Club photos copyright question..

Discussion in 'photography, graphics & art' started by Chi, Dec 5, 2015.

  1. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    There is a very legitimate claim to copyright from the people photographed. If you claimed your own image was the most important thing in the photograph, or your art, or your club's 'image' etc etc etc. This is why model release forms exist.

    In the case of the OP, if they are not making profit from the photographs, then there is little point in anyone chasing copyright ownership. If they are selling images of people enjoying a night in a famous, or branded club, then they are profiting from the investment made by the club owners. The club owners could make a very viable claim for their share of the cash.

    e.g. People have paid €1,000 for a VIP table with champagne to be seen at a prestigious nightclub. If you (as the photographer) sell your photographs to them with an obvious "this is your night out in THIS very expensive nightclub called 'fabuloso fabulous spunking nightclib Ibiza dot com) then the owners of the club would rightfully make a claim after their investment, and would probably only allow Two professional photographers to operate within their premises on strict terms.

    In practice, everyone has a smartphone and everyone these days is the best photographer and owns all rights to their untold fame and wealth.
  2. mhendo

    mhendo Aussie in Connecticut

    Here in the US, a private property owner can make rules preventing photography, and can make you leave the property if you show an inclination to break those rules. But if you were still able to rattle off some shots, it is very unlikely he could make any claim on the contents of the images, unless you had explicitly signed an agreement beforehand giving him such a claim. As others have suggested, simply posting a sign laying claim to any images taken on the premises would almost certainly not be legally sufficient.

    Not in the United States, unless the image was going to be used for advertising purposes or some other directly commercial purpose. Photographs taken for editorial or news or personal use do not require model releases, and model releases are not (at least in the US) about copyright anyway. Releases and copyright ownership are two separate issues.

    I believe, however, that UK law might be a bit different in terms of model releases. If my reading on the subject is correct, there is no law in the UK that requires model releases, even for commercial use of a likeness. I remember Urban member detective-boy pointing out this lack of protection in UK law a few years back, and at the time I looked it up an it appeared to be true, but i am not as familiar with UK copyright law as i am with the US law.
    There are a couple of issues here.

    First, in the US at least, this sort of indirect profiting is irrelevant to the issue of copyright. It doesn't matter who has created a particular situation, or how they have done it. If i have photos of that situation that i took myself, then, unless it was explicitly done under a work-for-hire agreement, i own the copyright and i do not owe anything to the people who paid to host the shindig. It doesn't matter if they've spend a million quid to create the party, or if guests have spend five grand a head; my photos are still my photos. You are right that they, as the people in charge of the property, could refuse me access, but once they have allowed me to take photos, they have no claim on the profits unless they have a specific contract with the photographer.

    Second, in the United States at least, there often IS, in fact, a point of pursuing copyright claims even if the person who has nicked your images has not deprived you of any income. You automatically own the copyright to any image that you create, but if you actually register your copyright with the US Copyright Office, that actually gives you more leverage if you want to sue someone who uses your images without permission.

    If you do NOT register copyright, you can sue a copyright infringer, but the only monetary claim you can make is for actual damages, i.e., the amount of money that you lost as a result of the infringement. For a relatively small and local event liker the one described in the OP, this is unlikely to be a lot of money.

    But if you DO register your copyright, you can also sue for statutory damages, which can be awarded in an amount ranging from $750 - 30,000 per infringement. That is, if you register your copyright, and someone nicks your images, you can sue them and recover a bunch of money even if their theft did not actually deprive you of income. Furthermore, if the court finds that their infringement was "willful" (that is, if they knew what they were doing was wrong, and did it anyway), the court has discretion to up the damages amount, up to a maximum of $150,000 per infringement.

    Again, as i said earlier, i'm not sure if this works in the same way in the UK.
    Greebo likes this.
  3. cybertect

    cybertect It's grim up north (London)

    Formal Copyright registration does not exist in the UK.

