't be allowed to be used for commercial reasons unless consent is given from all people in the picture. Just because you are walking down the street doesn't mean people should take your picture and use it for commercial reasons.
- Nerys, on 10/10/2007, -0/+2sure it does its public as long as the focus is not specifically any intentionally YOU then you should not enjoy such a right. Officials should have ZERO rights to privacy when it concerns there function in that official position.
- radu79, on 10/10/2007, -0/+3That expectation of privacy does not apply to public people. That's why you can sell tshirts of Bush as a monkey and stuff like that.
However, I think that people should own their own image, otherwise it's easy to abuse this (take a photo of someone you hate, and use it in all kind of 'creative' ways.0 - jeffness, on 10/10/2007, -0/+4being in public is not a tacit agreement to have your photo taken and exploited for commercial purpose. If a photo is used for commercial purposes, a model contract must be signed by the subject for it to be used legally in a commercial application.
i think you're right to worry about restrictions, but i think it's more important to protect personality rights and embolden fair use of copyrighted media. fair-use allows me to use a picture that is copyrighted in a way that allows me to talk about the subject. it doesn't allow me to trodden over copyright law and if i misapply fair use, i am liable.
- TrainingName, on 10/10/2007, -8/+51984.
- tehbored, on 10/10/2007, -1/+2Wtf? What the hell kind of comment was that?! First of all, I assume you are referring to the novel, Nineteen-Eighty-Four and somehow believe this situation is similar to the book or something? How? It bears no relevance whatsoever! You might as well got around posting random four digit numbers! Buried.
- Shogi, on 10/10/2007, -0/+1Ooo, another ***** retard that likes to make out of place references in a pathetic attempt to label the US as a police state.
It almost never gets old.
- sfpfc, on 10/11/2007, -2/+6http://commercial-archive.com/node/139985
this was pretty cheap what virgin did- Nerys, on 10/10/2007, -0/+2THAT should be forbidden. its a use the owner clearly did not anticipate or agree to. and she is SPECIFICALLY the target in that photo her presence is not incidental. on top of that they did not even take it.
- pianonotes1010, on 10/10/2007, -10/+8***** this. My pictures, my rights, my decision. Get the ***** bent.
- Ouze, on 10/10/2007, -3/+9Why do people digg random angry profanity rather then thoughtful insights that improve the discussion?
- djheini, on 10/10/2007, -1/+4Does "my picture" in your sentence mean you are the person in the picture, or you took the picture? Depending on which you choose, your statement can be used for either side of the argument.
- manageMyRights, on 10/10/2007, -0/+1If you mean the photographer then you've pretty much summed up the current law.
- jikai55, on 10/10/2007, -0/+12"Oh, I'm sorry sir, you need a new drivers license...your picture is owned by various corporations now. "
- Ouze, on 10/10/2007, -0/+3as our laws stand now, I'm not sure if the young lady, who was the subject of the photo, has any standing to bring litigation against Virgin. Frankly I think the lawsuit circle would actually be the photographer suing virgin... and the young lady suing the photographer for misappropriation of her image.
- jeffness, on 10/10/2007, -0/+3i believe that the liability in this case lies with virgin because they used the image commercially without completely vetting it. As a commercial interest, the hubris lies on them to absolutely ensure the personality rights of the subject are secured in writing.
- radu79, on 10/10/2007, -1/+3The photographer can't sue Virgin, because he released the photo in a license that allows what Virgin did.
- cranium, on 10/11/2007, -0/+7Get a copyright symbol tattooed on your forehead. That'll show 'em.
- HerrEisenheim, on 10/10/2007, -2/+3Gentlemen...BEHOLD! Facebook. The new source for stock photos. Your pictures, our revenue. They are sitting on a freakin' goldmine. I guess that's why it's worth elevendybillion dollars.
- insanepandas, on 10/10/2007, -0/+1Facebook has privacy controls. Everybody should use them.
- Urusai, on 10/10/2007, -4/+5It's real simple. Your presence in public means your image is public, and pictures taken of you publicly are fair game. Now, if your image is used in a way such that it appears that you endorse a product or otherwise seem to be defamed, then you should have legal recourse under standard civil law.
