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Photography Question 
Lee Lamarche
 

Selling pictures of children w/o permission


We know a photographer who sells on Smugmug. Recently a pictures were taken of our child and others at a lake and now the pictures are on Smugmug for anyone to buy. We did not want any pictures taken, and definately did not want any put on a web site anyone can see, let alone buy.
Are there any rules about selling or posting for sell pictures of people who have not given permission?
Thank you


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9/13/2007 4:09:06 PM

 
Jennifer Harden
BetterPhoto Member Since: 7/1/2004
  The very breif answer is normally yes - they can. Unless you can prove libel or that they trespassed onto private property to take the pictures, there is no law that has been broken. That's how the paparazzi can do what they do.

As I said, this is the very abbreviated answer as this has been discussed LOADS on this forum and others as the laws are fuzzy. However, if there was a way to stop someone from taking your picture and selling it People, US Weekly and the Sun would be out of business.

Sorry.


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9/14/2007 6:33:58 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  I have to disagree with Jennifer on this, and I may be wrong. Mark F. would be a better one to answer this. As I understand it, if the photo is taken of something newsworthy then a model release is not needed. If the photo is taken for posting on the web, monetary gains, etc. and the person/persons are recognizable, then a release is needed. In the event those people are minors then a parent must sign a model release.

Therefore, if you didn't sign any kind of release, this person cannot legally sell these pictures.

The only other way that would possibly make this legal was if there were a sign placed at the entrance stating that by entering the premises you were granting the photographer usage rights.

As with any legal advice given, we are not lawyers and you might need to check with an attorney.

If he is in the wrong you may want to start by either you or your attorney sending this person a letter to cease and desist. That will probably get their attention and they will stop.


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9/14/2007 6:51:32 AM

 
Jennifer Harden
BetterPhoto Member Since: 7/1/2004
  This weekend I spent days reading about all this stuff from several places including a link I thought was posted on this site but now I can't find it. Basically, it was saying unless you can prove libel the photographer can do whatever they want with the image, even if you're identifiable. It's the person to whom they sell the photograph that may be responsible if they use it in some way that damages you.

For example, a photographer takes a picture of a kid feeding ducks at the lake. They sell it to a stock image company who then sells it to the Army Corp of Engineers who uses it in a pamphlet about the dangers of feeding wildlife. The parents of the kid can sue the Army Corp arguing that they are portraying the image of their particular child as harming wildlife. The Army Corp wouldn't have a case against the photographer who took the image as they didn't libel the kid. It's my understanding that the WAY the image is used is what caused the damage.

Again, I'm a novice to a lot of this but, if you CAN'T sell someone's image for profit without their permission why do celebrities allow pictures of themselves, sometimes sans undergarments, to be printed without suing them? If there was any way they could stop it, wouldn't they, especially when you consider all the high-priced lawyers they have working for them? I know this is an extreme example but the same laws that allow papparazzi to do what they do also protect us.

Mark seems to be knowledgable about this stuff and he may have been the one who posted the link to the VERY lengthy website that has all the info I read.


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9/14/2007 7:47:32 AM

 
Irene Troy
BetterPhoto Member Since: 5/27/2004
  While we wait for Mark F. who, as a legal eagle, has a much better handle on this type of thing I will answer from what I know about photographing children without parental permission. The short and sweet of this is NO! Photographs of children are held to a somewhat higher standard than photographs of adults. If someone photographs your child, even in a public space, without your permission and then attempts to benefit from selling this photograph or using in it in any manner, this is not permissible. The reason for this differentiation is simply to protect children from exploitation. I was taught that if you are a public figure politician, actor, etc. your image and even the images of your children may be used without specific written permission; however, even then there have been many court cases on this very issue and often the media outlet comes out on the losing end. If you are not a public figure and someone took a picture of your child outside of an organized activity (little league, ball club, etc.) and is now selling that image, they are in violation of the law. If I were in your shoes Id approach the photographer and request that s/he immediately remove the image from their display. I would also contact smugmug and alert them to the situation asking for their assistance.

Hopefully Mark will respond to this thread correcting any errors and explaining the law in a clearer fashion.

Irene


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9/14/2007 7:58:35 AM

 
Debby A. Tabb
BetterPhoto Member Since: 9/4/2004
  Lee,
We also have a Real Atty here at BP, you may want to check out her web site and maybe think about shooting her off a email.
Carolyn Wright's Photo Atty Site:

http://www.photoattorney.com/

I read her book and it's great!!

