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Author Topic: How can they do this?  (Read 6740 times)

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« on: August 12, 2007, 18:26 »
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 ???  sorry guys, did I miss the thread about Microstockphoto and the lack of model releases?

Just had a look around in my area of interest (sport) and found soooo many images with clear logos and clear faces without model releases being sold as royalty free images.  Even if they aren't the best images in the world..  it has the ability to leave a bad taste in everyone's mouth should something here (or elsewhere) go sour.

Any thoughts?

JC


« Reply #1 on: August 12, 2007, 19:22 »
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Just had a look around in my area of interest (sport) and found soooo many images with clear logos and clear faces without model releases being sold as royalty free images. 
Any thoughts?

JC

it depends where you saw that pictures because some RF sites (ie Shutterstock,and  most of macro stock agencies) also sells editorial pictures as well,which means images can only be used for editorial purposes,which is perfectly fine to sell them without model releases and without worrying about other copyrighted material(ok  there may be exceptions)

« Reply #2 on: August 12, 2007, 20:14 »
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Microstockphoto sells Royalty Free editorial images (just like Shutterstock).

« Reply #3 on: August 12, 2007, 23:08 »
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OK...where on earth does it tell a buyer that this image is royalty free, BUT can only be used editorially? Just saying NO in the model released area won't do it.
( quite frankly... royalty free + editorial exclusive doesn't make sense to me. )

In my day job, I run a RM editorial site ( sportlibrary.com.au ) which only deals in B2B, not for the general buying public.  You'd think with this select market of world-wide editorial buyers our clients would know the difference between an editorial image and one the is released..?

Buzzzzz!  Wrong.   The amount of 'editors' .. 'art directors' etc that think because they got an image from a website that they can use it for anything ( yes, there has been some great threads on this subject here ) ... even if it's Michael Jordan in action. 

Sorry, still don't get it...  but then, I've never been the quickest.   ::)


« Reply #4 on: August 13, 2007, 00:14 »
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Ever submit an image to the BBC, CNN, Fox News, or your local news station?  Ever notice you are granting them a non-exclusive royalty free right to use that image - for free (so you can be an "eyewitness reporter" or a "citizen journalist")?

Same thing.
« Last Edit: August 13, 2007, 00:18 by wysiwyg_foto »

« Reply #5 on: August 13, 2007, 01:19 »
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Ever submit an image to the BBC, CNN, Fox News, or your local news station?  Ever notice you are granting them a non-exclusive royalty free right to use that image - for free (so you can be an "eyewitness reporter" or a "citizen journalist")?

Same thing.

Yes ... stay away from the news agencies. They all seem to think that the 'glory' of having your photo on their pages for a day is payment enough for a photographer.

Unfortunately you can't feed yourself on glory ... nor does it help keep you warm at night.

« Reply #6 on: August 13, 2007, 18:17 »
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LOL!!  Bateleur..  I tried the glory one with with my bank manager once...  if nothing else,
we both had a good laugh  :D

wysiwyg..  submitting your images to a news agency and them claiming it needs to be RF, means to them that they have the rights to syndicate your images without compensating you.  Simple as that.   People GOING to a RF site to buy a royalty free image is a completely different story.

Again I say nicely that the buying public ( professional or not ) is ignorant of the laws and if you don't restrict them or hit them over the head with a hammer, you can't expect them to do the right thing.  I've been running photo agencies for over 20 years and in that time... every year it gets worse.

I only brought this up because I see this MS industry growing some very good, strong roots for the future and without some form of education or guidance to some of the newbie sites ( which are obviously not run by photo people!) there will be a high profile case where a RF image from a MS site is used wrong ...  and everyone will be painted black.

There are PLENTY waiting for the first real slip up.   

Symantics aside, there is a difference between both RF situations.  A big difference.

cheers.  JC

« Reply #7 on: August 13, 2007, 20:23 »
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OK...where on earth does it tell a buyer that this image is royalty free, BUT can only be used editorially? Just saying NO in the model released area won't do it.
( quite frankly... royalty free + editorial exclusive doesn't make sense to me. )

well,I agree with you to some point,and I am sure you are right about many people would think they could use the image that they'd  downloaded  from a RF agency for anything they want.but like you said they are WRONG! and I thinkit  is their responsibility to follow the rules as I think they are somewhat warned before hand. ie if you want to download an editorial image from shutterstock it is clearly indicated if  it's an editorial  and it  may require further  rights. and I think it is just lack of knowledge of the buyer if this is isn't taken into account  rather than it is something to do with licensing (either RF or RM)because even if the image bought from a RM agency buyers are still bounded with same rules as for RF.