One of the big problems of the last half-century has been the complete gutting of common law. We used to have a legal basis for deciding these issues, people, but thanks to Republicans attempting to criminalize or codify every particular, we have a system of law handed down from on high by corrupt idiots voted in by stupid morons, rather than one hashed out over centuries of learned jurisprudence and trial and error (pardon the pun).- jeffness, on 10/10/2007, -0/+4sorry pal, you're wrong. rights of publicity is a developing area of law and nothing is cut and dry. New technology changes the world; common law had no provisions for anything like the right of publicity and our courts are simply extending the right of privacy to include pictures of oneself.
being in public certainly opens you up to a photograph of yourself, but simply being in public is not a tacit agreement to the commercial exploit of your image! - Bklynadam, on 10/10/2007, -0/+3civil law and common law are two different systems
- Nerys, on 10/10/2007, -0/+1Your right but bout the wrong issue. its not whether you picture can be taken. its not about whether those images can be used commercially (off course they can) its about whether your explicit likeness can be used WITHOUT your consent. a picture of a street corner that you happen to BE on you should have NO say over. a picture of YOU specifically and intentionally (whether planned or not) is different. NOW if they are reporting news ON YOU specifically then thats different and the 1st amendment of the photographer (commercial or not) trumps your 4th amendment rights.
IF YOU are not the target ie this is not ABOUT Chris Taylor Jr but I blow up or intentionally focus on your face for some generic not about me specifically commercial purpose thats different. if its news its ok. if its historical its ok. if its just to profit thats NOT ok since my 4th amendment rights should trump your non existent right to profit.
If I submit a picture to you for a non commercial purpose (and no terms agreements should not count) then you should have NO right to use that picture for any other purpose except for the REASON I submitted it and NO implied consent. ONLY explicit individual NON COMPULSORY (saying you can not join unless you agree is compulsory) agreement.
- jeffness, on 10/10/2007, -0/+4sorry pal, you're wrong. rights of publicity is a developing area of law and nothing is cut and dry. New technology changes the world; common law had no provisions for anything like the right of publicity and our courts are simply extending the right of privacy to include pictures of oneself.
- Jennyd6, on 10/10/2007, -6/+2Urusai is correct. If you are in public, your image is public. The next time you purchase a ticket to an event, look at the fine print. You agree to allow your image to be recorded and used in another context. The words may change, but the meaning remains the same. We legally permit companies to use our faces/images without giving it a second thought. Unfortunately, we do not have choice in the matter if we want to live our lives like everyone else. However, maybe this court will change all that.
- jeffness, on 10/10/2007, -1/+6WRONG. Being in public is not an agreement to allow commercial license of your likeness. Like you said, though, your concert ticket says that you are. THAT is in agreement. That is a contract. I do not need a ticket, nor do i sign a contract , to walk around in public.
Do not be blase about giving up your rights! please!
- jeffness, on 10/10/2007, -1/+6WRONG. Being in public is not an agreement to allow commercial license of your likeness. Like you said, though, your concert ticket says that you are. THAT is in agreement. That is a contract. I do not need a ticket, nor do i sign a contract , to walk around in public.
- weirdralph, on 10/11/2007, -0/+4Given that everyone who enters a public place will soon have their likeness available to just about anyone with a computer, the question will probably become more one of how the images are used. For example, if I step out into Times Square and Virgin Mobile pulls a screen grab of me from a security camera (or whatever) and uses my image in a crowd shot, then I probably won't have much room to complain. If they single me out and use my specific image in an ad, then perhaps I've got room to force them to pay me royalties. If they single me out, alter my image to show me killing puppies and use that in an ad, then I've definitely got a case against them.
Obviously it's going to take a while to hammer out the particulars on it though.- jeffness, on 10/10/2007, -0/+2incidental inclusion is a fair-use clause and a non issue.
- diggydougie, on 10/11/2007, -1/+4This is why I never use those free picture hosting services, or youtube. The rules always state that you have no further rights to the material. So if I even took a picture of a butterfly on a flower, and some company made a lot of money from my picture, I have no rights to it.
- hifiDesign, on 10/10/2007, -0/+1Flickr is a pay service, Dougie. It offers limited image hosting for free, but by-and-large, a lot of us pay to use it. That has no bearing on whether this was legal however.
- Quicksilver801, on 10/11/2007, -2/+6I doubt this girl will win against virgin because they are in the right. They used an image that was to there knowledge public and able to be used for commercial gain. That's the photographers fault for making it that way.
The girl could sue the photographer for putting the image up with the open license without consent though. Then there is the whole issue of her being underage. A whole new can of worms.
THE LAW NOW
I can take a picture of you in public and do whatever I want with it (to a degree) as long as it is not used for commercial purposes. Anything in public or that can be seen from a public place is fair game even if I am told to stop. If i take a picture of you and you tell me no I dont have to but it would be common courtesy.
If i am on private property I do not have the same rights. If i take pictures of you and then are told to erase them I have to under the law.