    Aside from that, the legal position in the UK is broadly the same, though. There are no 'personality rights' such as exist in some other jurisdictions (notably Hungary and France).

    In either case they would have no bearing on any copyright held by the promoter.
    Greebo likes this.
  4. mhendo

    mhendo Aussie in Connecticut

    So, does UK copyright law allow for statutory damages in cases of infringement, as allowed in the US when a work is registered? Or can you only sue for actual damages?
    Greebo likes this.
  5. cybertect

    cybertect It's grim up north (London)

    You can sue for recovery of actual losses and costs only, though the court may make an additional award if it was a blatant infringement, such as removing a watermark.

    It's a source of complaints that papers like the Daily Mail will regularly use photos without permission and then suffer no great penalty for doing so if they get caught out.
    muscovyduck and Greebo like this.
  6. mhendo

    mhendo Aussie in Connecticut

    Yeah, i think that's fucked up.

    If there is no possibility of statutory damages, it means that there is effectively little or no risk in nicking someone else's pictures. This sort of system tilts things (even further) in favor of media outlets and other organizations with deep pockets, because they know that very few individuals are likely to pursue a lawsuit when all they could win is actual losses plus costs. Especially since the big guys usually already have in-house counsel or lawyers on retainer to deal with this sort of thing.

    A statutory damages system at least has the advantage of sometimes forcing the big guys to pay out significant sums of money, especially since copyright violation (at least in the US) is a strict liability offense, meaning that you only have to prove that they used your image without authorization, and not that they intentionally defrauded you. And if you can prove that their use was willful, you can, as i said above, really score big, especially since it would be rather hard for large media organizations, which deal with copyright issues every day, to argue that they nicked your image inadvertently.
  7. editor

    editor hiraethified

    Err, no. You don't have any claim to another photographer's copyright just because your face appears in the picture. However, if the work is being used commercially then a model release form should be signed..
    Pickman's model and Greebo like this.
  8. sim667

    sim667 Licking windows on the 303 bus.

    I think there are 3 things that seem to apply here.

    1. The host does not own the copyright, they are your images - unless you've signed away your rights, which reading the thread doesn't seem to have been the case.

    2. You do not need model release forms, you have taken incidental photographs, that are not being sold/used to commercially promote a product/experience..... They are your images that you are selling and using to promote you as a photographer.

    3. Location release form - is the only bit I'm a little woolly about, you definately do not have to sign one for the host's benefit, but there may be an issue with the venue. - That said, the venue owner/manager isn't likely to know or care, and thinking about all the events I've done, and weddings that I've known people to work on, I'm sure there are never location release forms involved.

    I would suggest a copy of Beyond the Lens is a must have for all photographers when it comes to reference for the photographic business

    editor likes this.
  9. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    I'm not so sure about this. If someone valued the originality of their personl image as much as I value the originality of my paintings, or photographs, then I would be happy to hand over/share copyright. If someone copied my paintings in a public space (many are) and profited from it without giving me my share I would be bit pissed.

    I think ultimately in 9 out of 10 cases Copyright issues are about money and a civil case for those chasing money. The lawyers are the only winers.
  10. FridgeMagnet

    FridgeMagnet Administrator

    You might want to grant them rights but you wouldn't have to.

    If someone took a picture just of your painting and sold it as a print then that _would_ be a copyright breach. If they took a picture of a city square where it so happened there was somebody selling paintings, that wouldn't.
    muscovyduck and Mr.Bishie like this.
  11. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    But, what if they took a picture of an individual in a public place and profited.

    e.g. Those postcards you see of London punks. Would the individuals (who are undoubtedly the subject of the photograph and their own creative image) be entitled to anything? Personally, I think they would have a good case unless they had signed a model release, or other contract.

    Nobody is really concerned about Copyright unless money is involved. I am more than happy for the Thousands of tourists to photograph me, me sketching, my sketches, my huge murals get photographed over a Hundred times a day. Great! Post them wherever you like - all good for me. I wouldn't be that bothered if a painting, or sketch turned up on a postcard reproduction. Not a lot of money involved, but surely I would have a claim to Copyright as creator, or originator of the image that is selling?