« Reply #8 on: August 13, 2007, 21:17 »
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absolute right...   can't agree more, but buyers going to a RM site don't expect the world for each image.. RF (free) is completely different.   The assumption is it's free from further royalties and free from issues.    You and I both know this is wrong, but that's the general assumption.. 

(remember what they say about assume!)   

Shutterstock and the list of (excuse the expression..please)  professional MS sites aren't the issue.  They do a good job and that's why MS is where it is today.  I personally think their good work could be at risk....  that all I'm saying.

cheers.

« Reply #9 on: August 13, 2007, 22:16 »
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...Again I say nicely that the buying public ( professional or not ) is ignorant of the laws and if you don't restrict them or hit them over the head with a hammer, you can't expect them to do the right thing.  I've been running photo agencies for over 20 years and in that time... every year it gets worse...

I'm sorry but I've got to disagree here.  1)  An image DOES NOT need to be model released to be used for commercial purposes.  If a designer wants to use it as such, usually there is no problem here unless the model doesn't approve of the subject matter.  A woman in pink will probably be ok if you use her image to promote breast cancer awareness but if you use the same woman to promote the clubbing of baby seals, you will have an issue.  The only time a model release comes into play is if the model does not agree with usage.  2)  If the public needs to be hit over the head, then why are editorial images (including mine) at places like Alamy sold  without restriction everyday for editorial purposes?  It's because the buyer knows what s/he is doing and what the image will be used for.  3) Syndication and Royalty Free and (your term) Editorial Exclusive are all different things.  A news outlet cannot re-sell the image under a royalty free license without explicit permission to do so (syndication).  Editorial Exclusive is not possible under RF (which is not what Shutterstock or Microstockphoto are doing here - and I think this is where you are getting confused).  Royalty Free simply means that the image may be used over and over again (with certain limitation) without having to license it for various usages.

There's nothing wrong with what's going on here and honestly, it is very common for magazines to license "editorial" royalty free images for various reasons including travel publications.  "Editorial" is not synonymous with "newsworthy" and your right - "exclusive" is not necessarily conducive to a royalty free license in all instances.

« Reply #10 on: August 13, 2007, 23:38 »
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wow...what part of the planet do you live on?  ;D  Sorry, but I know for fact that you can't use someone's image (likeness) commercially without their permission fullstop.  Whether they like it after the usage or not.    Some places in the world you can't use someone's image in editorially without their permission. 

I agree with you...  generally speaking, you can sell just about anything for 'editorial' usages.  My comments were strictly about RF images being sold for commercial purposes without releases.   Simple as that.   If you don't agree with that...cool.   

Other than Alamy, where else can we find your images that are sold to new agencies around the world?  My comments about news agencies had to do with YOU submitting images to them and not them going out and legally obtaining your images.  Their 'royalty free' is just that, they will not be paying you should they syndicate your work.  Try it for yourself if you'd like and let us know how you go.

Please know, I'm not confused at all, just running out of time.   ;)

cheers.

« Reply #11 on: August 14, 2007, 00:09 »
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Other than Alamy, where else can we find your images that are sold to new agencies around the world?  My comments about news agencies had to do with YOU submitting images to them and not them going out and legally obtaining your images.  Their 'royalty free' is just that, they will not be paying you should they syndicate your work.  Try it for yourself if you'd like and let us know how you go.


I think the differences here relate exactly to what you mention - the side of the world we live on.  I don't know what the Australian laws are but here in the U.S., as long as you don't violate a "reasonable right to privacy" an image can be sold.  It's usage is what determines lawsuits in civil court.  The laws aren't much different throughout Europe.

There are various syndicators out there that would be happy to represent you.  They range from Getty and Corbis to Black Star to Zuma Press to Scoopt to AP to Reuters.  News images don't need to be exclusive.  Seems that's what you're concentrating your efforts on.

In fact, here's an account of the NPPA (U.S. organization) encouraging a young man with relation to images he made from a news event here in the U.S.

http://www.nppa.org/news_and_events/news/2007/08/bridge01.html

Notice his images were provided for free prior to the request for exclusive rights from Newsweek?  These images were provided on a royalty free basis to various news organizations.

