Model VS photographer in ownership of legal rights/copy-rights

[photocycle]

Quick question for those who are familar with the law side of photography...

If you do a TFP photoshoot with a model and no TFP/Waiver contract was signed from either party.... who ultimately owns the legal rights and copyrights to the photographs? And does the owner (whether it be the photographer or model) "NEED" consent from the other party to publish any of the photos? (Publish - internet, print, etc.. some form of publication, non-commercial though)
Thanks!

[HuBBaTheMan]

You always own the copyright and publishing right for the photos as the creator of the image. That is pretty set for international copyright and the only way you can waive/remove that right is if you do it intentionally through a contract.

However, national law may govern HOW you can use the images if you have a identifiable person on the images. For example defamatory or commercial use may need the consent of the person on the images.

The use of a release form (modelling agreement) is usually to govern both what the model are allowed to do with the images in terms of limited copyright and that he/she agrees that the use of the images can be commercial.

Even if you are shooting it TFP these waivers needs to be signed since IF you are a company, using those images for your own promotion will most likely be considered commercial use. Especially on the internet.

Note though that the copyright is an international law afaik, but the models consent of publishing images are a national law so it may differ quite a bit.

[Jon]

1 as you've described it: The photographer

2 as you've described it: No

But don't believe me or any other photographer (especially on the internet), spend the $150 for an IP attorney to tell you, and have a definitive answer.

[photocycle]

Interesting responses...
Here are the responses I got from DPREVIEW.... I think it's good that all photographers know the exact answer to this...


and by the way, is uploading pix to your flickr.com, photobucket, etc. (any photo hosting sites) website considered commercial? In a sense you are advertising yourself when you upload pictures on there right?

[Jon]

it's not commercial, but it *is* publishing

Edit: I don't see anything in your post from DPR.

It doesn't really matter though.

Spend the money on an IP attorney and *know* rather than listen to a bunch of idiots quacking on the intarwebz.

I think there's more misinformation on the web about releases and copyrights and the confusion of the two than any other single topic.

[brian.austin]

Originally Posted by photocycle

Interesting responses...
Here are the responses I got from DPREVIEW.... I think it's good that all photographers know the exact answer to this...

Very few of us care about what DPR regulars think. Different culture.

No, all photographers should know better than getting themselves into the situation in the first place.

Model + photograph = release.

No exceptions if you're doing anything more than taking family/friend snapshots. Most portrait and wedding contracts have releases in them as well (mine do for self-promotion/non-commercial use).

[Take12]

Originally Posted by Jon

Spend the money on an IP attorney

Yeah, right!
Better throw your money into a bottomless pit, or send it to me.

[Ed Shapiro]

When you have earned your living in photography as long as I have you learn a little bit about the law as it pertains to our craft. What I have learned is that that it is not safe to do business in today's litigious society without a good well thought out and professionally approved binding contract spelling out the rights of all parties concerned. There is just too many misapprehensions, folk lure, urban legend, assumptions and old wives tales out there and believe me, some of them could not be further from the truth.

In today's day and age there are just too many pitfalls and perils that can befall a photographer/business person that there are no simple or all inclusive answers to various aspects of contract law as it applies to images usage.

Sometimes there are really no implied laws or blanket laws that cover you automatically. Nowadays one of the biggest legal specialties is is patent, copyright, intellectual property and trademark law. It is best to consult with such a specialist before you get into trouble. Once you have to sue someone or are on the receiving end of a lawsuit, that is when you start throwing money into an endless pit. What ever money you spend, in advance, for legal advice in creating a proper contract with all the right stipulations and clauses to protect your integrity, your money is indeed well spent.

I have seen a few instances where a photographer was driven into bankruptcy by quite innocently placing a image in the Internet. Remember, ignorance of the law is no excuse. If you even unknowingly affect someones privacy or do something that infringes on someones rights, even if it is not intentional- as they say in law school-"your ass is grass"! By the same token you don't want your interests diminished by someone who uses you images with reckless abandon and cares nothing about the ramifications.

It's ludicrous that photographers will spend thousands upon thousand of dollars on equipment and setting up their studios but they oftentimes won't care about insurances and protective contracts which need to be put in place to protect all they have invested in.

My advice- ASSUME NOTHING! Don't take advice from other photographers (even me) when it comes to the letter of the law and even the spirit of the law. Just remember, any logical agreements written up in a legal contract are enforceable and fully binding by all parties as long as the contract does not include illegal elements.
Create a rough draft of a contract which addresses with all of your concerns and possible perils. Make a list of any and all questions before seeing you lawyer. Theses folks charge by the hour so preparedness is important. I situations like this I usually send an Email out to my lawyer with all the background information and questions. She in turn will prepare some answers so when I get there we are not starting from scratch. A few minutes that it takes a lawyer to highlight some of you questions in a letter and have some information for you drafted up in advance will cost you less than long explanatory verbal explanations. When you get to the office you can get into the real nitty-gritty technical stuff.

Ed

Good luck to all. Ed

[Jon]

Originally Posted by Take12

Yeah, right!
Better throw your money into a bottomless pit, or send it to me.

Spoken by someone that has clearly never been involved in an IP lawsuit

[brian.austin]

Originally Posted by Jon

Spoken by someone that has clearly never been involved in an IP lawsuit

Mr. Smith...err...Jacco...err...Take15 doesn't really have the same respect for copyright regulations that you or I might have. Take it with a grain of salt.

[HuBBaTheMan]

For all you US based photographers, here is a very good interview with Ed Greenberg who goes through both releases and copyrights. Again, this is mostly for US based photographers as the law does differ country to country.

Photoshop Insider » Catch My Exclusive Interview with Attorney Ed Greenberg for the Straight Scoop on Copyright, Model Releases, and Shooting in Public

[Take12]

Originally Posted by Jon

Spoken by someone that has clearly never been involved in an IP lawsuit

Correct. I don't live in a Kafkaesque culture. You do. "Democratically" chosen. So you deserve what you get...

But don't make the standard American mistake to presuppose that what goes in the USA goes in the rest of the world too. It doesn't!
The USA represent less than 5% of the global population. Yet they act as if they own the place!
US IP lawsuits are the exception, not the rule!

[HuBBaTheMan]

That was a bit uncalled for Take and a political discussion that really has no place on this forum. IP Lawsuits happen daily in every country.

So let that debate on which legal system is the best end here and now and lets get back to taking photos and signing model releases

[12stones]

I always get a model release even when shooting TF* just in case. That said, thanks for the link to the Ed Greenberg interview. I can't watch it at work, but I'll definitely check it out tonight.