    As far as the OP is concerned: Both parties want to make money. If it wasn't for the event organiser's time, money and effort, then the OP wouldn't have found a money making opportunity. Talk about profit share and forget stupid, greedy, squabbles about Copyright. Copyright really wasn't anything non-professional photographers knew about before the internet. They still don't. Nor does the law to a large extent. The law is having to evolve to accomodate internet publishing. It isn't really clear cut.

    Another thing is websites that seem to misunderstand the difference between Copyright and your rights to photograph in a public space. This is clouding the issue even more. Just because you have the right to photograph in a public space (or, private space for that matter) doesn't mean you have the right to profit from those photographs.
  12. editor

    editor hiraethified

    That's already been clarified several times. You need a model release form for commercial exploitation but at NO point does the copyright ever go a photographer's subject just because they happen to be in the picture.
  13. FridgeMagnet

    FridgeMagnet Administrator

    You don't even need a model release form in the UK.
    muscovyduck and Pickman's model like this.
  14. editor

    editor hiraethified

    It's a legally grey area, but I'd always recommend using one for some commercial circumstances (but not street scenes).

    RPS launches Model Release Form
    weltweit likes this.
  15. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    You don't need a model release form, but if someone with better legal representation, or more money than you challenges, you will lose. Regardless of whether you took the photograph on the street, or in a studio.

    Editor is wrong here.

    'Street scenes' are a very different thing to an individual's image. So, perhaps Editor isn't that wrong.
  16. mauvais

    mauvais change has become unavoidable

    No, you don't need a model release form. And you have no rights to your own likeness. All in the UK anyway. Different in France, for instance.

    All you can be done for is taking a photo of someone and misrepresenting them with it - Stanley Edwards drinks Coke etc - which is basically libel or defamation rather than anything copyright related. That's why release forms exist for stock photo models etc, so you can do as you like without getting in trouble.
    laptop, FridgeMagnet and editor like this.
  17. editor

    editor hiraethified

    Editor isn't wrong at all. And no matter how much you keep repeating it, being the subject of a photo does not grant you copyright. That always remains with the photographer unless he has been hired and agreed to hand over copyright to the person commissioning the shots. As for model release forms, see mauvais's post above.
  18. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    Copyright is automatically granted to the photographer. Every single photograph you take is your Copyright. However, it is up to you to protect your Copyright. Copyright is also granted automatically to any artist. It is up to the artist to protect their right. If someone considers their own image to be their own work of art they can very legitimately chase their rights through the civil courts.

    Model release forms recognise that the model has entered into an agreement with the photographer which allows the photographer to do what they like with the images produced. For profit, or any other use. Model release forms effectively recognise that the model has signed away any claim to Copyright.
  19. editor

    editor hiraethified

    That's somewhat odds with your earlier claim: "There is a very legitimate claim to copyright from the people photographed. If you claimed your own image was the most important thing in the photograph, or your art, or your club's 'image' etc etc etc."

    There is no 'legitimate claim' in such circumstances. None.
  20. mhendo

    mhendo Aussie in Connecticut

    Wrong, on both paragraphs.

    Copyright is designed to protect expression and encourage innovation in the field of intellectual and creative work. The simple fact of your own appearance, your own image, is not something covered by copyright. In US law, in fact, the list of things covered by copyright is actually provided, right there in Title 17 of the US Code:

    Note, in particular, that in the United States, an item that qualifies for copyright protection has to be "fixed in any tangible medium of expression." That is, you could have the greatest idea or story or song or photography idea or whatever, but it does not qualify for copyright protection until you write it down or put it on a hard drive or take a picture. I am not aware of a human being's own face or appearance, by itself, ever qualifying for copyright protections in the United States, and i do not believe that any court in the land would rule that a person's own image, as embodied in their own appearance, qualifies for copyright. I don't believe that UK courts would rule much, if any, differently.