If i use a public image for commercial gain I have to have prior permission from the individuals or else i could get sued.
I like the rules how they are now. I hope they stay that way- jeffness, on 10/10/2007, -0/+2Your rules as stated are correct, but please I think it's important to state that pictures of a person taken in a public setting are more restrictive than just commercial usage or not. non-commercial usage can still (possibly) violate fair-use laws. Your only right to utilize an image of someone taken in public is granted through fair-use and nothing else.
- Nerys, on 10/10/2007, -0/+1Your both off. This is not her in public place and virgin took a picture. this is a picture she SUBMITTED and they then TOOK it for another purpose she NEVER intended. Terms and conditions should not be permitted to be used to permit this under any conditions.
- jeffness, on 10/10/2007, -0/+2Your rules as stated are correct, but please I think it's important to state that pictures of a person taken in a public setting are more restrictive than just commercial usage or not. non-commercial usage can still (possibly) violate fair-use laws. Your only right to utilize an image of someone taken in public is granted through fair-use and nothing else.
- yndy, on 10/11/2007, -0/+3The biggest problem here is that amateur photographers don't want to have to get releases every time they take a picture... but professional photographers tend to have better ethics.
Unfortunately, there are some assholes like the guys at Virgin who'd rather make money without having to compensate the person they're making it off of.
Seriously - it would've taken how long to either get a release from the sister or to stage your own damn picture of the same thing?
Commercial use without permission of the subject - whether by release on the back of a concert ticket, or specifically presented to the individual - should be a requirement. If you take pictures of a model for a catalog, the model gets paid and gives consent. It's only fair that the average person gets the same benefit. - skyz, on 10/10/2007, -0/+2models have to sign a release form before their pictures can be used and they get paid ~ you can't decide someone is going to be your model and just access an image AND not pay them ~ i never put my pic on the net anyway ~ too many crazies
- LordBalderdash, on 10/10/2007, -0/+9the law already exists. it's called 'right of publicity'. no one can use your image for commercial use without your permission.
that's precisely why virgin will either settle out of court or lose this case. in the case of a minor the photographer is required to have written parental approval. it does not matter in the least that the photographer released all rights to the image, he could not legally release the girls right of publicity without legal written consent from her parents. virgin's argument on what creative commons entitles them to is wholly irrelevant, this case goes beyond creative commons licenses.
- jeffness, on 10/10/2007, -0/+3Hooray! nice post!
- hifiDesign, on 10/10/2007, -0/+1Agreed, finally someone with his head NOT rectally impacted.
- jeffness, on 10/10/2007, -0/+11okay, first of all, the topic is very misleading. This court case will likely not redefine anything. Copyright, personality rights and fair use law are an area of enormous misunderstanding on the internet for numerous reasons. A large reason for the misunderstanding is that personality rights continue to evolve in our courts. Personality rights are an extension of privacies ensured us by the constitution and by common law dating back to the middle ages. Modern times have introduced technology and concepts that inherently intrude upon our privacy and now cause conflict where before there was none.
First off, Virgin will lose this case. As a commercial entity, it is their duty to ensure that source material is appropriately licensed. The decision will be thus: Would a reasonable person believe an image to be properly licensed? A reasonable person would be correct in assuming images purchased from a stock photography company would be properly licensed. However, in the case of taking an image from flickr, a serious misstep of judgment has ocurred. Firstly, the person understands licensing and knows that images must be licensed for commercial use for them to use it. If this person is smart enough to know that, then they are also smart enough to know better than to use a random photo from an untrusted source like flickr.
The second thing I want to address is that I am absolutely shocked by the lack of concern some people are showing regarding personality rights. Just because you are in public does not entitle random photographers to the exploit of your image for gain. I don't care what some photography blog says, if you take a picture of a person, you do not have the tacit agreement of the person in the photo. You have not secured their agreement without a modeling contract to use their image.
Now, this is where fair-use steps in and protects the use of image. Fair use has many subtleties that ensure that despite not having secured a modeling contract, still allows the photographer, or agents thereof, use of the image in a "fair" way. Generaly, this covers incidental inclusion (person in a crowd) and use of picture for comment on the subject (that's why paparazzi photos are still OK, because they are published to comment on the subject, not because some photographer owns the image).
People, it's important to stand up for your rights. This is a slippery slope. Do not become nonchalant about your constitutional right to privacy disappearing. Being in public does not subject you to exploit, nor does it allow you to exploit those in public.- cymbol, on 10/10/2007, -0/+1I am very interested in the copyright laws concerning this area, and hope maybe you - in general - could answer some of my questions. After reading the comments on this page a few others, it is my understanding that.
