pancakes

MicrostockGroup Sponsors


Author Topic: Photographers Bill of rights in Microstock - YA, Legal Problems  (Read 17061 times)

0 Members and 1 Guest are viewing this topic.

Yuri_Arcurs

  • One Crazy PhotoManic MadPerson
« on: February 05, 2009, 03:49 »
0
As the photographers are getting better and more proff, the agencies stay the same. I am facing constant problems in working with professional models and their agencies, because of lack of proper user right restrictions and legal follow-up.

Just this other day, some German newly started blog, had taken a picture of Cecilie and called her Heidi or so, claimed she was 31 years old, had two kids, had a couple personal problems and spoken on behalf of her as if she was writing this blog herself. She apparently endorsed the product they where trying to sell!. This kind of "identity theft" if one of the things that causes my business the most problems. I have lost two good models on this account, that now will not do stock anymore and I have jeopardized my working relation with lots of model agencies

I suggest that we stand together on a set of "bill of rights"


Uploading.
Simplified uploading system where images do not need to be processed individually, but properties can be batch applied, such as model releases, keywords, categories, etc.

Restrictions.
User rights restricting basic abuse of images, so it is possible to work with professional models and model agencies.

1. Identity theft. Calling the model a new name, speaking on behalf of the model. Assigning properties to the model, such as "has two kids", "lives in Germany" etc.

2. Usage where the model is used in a fashion that is defamatory, political, racist or phornographic or in relation to such content.

Legal follow-up or the capacity to do so.
The agency must have legal resources available to resolve cases of abusive use of images.

Progressive plan for higher prices.
Agency must show a forward going progression in prices, normally set to 20% increase per year.


« Reply #1 on: February 05, 2009, 04:12 »
0
Hi,
Like the idea.
 1.) Is this would differ law's of different country ?
 2.)  Did lawyer (s) looked into this ?
 3.) I'm totally with You about Restrictions !

« Reply #2 on: February 05, 2009, 04:19 »
0
Add to that an obligation for the user to stipulate how, when and where he/she will be using the image.
Patrick H.

alias

« Reply #3 on: February 05, 2009, 04:38 »
0
So a form of usage - rights management for all images of people ?

You raise important and interesting points. But maybe some will argue that there should be some sort of opt out system where the models could sign some sort of release and the pictures could be sold rights free.

Then we would be back to where we are already.

It is definitely important to explain to models how their picture might be used under the rf model.

« Reply #4 on: February 05, 2009, 04:42 »
0
Hi,

I think it's becoming more and more important by the day, the creation of an organization that could defend the stock industry photographers. A place where professional stock photographers, as well amateurs could exchange their opinions and draw tactics for their own protection.

But also, an organization with the ability to monitor the legality of agency contracts and decisions, and even take legal actions against abuses from the agencies.

People often comment that it's impossible to make the micro photographers act together. This is something often read when boycotts are proposed against a specific agency for whatever reason. But the main reason for this lack of unity is the fact that photographers feel that there's no coordination and in the end nothing will happen to the agency.

If agencies felt that legal actions could be taken against them, and photographers knew that this could happen in their defense, a lot more coordination would be seen. Of course there would still be those that would not want to join of participate, and that's natural, but things would have a different strength.

As an example, I think I can cite what happened last year when Getty introduced the 49$ fee for web use in all their collections (RF and RM). After an uproar among the traditional stock photographers and the actions of some organizations, Getty ended up changing this strategy in some important points. They didn't end the price program but were forced to make adjustments. And this happened because some organizations representing a lot of photographers were involved.

I can also point  what happened with Fotolia subscriptions last year, which did not end them but made the agency add benefits for the photographer like counting the downloads for the photographer ranking, or what happened with Stockxpert with the deal with Photos.com/Jupiter Unlimited where they ended up changing the conditions of the buyers license so they could not get a license for 0.30$ with the benefits of an EL.

This only shows that even disorganized and based solely with a lot of noise in the forums, photographers can defend some of their interests. Having an organization would work much, much better.

I don't think that this could even be seen as a threat to the agencies. In fact, a good photographers' organization could bring benefits to honest and respectfull agencies by boasting their credibility among photographers, and benefiting from their commitment to submit images there.

But the first step must be made by the top stock photographers. Not only because they have a deep knowledge of the industry, even in legal terms but also because they gather a lot of attention from all the business and can mobilize a lot of people.