    If you have any evidence to the contrary, i'd be interested to see it.

    As for a model release, a model release does NOT sign away a claim to copyright, because you can't sign away something that you never had. A model release is a consent form that allows the copyright holder (the photographer) to use the image for a particular set of purposes. Signing or not signing a model release has no effect whatsoever on the photographer's copyright, and does not in any way restrict what the photographer can do with the image in terms of non-commercial use.

    And, as others have noted, this distinction between commercial and non-commercial use applies in the US, but is not written into UK law. You don't have to get a model release in the UK, although most professional photographers recommend it if you want to sell your work commercially, because most commercial image buyers (stock photo agencies, advertising agencies, etc.) will not purchase your images unless they come with model releases for any recognizable people in the image.

    Also, to the extent that your image might be legally protected in the UK, the reasons (as clearly explained in the RPS model release form linked by the editor) have almost nothing to do with copyright. Rather, the reasons rest on laws related to personal data protection, breach of confidence, and the principle of contract. Even in those cases, the copyright remains wholly and solely with the photographer, even if the law might (and in most cases, it wouldn't) prevent publication of the images on other grounds.

    The only time that the instructions for the release form discuss copyright is in the specific case of "a person commissioning a photograph for private and domestic purposes." That is, if you explicitly and specifically pay a photographer to come to your house and take a picture of you, for your own private and domestic purposes, you have a right to demand that the photographer NOT issue any public copies of the photograph. But that does not apply to someone taking a picture of you in a public place.
    editor and FridgeMagnet like this.
  21. FridgeMagnet

    FridgeMagnet Administrator

    If you look at most template model release forms out there, including the one linked to above, they're basically contracts, which is a sensible thing to have (for both model and photographer—if you agree to model for a shoot for a tenner for a portfolio and the photographer then sells the pics, if you have nothing in writing you won't have much of a case to say "hang on that's not what I agreed to").
  22. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    Photography and Copyright Law

    After the photo is taken, however, the photographer should be concerned with the person’s right of publicity. You violate a person’s right of publicity when, without permission, you use a photo of a person for your own benefit. The “editorial” use of a photo is not considered a use of the person’s image for your own benefit. “Commercial” use is different because the use benefits the photographer, so you need the person’s consent to use their image. If you get a model release signed by the subject, you are free to use the image commercially, i.e., for advertising.


    That is just one example from a quick Google search. In my own words my understanding is:

    If a persons image is the main subject of a photograph, and is effectively the 'commercial value' of the photograph, they can make a claim.

    This applies to people, peoples own design T-shirt, or costume (e.g.), company branding, graphic design etc etc etc.

    Your ownership of Copyright does not always give you sole rights to profit. If anyone, or any organisation thinks their creativity is being used for profit, they can make a claim. This is entirely different to any privacy, or slander law.
  23. mauvais

    mauvais change has become unavoidable

    Nope. For a start that relates to the US, which noone seems to be talking about.
    editor and existentialist like this.
  24. mauvais

    mauvais change has become unavoidable

    Even in the US, it's state, not federal.

    Personality rights - Wikipedia, the free encyclopedia

    See e.g. that in Greece, you're not allowed to take photos of people in public without consent. As I said before, in France you also have some protection.

    Note that the UK does not feature.
    editor likes this.
  25. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    If you lot want to doubt the veracity of a highly respected, specialised, international Copyright lawyer with years of experience, then you aren't going to listen to an internet bum like Stanley Edwards.

    US law is very much equal to UK law. The only difference is it costs much more to protect your rights in the US.

    The link to Wiki Mauvais is using has no relevance to the link I used.

    Here is a picture of a dog dressed up as a pilgrim in Santiago de Compostela.


    The guy uses the dog to pose for photos for tourists at a suggested donation of €1 a time. If you took the photo and decided to print postcard reproductions is the Copyright and profit all yours, or do you recognise the dog's owner's rights as the creator of the image?