« Reply #12 on: August 14, 2007, 00:41 »
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I'm an American living in Australia...  to clear that up.

And in the last 30 yrs of my life, I have dealt with just about ever major ad agency in the US (also Australia) and in the that time...   every single image has had to be clearly model released..  no if's, ands' or buts!, yet... we digress...

It seems..like a lot of posts on MSG..   that is has gone such a long way from the direction it originally started, so I'll put a stop to it now.   

Go forward everyone and sell your images released or not for commercial purposes and hope for the best.   I guess until you get sued, you'll never know for sure.

Good luck my friend.. 

Goodnight Ed.  :D

« Reply #13 on: August 14, 2007, 02:18 »
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... here in the U.S., as long as you don't violate a "reasonable right to privacy" an image can be sold.  It's usage is what determines lawsuits in civil court.  The laws aren't much different throughout Europe.


Correct me if I'm wrong (I'm not American and don't live in the US) but isn't America one of the most litigious countries in the world? Here's an example of what can happen there if you don't have the correct model release:

In January 2005, a Los Angeles County Superior Court jury awarded $15.6 million to Russell Christoff, whose image appeared for years, without his permission, on Taster's Choice coffee labels. Christoff, a former model and now a Bay-area teacher, posed for the picture in 1986, but did not know his picture was used until he first saw his likeness on a Taster's Choice coffee jar in 2002.

Christoff sued Nestle USA. Reports are that Christoff declined Nestle's $100,000 settlement offer and Nestle rejected Christoff's offer to to settle for $8.5 million. The jury awarded $15.6 million -- which includes 5% percent Nestle's profit from Taster's Choice sales from 1997 to 2003.


Now, it seems to me that as the guy was a professional model, and he posed willingly (we presume) for the picture in question, then his 'reasonable right to privacy' was not violated. But it still cost Nestle 15.6 million.

« Reply #14 on: August 14, 2007, 08:04 »
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Bataleur - we do have a reputation for litigation in the U.S. - you are correct.

If you read the full abstract of the Taster's Choice case, you'll find that a model release was obtained in this instance.  The argument in the case revolves around compensation not the fact that a release wasn't in place.  You'll also find the citations are specific to California state civil law.

http://tinyurl.com/29yjzb

The goal of the micros is to provide an image that is as free of any legal hangups as possible - this is why we have all of the weird rules that (sometimes) are inconsistent among sites.  One site may take images of the Rockefeller Center (which is trademarked) and another won't.  Usually, if there is an issue, a letter gets written from an attorney, and the image is pulled.

I know of an instance here in Colorado where the University of Colorado took some images at a football game, then used those images in their advertisements (not editorial use).  The crowd in the images (including person I know) did not sign a release and there was no consent implied on the back of the ticket to the game (as can be the case in some instances).  There was no legal recourse in this instance for the person I know that did not sign a release, and the person, being proud to be representing his alma mater, didn't push the issue because he didn't mind the fact that his likeness was used to promote his school. 

Vioala!  No release necessary.

It's like an old business teacher once told me.  Conflict and lawsuits only exist when there are two dissenting opinions, if everyone is in agreement and comfortable with the situation, then there is no issue.
« Last Edit: August 14, 2007, 08:29 by wysiwyg_foto »

« Reply #15 on: August 14, 2007, 12:16 »
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...Again I say nicely that the buying public ( professional or not ) is ignorant of the laws and if you don't restrict them or hit them over the head with a hammer, you can't expect them to do the right thing.  I've been running photo agencies for over 20 years and in that time... every year it gets worse...

I'm sorry but I've got to disagree here.  1)  An image DOES NOT need to be model released to be used for commercial purposes.
Umm, yeah... I'm going to have to disaggree here. Any law student could tell you there is a tort called invasion of privacy by appropriation which has been reconginzed in many states (CA, NY, IL, AL, GA, AR are the ones I know for a fact). Any time you use a person's name or likeness without permission for financial gain you could be liable.

« Reply #16 on: August 14, 2007, 15:03 »
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YingYang - you are correct but a first year law student would also argue the following:

1) A reasonable right to privacy is not invaded if an image is taken from a public place
2) A person that seeks public attention (such as an aspiring athlete participating in a public event to further their career in the case of JC-SL) is going to have a tough time arguing a "private person's right to privacy"
3) A newsworthy image that was once used in an editorial fashion can be subsequently used to promote or advertise the news agency that used the image in the first place. (as an example, I can use unreleased editorial newsworthy images on my website to promote my photography business just as Newsweek or Time Magazine can use their newsworthy editorial images to promote their subscription sales).