P.S.: it already exists at least one known organization of stock photographers, that I know of, but unfortunately they are completely anti-micro.

Best regards.
« Last Edit: February 05, 2009, 05:02 by zts »

« Reply #5 on: February 05, 2009, 04:49 »
0
With microstock you know the rules: Your rights = NONE - agency can change or ban anything anytime and you can cry but thats all. In case anything goes wrong, all trouble fall on your head - micorstock agency is never responsible for credit card frauds, misuse of images or thefts. We all know this.

I think microstock matured abit and its time for more "fair-play" game. If agency takes 80% of money, they should also taky some responsibility and really work for photographers, not just squeeze everything possible out of them. Thats exactly the reason why I do not upload any ppl on micro - absolutely no control.

I said it again - the dealing with MR and PR is very wrong and insane in some cases. Agencies require MR or PR for every possible stuff, on the other hand they accept pics of post stamps, coins, maps, car parts etc. which are all protected by copyright. Outside US or EU MRs and PRs simply do not exist, even post-comunist part of EU is mostly untouched by PR. And in some law-systems you cannot sell the rights or copyright etc. and all the law about identity protection, human rights etc. still apply even if the model signs MR.
In fact agreements with all microstock agencies would be illegal to sign in my homecountry - so which law apply? How are you going to sue with agency across half of the globe with not a single written paper from them?  

RT


« Reply #6 on: February 05, 2009, 06:21 »
0
Yuri,

I'm sure you're aware that the majority of the microstock agencies don't give a t**s about how the images are used once they're downloaded, of course that is until they start to get bad press and then they make a half hearted effort to do something about it.

What you're suggesting regarding the legal side of usage would be very easy to implement but it would have to be done by an independant company within the legal community, microstock sites have very little knowledge of the law and even less ability to enforce it other than hiring a law firm for each and every case, if you're serious about this why not approach a large law firm and see if they would be prepared to set up a department for dealing with breaches of usage, they could charge a membership or add hoc fee.

But IMO asking agencies, contributors or organisations like the SAA to do anything is a waste of time because (a) they can't and don't have the power & (b) unless it directly effects themselves they won't have the interest to do it.

As for the example of "identity theft" you gave, I'm afraid to say that on the brief information you've given I don't think they've done anything wrong.

bittersweet

« Reply #7 on: February 05, 2009, 08:59 »
0
As for the example of "identity theft" you gave, I'm afraid to say that on the brief information you've given I don't think they've done anything wrong.


I disagree. If they showed the photo, and the text accompanying that photo specifically stated that the person in the photo is "xyz" and so uses or recommends their product, it would definitely fall under the usage violation of personal endorsement. The other may fall under "sensitive issues" but that seems to be a much more gray area to police. Stating that the person in the photo has specific personal problems certainly seems defamatory to me.

From the istock licensing agreement:
http://www.istockphoto.com/license.php
Quote
4. Standard License Prohibitions
(a)...or greater certainty, the following are Prohibited Uses and you may not:

6. use the Content in a fashion that is considered by iStockphoto (acting reasonably) as or under applicable law is considered pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content into disrepute;
use or display any Content that features a model or person in a manner that (i) would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or (ii) that depicts such person in a potentially sensitive subject matter, including, but not limited to mental and physical health issues, social issues, sexual or implied sexual activity or preferences, substance abuse, crime, physical or mental abuse or ailments, or any other subject matter that would be reasonably likely to be offensive or unflattering to any person reflected in the Content;



« Reply #8 on: February 05, 2009, 09:28 »
0
As for the example of "identity theft" you gave, I'm afraid to say that on the brief information you've given I don't think they've done anything wrong.

Well maybe it's probably not the full story, but at first sight it looks like proper use. Models are actors and impersonators. Whatever their own beliefs or values, they can and will be used to promote products or services or even political/religious ideas in the area of political/religious marketing, that they don't personally endorse. Their identity can't be stolen since they sold it.
If you can't stand the heath, stay out of the kitchen.

I'm always telling that to models, and they are cool with it. I think it's the moral obligation of a photographer to explain to models that their images are a torpedo that left the ship, and there is no way to call it back. I also leave models totally free to refuse scenes and concepts, and I never pressure anybody to model. No problem, my list of candidates is much longer than I can handle in a century.

