Reading previous responses, I had another old thought brought up to the
surface (and some corollaries).
1. If a photographer takes a photograph of person A, (a photo
session or a candid portrait), A buys (can buy) that photo. In the absence
of any explicit contract clause related to this, can yet another person,
B, buy the photo of A?
From the logic discussed in response to my earlier questions, - the answer
is "No" (or rather "not really").
If both A and B are in the photograph (a "group photo"), - then both A
and B can buy it. Now, if we consider the case in between the two, - how
much [*] of "B" must be in the photo to be able to buy the photo of A?
[*] - What portion, e.g. a head, a portion of it, a hand, ..., or, -
in what capacity (in the foreground, in the background).
While this is primarily an "academic" consideration, - there could be a
practical case. E.g. if A is a celebrity walking on the street, and B is
passing by while the photograph is taken, managing to "get into the
picture". At what point can B _legally_ buy that photo?
2. And yet a different branch of the same thought process is related to
the studio question (1a in the previous message, below). I guess there is
a way how the studio can argue the legality: If the instructor is present
in the group photo, then the photo can be legally purchased by (or on
behalf) of the instructor. Then, it is now the relation between the studio
and its employee. So, assuming that the instructor does not object the
deal (sort of, the instructor hand the picture on the studio's wall), then
it is ok.
[The legality of such a transaction between the instructor and the studio,
especially since it involves a financial consideration, namely the salary,
is a grey area; it is too complicated to discuss it here.]
3. And finally, can a third party, C, _legally_ comission (a financial
transaction) a photo (say, as a piece of art) of a person A without a
release from A? (And not for the purpose of news publication.)
Because an alternative view of the same question is: can the
photographer make money legally from the photograph of A without a
release? And, from what I know, the answer to the latter formulation of
the question is "no".
If the answer to the first formulation is "no" (C cannot legally
comission a photo of A without a permission from A), then some might
already see a legal solution to that situation:
C comissions the photographer to take a photo of A, while asking B to be
in it. Then B allows C to have the photo that he legally buys from C.
[My inquisitive mind is starting thinking: in that case, would it be legal
for C to cut off a portion of the photo that contains "B". But let's not
venture into that.]
In all of this, I assume that the photo is otherwise taken legally (e.g.
on a public property, in a situation without an expectation of privacy,
not presenting the person in a wrong way, etc.)
I would be curious to hear what different PDMLers think about these
logical exercises. (I hope that maybe even the lurking Pentaxian, laywer,
M.G. would share his informal opinion.)
Cheers,
Igor
On Wed, 15 Apr 2015, Igor PDML-StR wrote:
I have a question for PDMLers who might have experience with that.
(I had never thought of these questions before...)
Let's consider a photo session (in studio or on location), and the
photographed subjects (or their parents) are ordering photographs (specific
example: individual and group photos of kids at school, sport teams/dance
studios...).
Question: Can the photographer use these photographs elsewhere without an
explicit model release(s)?
I would consider three sub-questions related to the purpose
1) for some explicit profit (e.g. sell to a 3rd party, including stock,
magazine, etc.)
1a) can the studio/venue where it happend (dance studio) buy the photo?
2) for advertizing purposes (on the photographer's website, on other
websites, in the printed ads)
3) without any profit or explicit advertisement purposes (e.g. on the
community website, free giveaway to some news media).
I know that under this conditions (unless specified otherwise in the
contract), the photographer keeps the copyright (even though it is a work for
hire). But what about the rights of the people imaged (in the context lined
out in the cases above)?
Thank you,
Igor
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