Consent for displaying photographs in a professional studio?

TheRoadRunner

Hello

Got pics taken a few weeks back in a professional studio. Photographer is now displaying one of the pics on his website and studio wall. We never signed a consent form allowing him to do any such thing. Is he allowed to display them without our consent. They are of our youngest child and I'm a little precious about his image being made public. I've found some literature to suggest that this is not allowed in the UK so assumed similar case in Ireland. However can't find anything definitive.

Cheers

Paulw

There should have been some form of contract or release signed when the photo shoot was arranged.

In general, the photographer owns the copyright, so would have the right to use it for display, but he should have requested permission, out of respect.

Have a quiet word and you may be able to come to an agreement.

Borderfox

You didnt sign a consent form/model release, your well within your rights to ask them to take them down.

The photographer owns the copyright but this doesnt give any rights to display for advertisement only in an editorial capacity

VisionaryP

That's not quite true, Borderfox. The photographer has the right to display them UNLESS there was a contract signed to state otherwise. A model release is not required. People have a massive misunderstanding about what purpose a model release actually serves. A model release allows the photographer to pass on publishing rights to a third party. The photographer doesn't actually need a model release whatsoever to publish or display the photos he/she took themselves.

OP, to be honest the best thing is to have a chat with the photographer and express your concerns. I'd be shocked if he refused to take it down. Photographers are incredibly proud creatures. When we take a nice pic, we want as many people as possible to see it. If for a second I thought a client was uncomfortable about a pic on display, I'd remove it, and I'm guessing most photographers are the same.

Borderfox

The photographer isnt just displaying the pictures, they are being used to advertise for more business

VisionaryP

Yep, and he is within his rights to do so.

Borderfox

Ok but still would you consider it bad form to put something up without letting them know?

VisionaryP

Not particularly, no. I would consider it bad form if he refused to take it down if the OP asked though.

Eirebear

Borderfox wrote: »

Ok but still would you consider it bad form to put something up without letting them know?

Not particularly - theyre on his website and in his Studio.

If he was hanging pictures of the kid up around town, then maybe i've have an issue but all he is doing is displaying his own work within the context of his own business.

Go have a chat with him OP, explain that you are uncomfortable with it and see what he says.

Borderfox

Ya learn something new everyday I always thought it was expressly by permission.

TheRoadRunner

Borderfox wrote: »

Ya learn something new everyday I always thought it was expressly by permission.

Thanks for all replies. I would have thought the same above but had an inkling it wasn't clear cut.

I do know of one case (through a friend) that went to court recently and damages were claimed against the photographer. Without going into all the details the photo was displayed in a shop front and work mates seen it and basically took the proverbial P out of the "model". He hadn't realised photo was displayed. He was looking for damages. I don't know how it turned out in the end. Based on above replies I guess he lost. Must find out actually

sineadw

Actually, as far as I understand it, the new moral rights inserted in the Copyright and Related Rights Act 2000 expressly address this, and come down on the rights of privacy. If you *commission* a photograph you have the following rights:

114.—(1) Subject to the exceptions specified in subsection (3), a person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have the work or copies of the work made available to the public.

(2) Subject to subsection (3), the act of making available to the public, or authorising the making available to the public, of a work or copies of a work referred to in subsection (1) without the authority of the person who commissions the work infringes the right conferred by subsection (1).

(3) The right conferred by subsection (1) shall not be infringed by an act which under section 52 , 71, 72, 76 or 88 would not infringe the copyright in the work.

(See here)

Where 52 is incidental, and the 71,72 and 76 bits refer to statutory work

So, (without trying to give legal advice!) assuming the images were commissioned, the OP is absolutely within their legal rights to have it taken down. Jurisprudence is weighing heavily on the French and German model of Image Rights these days.

All that being said, the photographer really should have asked either way, and I would imagine would have no problem taking the image down if asked

VisionaryP

Yep, that's in the act for commissioned photos, films etc. Technically, a portrait shoot is not a commission, unless a contract was signed to specify that it a commission to shoot x number of photographs, which is extremely rare. A commission is more common in corporate photography, for example, a photographer is commissioned to photograph a new prototype. The photographer will sign a contract to say he is commissioned to take photographs of that item, and the contract should then go on to say who has ownership of the images etc. Another example might be a photographer who is commissioned to take stills during a movie shoot. If there is no contract to say it's a commission, then it isn't a commission. It's a service.

