debate with a photographer: what can she do with my image?

animal_cookie

animal_cookie

Bluelight Crew
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my cousin's girlfriend took photographs at my wedding in place of us paying a wedding photographer. our understand was that she was doing it for practice/niceness and that she would give us the full sized images for free. this was all discussed verbally, there were no contracts or anything signed.

she is now refusing to release the full size images unless we pay her $300. i assume she is allowed to do this since she took the photos (altho its a bitchy move IMO). but if she wants to use the images in the future, for class or for her website/portfolio or any other benefit to her, is she actually allowed to use my image or these photos?

i've looked up various things online but everything i googled is geared towards what rights models or celebrities have over their image. i wasn't really modeling for her, and i am most definitely not famous, so i am rather confused about my rights.
 
Probably not, but what a cunt haha.

I can't believe how much people get ripped off for pictures you could easily take oyurself.
 
You do not have a legal say in what people can do with photographs of you. Sorry, you don't own your own "image". If you're in public and someone records you, the recording is theirs. In some states audio recording and/or video recording can be illegal without consent, but I think still still photographs are always owned by the photographer.
 
Ason Unique said:
Probably not, but what a cunt haha.

I can't believe how much people get ripped off for pictures you could easily take oyurself.
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I think a_c had better things to do - like be a gorgeous bride - than worry about photographing her own wedding. :\

If you discussed with her that she would give you the full-sized images for free, that IS a contract even if it is not in writing. I would send her a certified letter reminding her of that conversation, and if the pictures are not delivered in a reasonable span of time (maybe 30 days max) you reserve the right to take her to small claims court.

I don't know if you could obtain an injunction against her using the photos in her portfolio, but you can certainly enforce your rights under an oral contract. If you signed no release, I think the law is on your side, not hers; IANAL.

I hope her nastiness did not put a cast on your happy day. I saw the photos taken by others that you posted, and you were a radiant, beautiful bride - my congratulations to you both again. <3
 
Coolio said:
You do not have a legal say in what people can do with photographs of you. Sorry, you don't own your own "image". If you're in public and someone records you, the recording is theirs. In some states audio recording and/or video recording can be illegal without consent, but I think still still photographs are always owned by the photographer.
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As Mariposa points out, I think you have to sign a release or other agreement before a photographer can commercially exploit your image. Without a release, you can't stop the photographer from viewing the photographs of you that she took, but you can prevent the photographer from selling prints of them, posting them on her website for commercial use, etc. Unless you consent otherwise, which is typically done through a written release, you own the rights to your image if it's used commercially.

Did you sign a contract with her? It's pretty common for photographers to post their best images on their website as a demonstration of their abilities; I can't remember if the contract I signed with my wedding photographer allowed for that.

Practically speaking, however, it might be worth paying $300 just to prevent her from deleting your photos if the dispute becomes heated. I'd rather be out $300 and have full-quality images of my wedding that I could print and frame, or that I could put on the web, than to have her say f-you and delete them. It may not be fair but it's the smart move. That would be more important to me than stopping her from putting her best shots of you on her website to sell her photography services.
 
Coolio said:
You do not have a legal say in what people can do with photographs of you. Sorry, you don't own your own "image". If you're in public and someone records you, the recording is theirs.
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That's not entirely true, especially if someone is using your likeness for a commerical purpose. The laws vary by state, but if you are shooting something that is not in the public interest, you generally do not have an unfettered right to use it for commerical gain without consent from the person being photographed. This would fall under the misappropriation of likeness/invasion of privacy area of tort law. The big problem is that in many of these cases it is difficult to prove damages (i.e. loss) by the person being photographed.

The second claim would be breach of contract. As mariposa mentioned, a contract need not be in writing in order to be legally operative. If she was not promised anything in return (like a wedding invitation or payment), I guess that could make it a gift contract, and I'm cannot remember what the rule is on this. It wouldn't give her a right to use the photos commercially, regardless.

Assuming it's not worth suing over this -- time, energy, heartache, risk of photograph deletion, etc. You can still tell her that you relied on an understanding that as a wedding guest, she would be the designated photographer. You can still tell her at no time did you grant her license to share the photos with a third party. And then maybe suggest a compromise to settle things -- $200, $100. It was still a crappy wrong thing for her to do, but you'll have to decide how far it's worth pushing.
 
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i do not care too much about the images, several other people had cameras and took photos. my friend's wife actually took some really high quality, awesome shots and she was going to give them to me anyhow. the only thing missing are shots of the wedding party before the wedding party but i have photos my dad took. i am not going to pay her, if she deletes them, then she wasted her time and i still have pictures from other people.

i signed no contract or model release, it was all verbal agreements. she she had a new camera and mentioned that she was trying to get into the wedding photography business. at first, she wanted $500 but then i said i would pay a professional photographer. after some back and forth, she agreed to take the photos and give us the full size images (not just proofs) as experience since she had none.

so would her selling the full sized photos to me be considered her commercially exploiting my image?
 
animal_cookie said:
so would her selling the full sized photos to me be considered her commercially exploiting my image?
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i don't think so, because it wouldn't be violating your interest in personal privacy. the law is different depending on state. what state was the wedding in?

the wedding photos you posted in another forum look fantastic, btw
 
i have no desire to sue her but i am wondering if a strongly worded letter (like mariposa suggested) would be effective. something explicitly stating that i do not grant her the right to use my image, nor that of my husband, for profit and that she is in breech of our oral contract. is there any specific language/terms i should in the letter?

what is a certified letter?
 
the wedding was in OH, cleveland to be exact.

and thanks for comments on the wedding photo compliments :)

(this not being able to edit posts is getting annoying!)
 