...and again, as with my last post, if the person doesn't have a problem with it, then why would they seek civil remedies?

An example of this occurs with wedding photographers everyday.  Say I am hired by the bride and groom to shoot a wedding.  They pay in exchange for the images.  During the course of the wedding, I take an image of everyone attending.  This constitutes a "commercial sale" taking place between the bride and groom and I and it is for my "financial gain".  None of the guests in the images have signed a release.  Say most of the wedding party get drunk at the reception - I'm still safe.  Say one of the people at the reception is a public figure, and after selling the images to the bride and groom, I also decide to sell the images to a tabloid.  Which act is going to get me sued  - the act where I sold the images to a tabloid or the act of selling the images to the bride and groom?

I'm not saying everyone should go out and get unreleased images and sell them commercially, but I reiterate, a release is not necessary in all instances.
« Last Edit: August 14, 2007, 15:50 by wysiwyg_foto »

« Reply #17 on: August 14, 2007, 17:34 »
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Morning Ed...

You gotta stop this...  from why are people so silly as to sell unreleased images as RF ( don't say anything!) to you passing out legal opinion.... wow.   We all have to be careful, THAT was the main point.    To your last post.

1. Shooting in a public place (for the most part, ask the US Gov first  :o)is OK, it's what you do with the images.
2. Seeking public attention has nothing to do with fair use...and from my experience, those seeking attention usually come with a manager who only gets paid when they do...  those seeking public attention are the worst!  Good luck mate.
3. If you're a photographer and you have a legally obtained image(full copyright owner), then you have every right to display and our market your images as long as you don't make it seem as the subject is endorsing you and/or your services.  Just for fun I tried that one out in 1990 to try and clarify some "rules".  Greg Norman I think saw the humor, but his management didn't and it nearly cost me ...  well, let's say a lot :'(      OK, got through that one and know where the ground rules are...  even though I owned the picture...  again, it was how it was used.

And just for a laugh...a wedding isn't a public event and if the guests got drunk in private and you shot them....  even though you sent them to a magazine, I think you might find yourself in a lot of trouble.  If nothing else, it's an extremely bad business practice and I wouldn't expect a lot of referrals.

Common sense needs to prevail in this discussion..   simply you need the permission of anyone you are planning on promoting (a general term...leave it!) a product or service with their image.

You're with IstockPhoto?  ask them....  as they are part of McGetty and have a ton of legals on board.  Again...good luck.


« Reply #18 on: August 14, 2007, 17:51 »
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YingYang - you are correct but a first year law student would also argue the following:

1) A reasonable right to privacy is not invaded if an image is taken from a public place
2) A person that seeks public attention (such as an aspiring athlete participating in a public event to further their career in the case of JC-SL) is going to have a tough time arguing a "private person's right to privacy"
3) A newsworthy image that was once used in an editorial fashion can be subsequently used to promote or advertise the news agency that used the image in the first place. (as an example, I can use unreleased editorial newsworthy images on my website to promote my photography business just as Newsweek or Time Magazine can use their newsworthy editorial images to promote their subscription sales).

Sorry my friend but we're not talking about famous people, or even semi-famous people where the first amendment and the freedom of the press trump the right to privacy. Where talking about people who had their photo taken without permission and it is then used in an ad campaign.

1) your number one is 100% wrong legally. (I'd be happy to provide all the case law you'd like). The act of taking the photo isn't the violation, the commercial use of their likeness is. Public or not, commercial use of an ordinary person's likeness is a tort.

2) 'Commercial' has a very specific legal meaning and you're selling prints to the bride isn't commercial use in the legal sense. Unlike defamation where publication can be to only one person, the tort of appropriation normally requires mass distribution (like use on a billboard, tv, or on a product sold in starbucks).

3) People that are thrust into the public arena or public figures are an exception because then the photos fall under first amendment freedom of the press protection. That's why you can publish photos of Paris Hilton getting arrested. However, use those same photos to sell some product and see how fast you get sued (and they'd win).

Perhaps your first year law student should have had Torts II.