The only thing I'm strict about is the model's privacy. I would be terribly mad if an agency disclosed name/address/telephone to a customer of the images.

« Reply #9 on: February 05, 2009, 09:59 »
0
I disagree. If they showed the photo, and the text accompanying that photo specifically stated that the person in the photo is "xyz" and so uses or recommends their product, it would definitely fall under the usage violation of personal endorsement.

But that's the essence of advertising! Advertising is one big lie, it's make believe. Nobody believes that Sean Connery is a Russian submarine captain embracing Communism, nobody believes that the beautiful girl advertising Shampoo XYZ actually used XYZ to get her hair that shiny. She might even hate XYZ since it causes allergy. Nobody believes that McDonald can produce eatable hamburgers that green and fresh and crisp as on their billboards.

Quote
Hey I'm Cindy, I live in ABC and I'm happily married with two kids. Kids like to play outside and often they get soooo dirty. I regularly had to throw their clothes away, till I discovered BIOBLU. Yes, with BIOBLU my life changed totally, and my kids are happier than ever since they can play in the mud as much as they want. BIOBLU gets rid of all stains. My relationship got much better too (enters the loving husband with a lewd grin on his face) since with BIOBLU I'm not that worried housewife any more, but a totally relaxed partner and mom.

In reality, "Cindy" is Mae, she lives in DEF, she uses BUMBUM for washing, she is a single divorced parent and her kids are on dope. BIOBLU clutters your washing machine and no washing powder can get rid of tomato stains. Mae doesn't care how her images are used, since acting is a part-time job. Whoever knows Mae in person knows she is not "Cindy". Advertising/endorsing/storytelling is a carnival with masks. Modeling too.
« Last Edit: February 05, 2009, 10:01 by FlemishDreams »

tan510jomast

« Reply #10 on: February 05, 2009, 10:16 »
0
i certainly think it is some kind of identity theft when you use someone's photo, be it a model or not , even if they signed a MR. it's sort of gives the impression, like Yuri said, that she is actually that person endorsing that site. eg. meet hot single girls.
i think i saw that even on facebook. 8)
at best, certainly reeks of ID theft. at worst, you click on the ad and see no one looking as hot as that girl in the ad.  ;D

One, this would fall under FALSE ADVERTISING.

PERHARPS, there should be a Webmaster Notice that says something like
"photographs are not of actual people looking for mates, but are models taken from ad agencies". or something like that.
« Last Edit: February 05, 2009, 10:20 by tan510jomast »

RT


« Reply #11 on: February 05, 2009, 13:45 »
0
As for the example of "identity theft" you gave, I'm afraid to say that on the brief information you've given I don't think they've done anything wrong.
I disagree. If they showed the photo, and the text accompanying that photo specifically stated that the person in the photo is "xyz" and so uses or recommends their product, it would definitely fall under the usage violation of personal endorsement. The other may fall under "sensitive issues" but that seems to be a much more gray area to police. Stating that the person in the photo has specific personal problems certainly seems defamatory to me.

Just to clear something up, 'Identity theft' is when someone steals your identity and performs an act using your identity, using a photo of a model and giving him/her a new name and background is not Identity theft.

As for the personal endorsement, as I said Yuri has only given brief details, however nearly every single image of a model is used to endorse a product, service, business etc otherwise nobody would buy any photos  :D, the key part of the clause you've highlighted is whether such endorsement would bring that person into disrepute.




bittersweet

« Reply #12 on: February 05, 2009, 14:43 »
0
As for the example of "identity theft" you gave, I'm afraid to say that on the brief information you've given I don't think they've done anything wrong.
I disagree. If they showed the photo, and the text accompanying that photo specifically stated that the person in the photo is "xyz" and so uses or recommends their product, it would definitely fall under the usage violation of personal endorsement. The other may fall under "sensitive issues" but that seems to be a much more gray area to police. Stating that the person in the photo has specific personal problems certainly seems defamatory to me.

Just to clear something up, 'Identity theft' is when someone steals your identity and performs an act using your identity, using a photo of a model and giving him/her a new name and background is not Identity theft.

As for the personal endorsement, as I said Yuri has only given brief details, however nearly every single image of a model is used to endorse a product, service, business etc otherwise nobody would buy any photos  :D, the key part of the clause you've highlighted is whether such endorsement would bring that person into disrepute.