1. If a photographer takes my picture, the photographer owns the copyrights to those photos, and no one is allowed to make copies or distribute that photo without the permission of the photographer.
2. However, I own the publicity rights, and the photographer cannot make commercial use of that photograph without my permission.
So far correct?
What happens when I commission a photograph? Say in the case of a wedding photo. I read that the photographer still retains the rights to the photos even though you specifically paid for the creation of that work in the first place. Doesn't it sound a bit like double - or triple, quadruple, etc.- charging for you? You have paid for the picture to be taken, and you will have to pay each time you want the picture to be printed?
In some states, the right of publicity is a property right, like a patent. And I read this from the wiki.
[quote] It is common in the United States for inventors to assign their ownership rights to a corporate entity. Inventors that work for a corporation, for example, often are required to assign their ownership rights to their corporation as a condition of their employment[/quote]
Didn't playwrights and composers sell the rights to their work and not just a copy of them?
Can I stipulate at hiring that the photographer for my wedding to turn over all rights of photos created thereof? If so, how would I draft a document like this?- jeffness, on 10/10/2007, -0/+3I'm pretty sure you're right about your first 2 points. A good way to look at it is that copyright and right to license are two wholly separate issues. I can take a photo of someone. I am the creator and copyright is imbued at creation. But having that photo (and having the copyright of it) does not grant me any rights beyond that because what is contained in that image is governed by other laws.
This gets very complicated. For instance, did you know that photographs of substantially artistic works (i.e. statues and even pop cans with art work on them) also are inelligable to be licensed by the photographer? This is a whole class of disqualified fair use called "derivative works".
No matter what, to have the right to license, I would have to enter into a contract (model release) with the subject. If the subject is an inanimate piece of art, I would need permission from the sculptor or painter or company that has had those rights transferred to them by the sculptor or painter.
And this is a great lead in to a concept called work-for-hire. Contracts are a wonderful thing -- you can stipulate anything in them and it is binding (to a certain extent, of course, a contract cannott bind you to violating existing law). If you commission a work, the terms of that contract are entirely up to the 2 agreeing parties. The creator can indeed include a clause that states all rights to the work remain with him, but most intelligent people commissioning an art work (especially in the case of advertisement and branding, i.e. professional work) will absolutely insist that there be no rights remaining with the creator and craft the contract in such a way to ensure that. In effect, yes, it's just like assigning patents to someone else. It's not much different.
So, yes, you can stipulate in the contract that ensures that all rights are turned over to you. Most states default it this way under "work for hire" laws and the only thing that changes it is the photographer or artist creating a contract to change the terms. An inventor could do this with their own patents.
- jeffness, on 10/10/2007, -0/+3I'm pretty sure you're right about your first 2 points. A good way to look at it is that copyright and right to license are two wholly separate issues. I can take a photo of someone. I am the creator and copyright is imbued at creation. But having that photo (and having the copyright of it) does not grant me any rights beyond that because what is contained in that image is governed by other laws.
- cymbol, on 10/10/2007, -0/+1I am very interested in the copyright laws concerning this area, and hope maybe you - in general - could answer some of my questions. After reading the comments on this page a few others, it is my understanding that.
- Velnich, on 10/10/2007, -0/+2This is scary. I don't think I'd feel safe using flickr after this. Some might laugh, but think how this effects the model/actor industry. Even more jobs lost because businesses could cut corners and steal someone's vacation photo's instead of hiring people (the model, the photographer, make up artist, etc...........) to take a photo specifically for an ad.
- brbubba, on 10/10/2007, -0/+2"I doubt this girl will win against virgin because they are in the right. They used an image that was to there knowledge public and able to be used for commercial gain. That's the photographers fault for making it that way.
The girl could sue the photographer for putting the image up with the open license without consent though. Then there is the whole issue of her being underage. A whole new can of worms."
Just because an author posts a picture of someone else and makes it a free commercial use license doesn't suddenly make you free of all blame. Case in point, you are a publishing house and you pick up a new author who just so happens to be the world's worst plagiarizer. Sure you blame the author for screwing up, but you also blame the publishing house for not showing some due diligence in hunting down his sources. And, at the end of the day the publishing house is going to be the one defending their asses in a lawsuit.