My missus is a solicitor who deals with this stuff on a daily basis, so I'm pretty well covered in this field.

sineadw

BUT.. I wouldn't like to be standing in front of a judge arguing that, with the way things are moving towards article 8 of ECHR. Have you/your OH been following Deazley in Source for example? There was a recent EU ruling that 'taking a walk' could be considered a private act, and therefore, images of it would be unpublishable. Look at the recent case with J.K. Rowling in particular - the judge made *specific* allowance to the fact that the case revolved around the image of a child. Not that this is the same arena, but AFAIK there's not much precedent in Moral rights as yet here, so cases are still very much open to interpretation.

Anyway, you'd want to be some sort of major eejit to refuse to take down an image of a child if requested by the parent.. Even from a business point of view. Just look at the hysteria surrounding images in playgrounds in Cork for example.

VisionaryP

The parent brought his child in to be photographed. It's not as if the photographer ninja-roped down the chimney and photographed him at bath time.

As the law stands, such a case wouldn't even make it before a judge because the CaRA2000 is very clear on the matter, so in fact, no, it's not open to interpretation. That may change in the future, but at the moment, that's where it stands.

TheRoadRunner

All very interesting stuff thanks. By the way the photographer has agreed to take the pic down. I would have bad mouthed him in a bad way if he hadn't;)

VisionaryP

Good stuff, happy ending.

Your next step is to go in and see if you can buy it off him at a steep discount! It's no use to him gathering dust and he may be happy to recover his print costs.

Hugh_C

VisionaryP wrote: »

My missus is a solicitor who deals with this stuff on a daily basis, so I'm pretty well covered in this field.

Would your missus be willing to give a little talk on this? I'm baffled by releases (which I get signed all the time but haven't much understanding of what it actually means)

For a small fee of course ;

H

VisionaryP

Hugh_C wrote: »

Would your missus be willing to give a little talk on this? I'm baffled by releases (which I get signed all the time but haven't much understanding of what it actually means)

For a small fee of course ;

H

I'll ask, but I doubt it.

Seriously, there's not much to it. Considering you are the photographer:

Do you ever plan to sell the images to a third party so that they can print, publish or edit them? If the answer is yes, or even maybe, then get a model release.

Do you plan to use the images in your own portfolio, display them in your own studio, blog or website or publish them in your own literature? If so, then you don't need a model release.

Now a contract may be in place that says otherwise, and that's fine, you go by what's in the contract. But when there's no contract, which is most of the time, the above is the law.

Also, make sure you don't mislead the model, verbally or otherwise. If you tell him or her that they won't go up on a website or blog for example, and the next day she sees herself up on modelmayhem, well then she'd have a case that she was mislead.

sunny2004

VisionaryP wrote: »

Do you plan to use the images in your own portfolio, display them in your own studio, blog or website or publish them in your own literature? If so, then you don't need a model release.

Wow, I never knew this was the case, I always assumed you had to have a release..

Cameraman

VisionaryP wrote: »

I'll ask, but I doubt it.

Seriously, there's not much to it. Considering you are the photographer:

Do you ever plan to sell the images to a third party so that they can print, publish or edit them? If the answer is yes, or even maybe, then get a model release.

Do you plan to use the images in your own portfolio, display them in your own studio, blog or website or publish them in your own literature? If so, then you don't need a model release.

Now a contract may be in place that says otherwise, and that's fine, you go by what's in the contract. But when there's no contract, which is most of the time, the above is the law.

Also, make sure you don't mislead the model, verbally or otherwise. If you tell him or her that they won't go up on a website or blog for example, and the next day she sees herself up on modelmayhem, well then she'd have a case that she was mislead.

Very interesting - what you've written here is what I've been saying for years - though I have to say that some people seemed to disagree with me.

One issue you haven't explicitly mentioned is editorial use e.g. in a newspaper or magazine story (as opposed to advertising etc). I always thought that was allowed as well - even though you might have been paid by the newspaper for use of the photo. Can you confirm one way or the other ? Or is there a difference here between photos you take without pay (e.g. on the street) and photos you were paid to take (e.g. a studio - but technically not commissioned, as you said earlier)

mdebets

VisionaryP wrote: »

I'll ask, but I doubt it.

Seriously, there's not much to it. Considering you are the photographer:

Do you ever plan to sell the images to a third party so that they can print, publish or edit them? If the answer is yes, or even maybe, then get a model release.

Do you plan to use the images in your own portfolio, display them in your own studio, blog or website or publish them in your own literature? If so, then you don't need a model release.

Do you have any link to te relevant legislation?
If the first part would be true (without any exception) there would be no puictures in newspaper or magazines, as most of them wouldn't have a model release.