Oh yes...  :D to clarify, I was disagreeing with your assessment that they had done nothing wrong, as in I believe they possibly violated the licensing agreement. I am aware of the meaning of "identity theft" and no, I do not think this is an example of that.

As to endorsement, there is a difference between illustrating a product and implying an endorsement of a product. To use your example, for them to state that the person in the photo is "Cindy" and that she uses the product is an endorsement. To have an image of a model folding laundry, for example, with a list of features of the product and why it rocks, is not an endorsement. The line is crossed when it is explicitly stated that the model uses the product.

RT


« Reply #13 on: February 05, 2009, 17:48 »
0
As to endorsement, there is a difference between illustrating a product and implying an endorsement of a product. To use your example, for them to state that the person in the photo is "Cindy" and that she uses the product is an endorsement. To have an image of a model folding laundry, for example, with a list of features of the product and why it rocks, is not an endorsement. The line is crossed when it is explicitly stated that the model uses the product.

Absolutely but as I said Yuri hasn't given enough details to make a judgement.

« Reply #14 on: February 05, 2009, 18:10 »
0
 My son was telling me only yesterday that he now realizes what a mistake it is to engage in business relationships with family and friends. You can't simply say...here's the contract (or, you signed the release)...and walk away.

Yuri_Arcurs

  • One Crazy PhotoManic MadPerson
« Reply #15 on: February 06, 2009, 04:24 »
0
The legal mess of microstock becomes a problem working with real models and real model agencies, and not just friends. Microstock offers so little protection for the model. If we don't do something now, then in a couple of years when more and more microstock photographers start working with agencies, there simply will not be any agencies left that want's to work with us. I have already destroyed my working relationship with two agencies already, that now will not take ANY jobs for microstock ever....

Agencies that underestimate the importance of protecting the model and photographer is undermining their own ability to earn money in the future.
« Last Edit: February 06, 2009, 04:49 by Yuri_Arcurs »

RT


« Reply #16 on: February 06, 2009, 04:51 »
0
I must admit that I do actually care about legal matters. I am one of those people that actually reads the contract to the different agencies I sign up with.
The legal mess of microstock, becomes a problem working with real models and real model agencies, and not just friends, that microstock offers so little protection for the model. If we don't do something now, then in a couple of years when more and more microstock photographers start working with agencies, there simply will not be any agencies left that want's to work with us. I have already destroyed my working relationship with two agencies already, that now will not take ANY jobs for microstock ever....
 

Real model agencies don't like Stock and never have, it dilutes their products (model) value.

Real models are aware that Stock helps pay the bills.

Real models who are prepared to do stock should be made aware of the possible uses of the images, this includes the fact that their images may be used in a way that is beyond the photographers control, especially when they're sold as RF and even more so on microstock sites. It doesn't make it right but it's a fact of life, along with the fact that many images on microstock sites are used way beyond the terms of the license.

As I said earlier, I have no doubt whatsoever that Microstock agencies are aware of the breaches in licence terms that happen each and every day, but it is not in their interest to do anything about it because for them it wouldn't be finacially viable, they also don't care whether the model is a 'Real model from an agency' or the girl next door.



 


« Reply #17 on: February 06, 2009, 06:11 »
0
I realize this is a little speculative (but not greatly so, given the current state of play), but I believe this is the reason why, in the not too distant future, 'models' will be computer generated and not real people at all. The advances in CG characters in cinema in the past five years have been pretty spectacular.

« Reply #18 on: February 06, 2009, 06:26 »
0
I realize this is a little speculative (but not greatly so, given the current state of play), but I believe this is the reason why, in the not too distant future, 'models' will be computer generated and not real people at all. The advances in CG characters in cinema in the past five years have been pretty spectacular.


Maybe then artists will have legal problems with real people who will clam that model is generated on the bases of their look , cause the model will have to look somehow , and there will probably be a real human that is similar to the model.

« Reply #19 on: February 06, 2009, 09:05 »
0
I realize this is a little speculative (but not greatly so, given the current state of play), but I believe this is the reason why, in the not too distant future, 'models' will be computer generated and not real people at all. The advances in CG characters in cinema in the past five years have been pretty spectacular.


