Posted by David Prichard on December 29, 2010 at 8:50 PM
Several of us locally are having a bit of a debate over photos on Facebook. It started over a photographer posting his images of clients on Facebook.
For the purposes of self-promotion photographers have always had a bit of leeway with releases not being required. Facebook states that in uploading a photo you are giving them license to use it.
While uploading images to such sites as Facebook may be of self-promotion intent, would the fact a photographer has given license to a third party now make that image commercial and require releases?
I wonder if the laws are slightly different there in Canada, Dave. We have to have releases before we can use client images in our own promotions.
As for FB secondary uses, that's why we don't play. Over the last year or so we've had requests from clients for digital versions from sessions for their own use on FB. After much soul searching we provide them- for a fee of course- and also watermarked with our copyright notice.
We also provide only a small size (320 pixels on the long axis) to somewhat limit FB's potential to use them. Actually that's only a half-truth, or in modern parlance, "spin." We keep them small to limit our clients' potential to enlarge them because we make our "big" money on selling the prints. We don't hand over discs of full-size files under any circumstances to studio clients.
Not exactly what you're asking, but it's our own brush with FB.
Posted by David Prichard on December 29, 2010 at 11:25 PM
Hank,
I can't, in my experience, recall any photographer getting into trouble using images for self-promotion in Canada. I think it may have been a question of attitude rather than law in that it was perceived as a compliment and a bit of free promotion for a client provided it wasn't derogatory in nature.
When my stock agency affiliated itself with several American firms several years ago I did notice a change in their requirements. All logos etc. had to disappear for instance and I do wonder if other nation's propensity for litigation means changing the way one prepares images in a global market.
IMO your stance on FB is prudent. If a client puts up an image that is their affair. The local photographer defends himself by claiming Annie Leibovitz has a FB page with her work. Haven't pointed out to him she is bankrupt.
Posted by Richard Wong on December 30, 2010 at 1:01 AM
If there was a legitimate issue with posting people pictures on FB, then hundreds of millions would be liable and thus a PR nightmare for FB. I really don't see that happening.
The foundation for it here in the US, or at least part of it, has to do with images of children in particular. Evidently posted pics of kids have resulted in stalking and worse, and many parents are nervous about letting anyone "publish" images of their kids. With adults I know one photographer (now decidedly a former photographer) who sold an image for advertising without a release and got caught very publicly by one of the subjects in the photo and was successfully sued.
We refuse to play the game because if FB used one of our posted photos for an ad even though we didn't have a release for it, we could ultimately be culpable in a suit by the subject. Even though they used the photo, FB most certainly wouldn't defend us for posting it in the first place. They might be covered by their policy, but we certainly aren't. That's the take from our lawyers, BTW.
Posted by David Prichard on December 30, 2010 at 11:30 AM
While I'm not a lawyer, logic seems to dictate that if you are giving somebody a license for work it moves it into the realm of commercial which would require a release.
When you read the rules of many photo 'contests' they usually go out of their way to absolve themselves of any legal liability. You may recall the case of the young lad who posted an image on Flickr and not knowing about rights put it up as free to use. Saatchi used it as part of a European campaign and refused to pay him. Fortunately he hired a lawyer who asked Saatchi about the model release. They didn't have one.
There are too many people who seem willing to take advantage of the lack of rights knowledge of many individuals. For legal reasons, I'd err on the side of caution with places like FB.
While I'm not a lawyer, logic seems to dictate that if you are giving somebody a license for work it moves it into the realm of commercial which would require a release.
That's a question our lawyers posed. Is posting to FB under their terms actually a form of "licensing" them to use the photos? The lawyers didn't have an answer from case law, but their "gut" instinct was that courts would rule that you had "licensed" FB to use the image as they saw fit simply by posting it.
Discussion
6 repliesFor the purposes of self-promotion photographers have always had a bit of leeway with releases not being required. Facebook states that in uploading a photo you are giving them license to use it.
While uploading images to such sites as Facebook may be of self-promotion intent, would the fact a photographer has given license to a third party now make that image commercial and require releases?
As for FB secondary uses, that's why we don't play. Over the last year or so we've had requests from clients for digital versions from sessions for their own use on FB. After much soul searching we provide them- for a fee of course- and also watermarked with our copyright notice.
We also provide only a small size (320 pixels on the long axis) to somewhat limit FB's potential to use them. Actually that's only a half-truth, or in modern parlance, "spin." We keep them small to limit our clients' potential to enlarge them because we make our "big" money on selling the prints. We don't hand over discs of full-size files under any circumstances to studio clients.
Not exactly what you're asking, but it's our own brush with FB.
I can't, in my experience, recall any photographer getting into trouble using images for self-promotion in Canada. I think it may have been a question of attitude rather than law in that it was perceived as a compliment and a bit of free promotion for a client provided it wasn't derogatory in nature.
When my stock agency affiliated itself with several American firms several years ago I did notice a change in their requirements. All logos etc. had to disappear for instance and I do wonder if other nation's propensity for litigation means changing the way one prepares images in a global market.
IMO your stance on FB is prudent. If a client puts up an image that is their affair. The local photographer defends himself by claiming Annie Leibovitz has a FB page with her work. Haven't pointed out to him she is bankrupt.
We refuse to play the game because if FB used one of our posted photos for an ad even though we didn't have a release for it, we could ultimately be culpable in a suit by the subject. Even though they used the photo, FB most certainly wouldn't defend us for posting it in the first place. They might be covered by their policy, but we certainly aren't. That's the take from our lawyers, BTW.
When you read the rules of many photo 'contests' they usually go out of their way to absolve themselves of any legal liability. You may recall the case of the young lad who posted an image on Flickr and not knowing about rights put it up as free to use. Saatchi used it as part of a European campaign and refused to pay him. Fortunately he hired a lawyer who asked Saatchi about the model release. They didn't have one.
There are too many people who seem willing to take advantage of the lack of rights knowledge of many individuals. For legal reasons, I'd err on the side of caution with places like FB.
That's a question our lawyers posed. Is posting to FB under their terms actually a form of "licensing" them to use the photos? The lawyers didn't have an answer from case law, but their "gut" instinct was that courts would rule that you had "licensed" FB to use the image as they saw fit simply by posting it.