VisionaryP

mdebets wrote: »

Do you have any link to te relevant legislation?
If the first part would be true (without any exception) there would be no puictures in newspaper or magazines, as most of them wouldn't have a model release.

The full act is here: http://www.irishstatutebook.ie/2000/en/act/pub/0028/print.html

With regards to news photography, street photography etc... That's a whole different ball game, and not something I do, so I'm not 100% with it. Up to this point I've been discussing studio photography.

As far as I'm aware, if you're taking a photo of something in a public place that is newsworthy and not trying to use it in a manner that would be offensive, misleading or breaking a reasonable expectation of privacy, then you're clear for editorial or newspaper publication. Again, it's not something I do, but that's how I understand it.

mdebets

VisionaryP wrote: »

The full act is here: http://www.irishstatutebook.ie/2000/en/act/pub/0028/print.html

With regards to news photography, street photography etc... That's a whole different ball game, and not something I do, so I'm not 100% with it. Up to this point I've been discussing studio photography.

As far as I'm aware, if you're taking a photo of something in a public place that is newsworthy and not trying to use it in a manner that would be offensive, misleading or breaking a reasonable expectation of privacy, then you're clear for editorial or newspaper publication. Again, it's not something I do, but that's how I understand it.

Thanks for the link

Unless I'm missing something here, I can only see legislation in the link that relates to the copyright holder and what he can do with his creations and what other people can do with them . The only part that actually deals with the rights of the subject in the creation (e.g. people being photographed) is the one about commissioned photographs (discussed above already).
Is there some other legislation out there that deals with the rights of the subjects of a picture or did I miss something reading this legislation?

The_Snapper

TheRoadRunner wrote: »

Hello

Got pics taken a few weeks back in a professional studio. Photographer is now displaying one of the pics on his website and studio wall. We never signed a consent form allowing him to do any such thing. Is he allowed to display them without our consent. They are of our youngest child and I'm a little precious about his image being made public. I've found some literature to suggest that this is not allowed in the UK so assumed similar case in Ireland. However can't find anything definitive.

Cheers

Not sure on the legal side of it as it is a bit gray over here, however, I shoot in a studio and it is only with customers permission we display images for advertisement in the shop window, gallery, papers or website etc. Even at that we have a set of regular parents who always allow usage.

We have adopted the attitude that when clients come in for a sitting it is a private matter and nobody else's business.

I would approach the studio with this in mind and ask for them to be removed on those grounds. Your photographer, should have had the decency to ask first.

He/She should also be able to muster up some models from friends/family etc.

Jimdagym

The_Snapper wrote: »

Not sure on the legal side of it as it is a bit gray over here, however, I shoot in a studio and it is only with customers permission we display images for advertisement in the shop window, gallery, papers or website etc. Even at that we have a set of regular parents who always allow usage.

We have adopted the attitude that when clients come in for a sitting it is a private matter and nobody else's business.

I would approach the studio with this in mind and ask for them to be removed on those grounds. Your photographer, should have had the decency to ask first.

He/She should also be able to muster up some models from friends/family etc.

The OP said the photographer has agreed to take it down. Its a good policy in your place though.

AnCatDubh

VisionaryP wrote: »

The full act is here: http://www.irishstatutebook.ie/2000/en/act/pub/0028/print.html

No lawyer here however this kinda covers most photographers studio work under "Right to privacy in photographs and films."

114.—(1) Subject to the exceptions specified in subsection (3), a person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have the work or copies of the work made available to the public.

(2) Subject to subsection (3), the act of making available to the public, or authorising the making available to the public, of a work or copies of a work referred to in subsection (1) without the authority of the person who commissions the work infringes the right conferred by subsection (1).

(3) The right conferred by subsection (1) shall not be infringed by an act which under section 52 , 71, 72, 76 or 88 would not infringe the copyright in the work.

So, the copyright remains with the photographer - agreed, but can't be shown in public under the right to privacy of the individual. I wonder do all photographers who do commissioned work understand this.

The other interesting point is does a waiver of the right to privacy exist in photographers contracts have effect in law - or could a client who in their contract with a photographer has waived the right to privacy (as per the above act extract), subsequently claim damages should the said photographer land a big wad of cash from say a commercial entity for the use of the image.

All hypothetical but interesting none the less.

Paulw

AnCatDubh wrote: »

So, the copyright remains with the photographer - agreed, but can't be shown in public under the right to privacy of the individual. I wonder do all photographers who do commissioned work understand this.