Edited: to ask why your iStock link doesn't work?
« Last Edit: August 14, 2007, 18:00 by yingyang0 »

« Reply #19 on: August 14, 2007, 18:32 »
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You're with IstockPhoto?  ask them....  as they are part of McGetty and have a ton of legals on board.  Again...good luck.

You may want to familiarize yourself a bit more with relation to licensing and usage rules because you've really deviated from your original post to try to prove me wrong.

You are correct, I am with iStock.  iStock does not license editorial images - Scoopt does (and they do license them royalty free in some instances).

« Reply #20 on: August 14, 2007, 18:41 »
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Sorry my friend...


You're misunderstanding my comments - I am not making a distinction with relation to celebrities and ordinary people.  Maybe I shouldn't have used the example of a public figure.

Here's a simpler example....a drag strip a few miles from my house.  Here's a link to their photo gallery:

http://bandimere.com/multimedia/photogallery.php

They are promoting themselves (and showing pictures of license plates) using unreleased images for commercial purposes.  The people in those images (from the fans in the stands to the general public viewing the cars) are not released.  Competitors usually sign a release but other than that, those images are being used commercially to promote the track.

Here's another example of commercial use without release....

If you scroll down this page, you will see a bunch of spectators at a mountain biking event in Whistler, BC.  Again, unreleased image promoting the event in a commercial manner

http://www.crankworx.com/results.php

Point is, if the people in the images don't have a problem with it, then there is no lawsuit and there is no legal case to discuss.

I don't know why my iStock link doesn't work.
« Last Edit: August 14, 2007, 18:49 by wysiwyg_foto »

« Reply #21 on: August 14, 2007, 18:46 »
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They are promoting themselves (and showing pictures of license plates) using unreleased images for commercial purposes.  The people in those images (from the fans in the stands to the general public viewing the cars) are not released.  Competitors usually sign a release but other than that, those images are being used commercially to promote the track.

Point is, if the people in the images don't have a problem with it, then there is no lawsuit and there is no legal case to discuss.

I don't know why my iStock link doesn't work.
Since you didn't actually read my last post, I'm going to stop discussing this. That's not a commercial appropriation of someone's likeness (hell most of the people in those photos are out of focus).

« Reply #22 on: August 14, 2007, 19:08 »
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I did read your last post and what you're refusing to reveal is that an individual DOES NOT have an absolute ownership right in their names or likenesses.

Let's get back on topic.

Yingyang, you are arguing the right to appropriation, but then you're flipping all over the right to privacy (which is a different matter).

The original poster was asking "how can they do this" in regards to selling royalty free editorial images.  A license is a license is a license no matter how you slice it or dice it.  Whether an image is "leased" for a certain print run limiting copies or whether it is for unlimited use.

You are arguing appropriation but appropriation relates to use in connection with products or merchandise, or to sell or advertise goods or services.  I argue that a model release is not required to sell an image of a person's likeness "commercially" or to use that image in a "commercial" manner.

The last time I checked, "commercial" does not limit use to the connection of products or merchandise.  A person can still sell an unreleased image without promoting or endorsing a commercial product and not fall under the appropriation rules.  If that same image does not injure the economic interest of the person due to "commercial" exploitation, then it isn't likely there has been a violation to the right to publicity either.

What's muddying this up even more is JC-SL is confusing "Fair Use" (which relates to copyright law) with "Appropriation".

« Reply #23 on: August 14, 2007, 23:03 »
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II argue that a model release is not required to sell an image of a person's likeness "commercially" or to use that image in a "commercial" manner.

The last time I checked, "commercial" does not limit use to the connection of products or merchandise.  A person can still sell an unreleased image without promoting or endorsing a commercial product and not fall under the appropriation rules.  If that same image does not injure the economic interest of the person due to "commercial" exploitation, then it isn't likely there has been a violation to the right to publicity either.
A model release is required for every non-editorial RF license I've ever read because of the allowable uses. And, no commerical isn't limited. But both websites you linked to don't qualify as commercial use. In the first one they're not using the people's images to sell anything and it's arguably editorial. In the second it's an editorial use (using an image of the events while reporting the results is a classic editorial use).

Oh, and appropriation is not a different matter from right to privacy. Appropration is a form of invasion of privacy. In fact, appropriation was the first form of invasion of privacy to be recognized by the courts. Legal history was my favorite class in law school.


 

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