    Personally, I wouldn't bother with the photo, never mind postcards, but if I did, I would be more than happy to recognise, and pay the creator of the image, and so would the law.

    Exactly the same applies to people and art created by other people. You wouldn't be happy if someone copied one of your photographs for commercial gain, so what makes you think you can steal other peoples' creativity for your own profit?
  26. mauvais

    mauvais change has become unavoidable

    Yes, Stanley. Yes it is.
  27. Stanley Edwards

    Stanley Edwards 1967 Maserati Mistral. R.I.P.

    Yes. It is in the case of Copyright. Copyright needs to be recognised internationally in this day and age.
  28. mauvais

    mauvais change has become unavoidable

    For which we have the Berne Convention.

    Or more verbosely, The Berne Convention for the Protection of Literary and Artistic Works.

    Not, I understand, The Berne Convention for the Protection of Literary and Artistic Works And Yer Face.
    laptop and editor like this.
  29. editor

    editor hiraethified

    You seem awfully confused about copyright law.
    laptop likes this.
  30. mhendo

    mhendo Aussie in Connecticut

    There are a few issues going on here and, consistent with your performance so far in this thread, you are bollixing them up completely.

    First, you ask if i am willing to "recognise the dog's owner's rights as the creator of the image." This is an invalid question, because if i take a picture of the dog, the dog's owner is not, in fact, the creator of the image. I am.

    The dog's owner might have washed and ironed the charming little doggie outfit, and the dog's owner might have given the dog a nice bath, and then dressed him up and even made him sit there in a charming pose. But if i'm the one who looks through the viewfinder and composes the shot and clicks the shutter, then i'm the one who took the image, and i'm the one who can claim copyright. Putting clothes on something is not, by itself, an act of creative expression recognized by copyright law, in the US, the UK, or under the Berne Convention.

    As to your second paragraph, in a case like this i would be happy to pay the dog's owner his suggested donation of €1. But this has nothing at all to do with copyright, or with intellectual property more generally. It has to do with the formal legal procedure known as "Not being a complete twat."

    If that dog is in a public place, i have the right to take as many pictures as i want without paying anyone a dime. But i would give the guy his 1 euro, because i recognize that he has gone to some effort in order to provide something charming for me to photograph. And i think that it would be sort of a dick move to take the picture without giving the donation. It might even result in some verbal or even physical abuse from the dog owner, depending on his temperament. But none of that is about copyright.

    In your last paragraph, you mention "art created by other people," and seem to put the nattily-dressed pooch into this category. But, in the US at least, this would not work, because as i noted earlier, to be eligible for copyright, a piece of art has to be fixed in a tangible medium of expression. This does not apply to a dog in a suit sitting on a step. Also, even if you actually created a proper artwork, like a sculpture, this poses problems for your argument as well, because (in the US at least) a photograph of a three-dimensional artwork such as a sculpture is considered, for copyright purposes, to be a new creative work. This is because the act of photography itself, when applied to three-dimensional images, is a creative act, involving decisions about angle and lighting and lens choice. Changing these things when shooting a sculpture can have a big impact on how the sculpture appears in the photo.

    The one area where your argument would hold is in the case of "slavish" or "mere" copies of two-dimensional artwork like paintings and photographs. That is, if you produce a painting, and i take a photograph of the painting in an effort to create as accurate a reproduction as possible, then i cannot claim copyright in my photo, because it lacks the creative spark that copyright is designed to protect. I have probably, in this case, also violated your copyright.

    Note that this is a rather grey area, and the exact outcome depends on exactly how one photographs the artwork, and how significant the artwork is within the photograph. For example, if you stick your artwork on a stand in Hyde Park, and i take a picture of the park that also happens to have your artwork in it, then i probably have not violated your copyright, and i also hold copyright in my own photograph because it required creative effort to compose and shoot the picture. There is very little clear legal precedent in cases like this.

    Most of these observations are based on the US case. There may be UK peculiarities or protections of which i am unaware.
    editor likes this.

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