The quote of law which you have highlighted only says that the image may not be made available to the public. But, this would not preclude the photographer from displaying the work in their gallery.

Being "made available" to the public is very different from being "on show" to the public. Made available = for sale.

So, the photographer can't sell your photo to the public, but can still show their work.

sineadw

I'm still in doubt over this TBH. Without wishing to belabour the point; legislation isn't something stuck forever in statute. It changes all the time. From the point of view of press photography for instance - you take a picture of someone out on a public byway, not doing *anything* that'd even be termed a private act within the quite narrow scope of continental law (even if it's in a public space). Just taking a walk, or horseriding, or whatever. That's perfectly fine, and sure we'd all be in agreement on that, right? Perfectly within our rights to take and publish? Not according to the European court it's not.

I know the law as it stands is on the side of the photographer, but that doesn't mean it is exclusively, and I think there needs to be a bit more thought put into cases like the OPs than 'I have a RIGHT to put a picture of your child in my window!'. Otherwise we'll lose that right altogether.

The_Snapper

Jimdagym wrote: »

The OP said the photographer has agreed to take it down. Its a good policy in your place though.

Opps, missed that one. Glad to see it resolved though.

Cameraman

sineadw wrote: »

I'm still in doubt over this TBH. Without wishing to belabour the point; legislation isn't something stuck forever in statute. It changes all the time. From the point of view of press photography for instance - you take a picture of someone out on a public byway, not doing *anything* that'd even be termed a private act within the quite narrow scope of continental law (even if it's in a public space). Just taking a walk, or horseriding, or whatever. That's perfectly fine, and sure we'd all be in agreement on that, right? Perfectly within our rights to take and publish? Not according to the European court it's not.

I know the law as it stands is on the side of the photographer, but that doesn't mean it is exclusively, and I think there needs to be a bit more thought put into cases like the OPs than 'I have a RIGHT to put a picture of your child in my window!'. Otherwise we'll lose that right altogether.

Laws can change - but they apply while they are currently in force. My understanding that the law does not specifically cover all the matters being discussed here - but that what VisionaryP quotes is essentially what applies.

The European Court item you quote related to "Public Figures". As I understand it, many countries make a distinction between public figures and the generality of private individuals in terms of what can be published.

And you've already seen this :


http://www.irishtimes.com/newspaper/...280700127.html

"The judge also commented that the issue of privacy versus freedom of expression should be a matter for new legislation.

In his judgment, Mr Justice Kearns concluded the publication of photos of the couple and child leaving the registry office were not a breach of privacy because they were taken in a public place when they were performing a routine public function. The photos did not disclose anything that could not have been seen by anyone else who turned up at the registry office at the relevant time, he said."

jaybeeveedub

sineadw wrote: »

legislation isn't something stuck forever in statute. It changes all the time.

unfortunately that's exactly wrong.... legislation is by it's very definition stuck in statute.

The statute book represents the corpus of legislative acts in force in the jurisdiction, and only changes by the enactment of new legislation, or is altered by statutory instrument....

just look at the laws we have at the moment...

s38 Offences Against the Person Act 1861... still in effect

the lunacy act 1871... still in effect

recent repeals include the de donis conditionalibus and quia emptores of 1285 and 1290

these two were in force for over 700 years!

now I get your point, but you cannot say the law is changing all the time!

The current legislation governing this area is in force and not affected the decision in von Hannover v Germany, it's binding, no two ways about it...

EyeBlinks

The thing I find most confusing about this thread is why the OP would have a problem with a presumably fabulous shot of their child being displayed !

magicbastarder

i don't put *any* portraits i've taken of friends or family up here; in fact, they're all password protected on the website i use.
they would not stop to think that i might put them up on a public website, even if it's not a flickr style account, one that i would usually direct people to.

i.e. i don't do anything to display the photos that they might not already expect.

EyeBlinks

magicbastarder wrote: »

i don't put *any* portraits i've taken of friends or family up here; in fact, they're all password protected on the website i use.
they would not stop to think that i might put them up on a public website, even if it's not a flickr style account, one that i would usually direct people to.

i.e. i don't do anything to display the photos that they might not already expect.

Do you speak a little bit of English at all

The_Snapper

EyeBlinks wrote: »

The thing I find most confusing about this thread is why the OP would have a problem with a presumably fabulous shot of their child being displayed !

Privacy, springs to mind.

melekalikimaka

The_Snapper wrote: »

Privacy, springs to mind.

thats a very gray area tbh