Maybe then artists will have legal problems with real people who will clam that model is generated on the bases of their look , cause the model will have to look somehow , and there will probably be a real human that is similar to the model.
There is some truth in this. istock has already said that if you upload a likeness of a person (3d, illustration, whatever) then you need a release. I guess this applies even if there actually wasn't a real person to provide the 'likeness'.

« Reply #20 on: February 06, 2009, 11:25 »
0
Yuri,

I had someone lift images off a traditional site, not micro, and use them as the thieve's own on Facebook. The model called me one day and explained how a friend had seen their picture attached to a name and  identity that was obviously not theirs. This guy was clearly not happy with his own ugly mug so he thought he'd enhance his possibilities of gaining friends by getting a face job, so to speak.

I agree with your concerns and it certainly is making me wonder about the whole notion of micro as a viable business.

Peter

« Reply #21 on: February 06, 2009, 11:31 »
0
I agree with your concerns and it certainly is making me wonder about the whole notion of micro as a viable business.

As your own example illustrates, this has nothing to do with microstock per se.

« Reply #22 on: February 06, 2009, 11:52 »
0
FWIW, I've seen a lot of well-known microstock model imagery used in ways that make me cringe, and I'm not by any means a conservative or prude. I always think to myself that if the photographer or model saw it they would not be pleased. Makes me glad I don't shoot models.

As to what can be done about it, I'd think very little. If you don't want your imagery to be used in ways that don't appeal to you, you need to be more proactive by making less generic imagery. If you make an image that can be used for just about anything, it will be used for just about anything, and complaining about someone using it in a way you didn't intend or foresee doesn't make much sense.

I see this in much the same vein as the old 'Doctor it hurts when I do this ...' joke. If you don't like your images to be used like that, don't make images that could ever be used like that. Yes, your revenue will decrease if you take this tack, but so will your problems and stress.

« Reply #23 on: February 06, 2009, 12:07 »
0
If you don't like your images to be used like that, don't make images that could ever be used like that. Yes, your revenue will decrease if you take this tack, but so will your problems and stress.

You can do this by limiting poses and situations. In my experience my models like to go much "farther" than I deem good for their own interest. There is not much that can go wrong with a model in business suit, but the proverbial sexy girl in bikini will be all over the net in facebook, friendster, and with amateur collectors.

shank_ali

« Reply #24 on: February 06, 2009, 12:14 »
0
As the photographers are getting better and more proff, the agencies stay the same. I am facing constant problems in working with professional models and their agencies, because of lack of proper user right restrictions and legal follow-up.

Just this other day, some German newly started blog, had taken a picture of Cecilie and called her Heidi or so, claimed she was 31 years old, had two kids, had a couple personal problems and spoken on behalf of her as if she was writing this blog herself. She apparently endorsed the product they where trying to sell!. This kind of "identity theft" if one of the things that causes my business the most problems. I have lost two good models on this account, that now will not do stock anymore and I have jeopardized my working relation with lots of model agencies

I suggest that we stand together on a set of "bill of rights"


Uploading.
Simplified uploading system where images do not need to be processed individually, but properties can be batch applied, such as model releases, keywords, categories, etc.

Restrictions.
User rights restricting basic abuse of images, so it is possible to work with professional models and model agencies.

1. Identity theft. Calling the model a new name, speaking on behalf of the model. Assigning properties to the model, such as "has two kids", "lives in Germany" etc.

2. Usage where the model is used in a fashion that is defamatory, political, racist or phornographic or in relation to such content.

Legal follow-up or the capacity to do so.
The agency must have legal resources available to resolve cases of abusive use of images.

Progressive plan for higher prices.
Agency must show a forward going progression in prices, normally set to 20% increase per year.
May i suggest you use normal people instead of pro models.The rest of your proposals went straight over my head ::)


 

Related Topics

  Subject / Started by Replies Last post
3 Replies
2986 Views
Last post March 13, 2007, 18:38
by t_rust
22 Replies
9037 Views
Last post May 20, 2009, 13:46
by null
0 Replies
1169 Views
Last post August 20, 2012, 17:20
by ruxpriencdiam
14 Replies
3571 Views
Last post July 09, 2015, 08:51
by AYA
13 Replies
4459 Views
Last post March 07, 2016, 09:49
by angelawaye

Sponsors

Mega Bundle of 5,900+ Professional Lightroom Presets

Microstock Poll Results

Sponsors

3100 Posing Cards Bundle