Bottom line is this, any responsible party would have, at the very least, contacted the originating photographer for written confirmation of the photograph's status. Just because something may be listed as in the public domain doesn't suddenly mean that you are off the hook. Assuming that Virgin made no attempts to contact the parties involved, as I suspect happened, it seems fairly obvious that they showed a blatant negligence in ascertaining the validity of the photograph's status and are subsequently responsible for paying a usage fee to the female involved. Of course I don't see how that usage fee could ever rival any lawyer's fees incurred, unless of course this female is suing for damages claiming some kind of tarnishing of her image. - Firehed, on 10/10/2007, -0/+2I just applied to iStockPhoto, and this is one thing they have a pretty strict policy on - if someone's face is visible in the image (or there's a child, period), you need their express written permission for the submission to be even considered. Since iStock then takes your submitted images and resells them for commercial use, it seems a reasonable policy. If this is to become a widely accepted policy for commercial advertising, it would seem quite fair to all parties. If you want to use someone's picture commercially, get their written permission. If they won't give it to you, there are dozens of others who will. If the photographer then gets rich off of your picture and you want a cut, you've got a written record of what you originally agreed to.
- crazybugger, on 10/10/2007, -1/+1goatse!
- yojiffyskippy, on 10/10/2007, -0/+2That IS insulting! Claiming that she has friends!
- grebekel, on 10/10/2007, -1/+0Imagine the damage to all those cheap celebrity gossip magazines, they won't be able to use any pictures until they get signed off by the celebrities themselves. Heh
- mnederlanden, on 10/10/2007, -1/+0Even if she does not have case regarding the rights to the image, should could probably still sue virgin in a defamation lawsuit.
- Corinthos, on 10/10/2007, -1/+1My friend got his High school photos taken his senior year 4 years ago. There is still is a kiosk in the mall with his picture on it and it pisses him off every time he walks past. The place where he took it just decided to use it for whatever they wanted.
- hifiDesign, on 10/10/2007, -0/+1At those arguing that Virgin was in the right:
It wasn't that Alison Chang happened to be in public and her picture happened to be taken — a friend took her picture with the intent of doing so (and so she had knowledge of the act for that expressed purpose). Then he put in on Flickr, and placed Creative Commons restrictions on it (ostensibly he had blanket CC applied to all of his images). Under US law, this digital art is copyrighted material and cannot be used without permission, even without the CC license.
It is wholly unacceptable for some lazy-ass designer to snag images from Flickr or Google to use in commercial work. If corporations (or individuals) become legally allowed to do this, it becomes just as acceptable for anyone to download and re-broadcast music without paying for it, steal fonts without paying, and use unlicensed versions of software. The whole thing falls apart and the logic just isn't there.
Not only that, despite that picture being on Flickr, it is a violation of some level of privacy this girl is entitled to (AGAIN – this was NOT a "public picture" in the sense that she was walking by and happened to have her picture taken). If she is a minor, that is an even bigger violation of the law. Anyone seeking to use images in the manner that Virgin did has to have some kind of acknowleged model waiver that the person in the image consented to it being distributed — all the stock image houses abide by this and most companies not relying on hack designers have legal teams that also know this. Virgin was wrong and there are no two ways about it. - maz2331, on 10/10/2007, -0/+1The photographer who licensed the image is the liable party here. I hate to defend Virgin on this, but they acted in reliance of HIS license, which is an absolute guarantee that he had rights to the image.
Very simple case. Photographer was negligent. Both the girl and Virgin should sue him for misrepresentation and/or negligence. I seriously doubt any judge is going to entertain any arguments to the contrary.
And... it's pretty well settled that images taken in public are fair game for just about any use. There's no reasonable expectation of privacy in public. - momonami, on 10/10/2007, -0/+0screw that you shouldn't be allowed to use someone's picture for ads, unless you pay them. Thats why they are models, if I can be a model and they want to use my picture sthey should contact me after seeing my pics not taking them and putting them up on ads.
- ModelsPhotos, on 10/26/2007, -0/+0I believe that Models should have equal rights to there photos. As it stands right now here in the USA any Photographer can sell a Models picture or license without compensating that Model. All they have to do is get a Model Release form. It is called a TFP or TFCD. The only other person who can own the copyright is a Business that hired the Photographer and or Model. This is great for Photographers and Businesses if they want to make money off of the Models pictures but because the Model is asked to sign there rights away and unless they have some other arrangement made to get rights they themselves can not sell or license there own photo. This is really disparaging because I offer to license photographs and pay equally to the Model and Photographer because I believe it is a mutually created work. No matter how many Models want to License and make money they can not because the Photographer owns the copyright and is not too interested in helping the Model. Even though I pay better then any stock photo place that photographers currently use they would rather use those images and sell them to stock photo places because they won't have to compensate the Model. This is why they call it exploit. The way things are going, I just might have to go through a stock photo agency for pictures and isn't that sad when both the Model and Photographer could be a money making team.
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