I think one of the main question is if this is a gift. I remember reading a promise to make a gift is unenforceable because there isn't consideration. Doughery v. Salt.

However, I can think of two situations which wouldn't make this simply a gift: 1. she intents or does use your pictures in her catalog and/or 2. you can make the argument that the experience she gained by photographing your wedding gave her a benefit. Hamer v. Sidway.

Was she getting an invite without being the photographer? Or as someone I think already asked did she get an invitation to enjoy the wedding based on her willingness to take photos? If she wasn't already invited I think clearly a bargain was made regardless of the fact it wasn't written down. Her benefit was going to the wedding (nevermind the fact that she got to up her skill with taking photos) and your benefit was to get the wedding photos.

These are fairly basic cases/theories and I sort of sucked it up in Contracts last year so I apologize if I'm wrong.

Regardless, I hope she stops holding your photos hostage. :)
 
she would have come as my cousin's guest regardless of the photos. the two had RSVP'd long before the idea of her taking pictures came up. and she was treated like a regular person at the wedding, as opposed to the DJ who got some random meal and couldn't drink at the bar.

i was being stubborn and picky and not wanting a wedding photographer (because of not that great photos and less then stellar service my friends experienced). so i guess i ended up getting what i wanted :\
 
animal_cookie said:
i have no desire to sue her but i am wondering if a strongly worded letter (like mariposa suggested) would be effective.
what is a certified letter?
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Certified letter basically means that the person who the letter is sent to has to sign to receive the letter, think a UPS delivery. Why not write her a letter and be nice, you might get rewarded. If I was having 'negative' issues surrounding my wedding I know I would do anything in my power to flip it to positivity so my marriage doesnt have any shred of a dark cloud when its first starting out.

Peace,
Seedlesss
 
Another remedy of law which might help you is called "promissory estoppel". It basically breaks down as such:

1. there was a promise - take and give the photographs to you
2. you relied on this promise - since your reliance on her to produce the photographs result in inaction (not getting another photographer) rather than action (say, for example if you bought a ton of really expensive frames for the photos) I'm not sure if this element is met. It might be.
3. the failure to fulfill the promise caused detriment (injury) to you - wedding photos are probably regarded by most people including lawyers and judges as a valuable item.

Additionally, I think the fact that it's a gift in promissory estoppel is irrelevant in Ohio.

One thing I find troublesome is I'm not sure if the specific performance (making her give you the photographs) is a a remedy to promissory estoppel cases. If I remember right the only thing that you may be is money damages.

Other, more savvy legal minds, please correct my elementary knowledge on this stuff. :D
 
If the photographs exist, specific performance would likely be a remedy in this instance, given the special nature of the goods sought.

I could see a contract theory here in addition to promissory estoppel, in that you promised to give her a certain position and privileges at the wedding, which she clearly considered of value, in exchange for a promise that she would make you the prints.

There are a variety of torts you can allege as well.

From a copyright vantage, she has copyright to the photographs. The implications as to whether she can display them for commercial or personal benefit are a little trickier.

Insofar as practically resolving the matter, I think Banquo's advice is sound. You want the prints, she wants some compensation. If you'd like to go after the money after the fact, that is an option, though that gets tricky.

Another option is for both of you to agree on a trustworthy individual, and, after you each deposit a certain amount of money with that individual (300 dollars in your case, and money and data sufficient for someone to make full prints of her photographs in her case), allow that individual to determine a fair outcome. I should caution that the individual is likely to simply split the difference.

[edit - also, I'd recommend talking to her face to face if possible, or otherwise over the phone. you are far more likely to resolve the matter with that level of communication rather than through letter or email.]
 
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I dunno whether this is still an ongoing situation or not. In short, I still think it's best to settle all of the issues by communicating with the photographer. If you never want to talk to the photographer again, a simple letter reminding her that you in no way authorize the publishing of the photos in any journal, web site, magazine, or portfolio should do the trick. Proof of letter delivery is an extra $2 or $3 at the post office.

Below is an excerpt from Ohio law on the subject.

I don't know whether you would be considered a protected "persona" under the law. In some states, you must be recognizable to have a some of these protections. But the fact that this was a private occassion with zero newsworthiness and there was no consent given to the photographer certainly helps your cause. This is why most wedding photographers have a standard clause in their agreements which permits them to publish the photographs they take.

§ 2741.02. Unauthorized commercial use of individual's persona; exceptions

A person shall not use any aspect of an individual's persona for a commercial purpose during the individual's lifetime or for a period of sixty years after the date of the individual's death.

(B) A person may use an individual's persona for a commercial purpose during the individual's lifetime if the person first obtains the written consent...

(D) For purposes of this section:

(1) A use of an aspect of an individual's persona in connection with any news, public affairs, sports broadcast, or account does not constitute a use for which consent is required under division (A) of this section...

(E) The owners or employees of any medium used for advertising...are not liable under this section or section 2741.07 of the Revised Code unless...those owners or employees had knowledge of the unauthorized use of the persona as prohibited by this section...

§ 2741.01. Definitions.

(A) "Persona" means an individual's name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value

http://law.justia.com/ohio/codes/orc/jd_274102-9711.html
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thank you banquo :)

i am hoping to write up a letter this evening and send it on monday. she is ignoring calls from my parents, cousin and husband.
 
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