I hope this helps,
Debby Tabb


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9/14/2007 8:19:50 AM

 
Debby A. Tabb
BetterPhoto Member Since: 9/4/2004
  Oh and by the way,
as a Family Portrait Photographer, I can tell you that with out a signed release from you and other parents, this Photographer has put themselves in jeopardy.
you definatly have a complaint, but again check it out with a real atty.

Best of luck,
Debby


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9/14/2007 8:27:04 AM

 
Gregory LaGrange
BetterPhoto Member Since: 11/11/2003
gregorylagrange.org
  "if you CAN'T sell someone's image for profit without their permission why do celebrities allow pictures of themselves, sometimes sans undergarments"

Celebrity news is still news.
I think you're not recalling everything you read clearly. Stock companies require releases, and photographers that deal with them are required to provide them. If an example like the army corp did happen, then a parent could follow the chain of command on down to the photographer if they had the time, money, and desire to pursue to the to less deep pockets end of it.
However, you can shoot stock of celebrity, and other news type people and sell to stock companies for editoral use without releases, such as red carpet photos, because stock companies do provide those type of images also.
In regards to selling photos as art work, individual prints for a personal collection, as in buying prints from Ernst Haas or Henri Bresson, then you may have something in needing to prove libel and damages.
It's even been said by one of the female instructors that if you were doing a photo book, such as one about New England, you don't need releases. That surprised me and it may not be accurate even though it came from somebody who is working as a professional.


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9/14/2007 8:44:00 AM

 
Kerry L. Walker   Sorry Jennifer but you are dead wrong.

1. Can anyone take a picture of you or your child on PUBLIC property without your permission? Yes, they can. However, they cannot sell those pictures without your permission, unless it is newsworthy and they are selling them to some type of news publication. Private property is another story. Can't take them without permission of the property owner. (Try taking a picture of some child other than your own at Disney World.)

2. Can a photographer take a photo of a public personallity (celebrity, politician, etc.) in a PUBLIC place and sell it without permission. Sure they can. However, they cannot take a photograph at a PRIVATE place and sell it w/o the permission of the subject. That is why tabloids get sued and lose. The subjecty was on private property.

3. Notify Smugmug that the picture is of your child, that no model release was provided and that you want to photo taken down and the photographer notified.


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9/14/2007 8:59:17 AM

 
Gregory LaGrange
BetterPhoto Member Since: 11/11/2003
gregorylagrange.org
  Just did some reading, and it says you can sell photos as prints as fine art.
And you can sell as a book of photos, that is also considered editorial/fine art.
As to the smugmug pictures, try asking the photographer to take the pictures down. If it's done at first without anger, it may be that simple.


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9/14/2007 9:14:53 AM

 
Gregory LaGrange
BetterPhoto Member Since: 11/11/2003
gregorylagrange.org
  I'm also assuming that the picture on smugmug is of your kid and not a landscape where you can see your kid in it.


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9/14/2007 9:31:27 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Gregory,

Is that a PB&J sandwich. I'm hungry.


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9/14/2007 9:49:08 AM

 
Jennifer Harden
BetterPhoto Member Since: 7/1/2004
  As I mentioned earlier, the laws aren't very clear on this as it's my understanding that the intention of HOW the photo will be used is what determines the need for a release. I think Gregory may have read some of the things I've been reading (endlessly it seems) there are TONS of information about this on the web and most of it contradicts something else.

Whether or not s/he is actually breaking some law is not clear. However, most professional photographers get a release to protect themselves just in case. Also, if someone asked me not to sell a particular photograph of their child I would absolutely honor it. I'd contact the photographer and smugmug and just ask them to take it down.

Good luck!


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9/14/2007 10:02:54 AM

 
Gregory LaGrange
BetterPhoto Member Since: 11/11/2003
gregorylagrange.org
  Burnt raisin bread.


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9/14/2007 10:07:02 AM

 
Todd Bennett
BetterPhoto Member Since: 11/8/2004
  Just lost my appetite!


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9/14/2007 10:07:42 AM

 
Mark Feldstein
BetterPhoto Member Since: 3/17/2005
  Based strictly on your question, the best response I can offer you Lee, is the photographer and anyone connected with creating or producing the Smugmug MAY be liable for damages since this work is obviously commercial and was published without a release. There are, however, a lot of variables concerning particular laws on privacy of adults and minors that vary from one state to another. No single lawyer, anywhere insofar as I'm aware, knows all the infinite variables and nuances of one states laws over another.


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9/14/2007 10:10:25 AM

 
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