How can Disney sell a photo of me without written permission?

[Russ Holland]

Originally Posted by Richard Alvarez

Russ, I think you missed the point of the post. The Park sold HIS KID'S picture to someone else. No one minds being offered the chance to buy a picture of themselves, the question is around the legality of shooting and selling pictures of someone to the general public WITHOUT THEIR PERMISSION.

In other words, at what point does copyright/right to publicity/right to privacy intersect such work in a 'seemingly' public forum, which is in reality a private property.

Probably did :) So how can Alton Towers sell me a photograph of me on a ride and the persons enjoying the ride seated behind me be on the same photograph? Is that the same? If it is then surely it can't be helped. Unless the other people who are buying the pics are selling them and making money from your image (which I doubt) then what's the problem?

Either that or it was a mistake by the clerk selling the pics sold them to the wrong person?

[Richard Alvarez]

"Incidental reproduction" might come into play in this case. Really, there are a lot of factors at play. But I'm guessing that the chance of lawsuits... the 'exposure' factor for the park is so much lower than the rate of return on the sales, that it's an acceptable business risk.

[Matt Buys]

After giving it some more thought, I wonder if there is some law that allows it in certain circumstances. Ie. . . wedding videographer's do the same thing when they shoot the audience without consent.

[Adam Grunseth]

If you take the photograph... you own the photograph and all the rights to it. Which means you can sell it, print it, display it in public, or even sell the rights to someone else.

Unless of course the picture was taken illegally. Such as on private property without permission of the property owner.

The wording used in U.S. law is "reasonable expectation of privacy". If you are in a setting in which you do not have a reasonable expectation of privacy.... such as out in a theme park, and the owner of the theme park consents to photography taking place... you can be photographed and that photograph can be sold.

The photographer would need your permission if you had a reasonable expectation of privacy... such as a hotel room, bathroom, locked alone in the closet, and according to some court decisions even sitting in your car.

The photographer would also need permission if they were misrepresenting the situation. For example if a caption was paced below the photo saying "park patrons plumit to their death" that wasn't what happened. In that case since the content of the photo is being intentionally misrepresented without your permission, libel and slander laws might come into affect.

[Richard Alvarez]

" If you take the photograph... you own the photograph and all the rights to it. Which means you can sell it, print it, display it in public, or even sell the rights to someone else."

Sorry Adam, this is NOT STRICTLY TRUE. You do own all the 'rights' to a picture. But people can sue for "Misappropriation of image". It's not a clear legal area. If I'm walking down the street, an you take a picture of me, and put it on your product... without my permission, I have an excellent case for a lawsuit.

There are a number of overlapping 'rights'. The photographers rights, and the individual's rights. These include right to privacy, and RIGHT TO PUBLICITY. (The right to controll the commercial use of your own image.)

Any good lawyer will tell you each situation will have differing circumstances.

[Denis Danatzko]

are there clear parameters that define a work for hire? I don't mean to hijack this thread, but when copyright & ownership are involved, it's easy to make erroneous generalizations. With that in mind, I pose this situation in hope of learning more.

Originally Posted by Adam Grunseth

If you take the photograph... you own the photograph and all the rights to it. Which means you can sell it, print it, display it in public, or even sell the rights to someone else.

Unless of course the picture was taken illegally. Such as on private property without permission of the property owner.

The wording used in U.S. law is "reasonable expectation of privacy".

Are you stating this from a position of authority? If what you state is entirely true, help me out with this situation, 'cause I'm not sure who stands where, or who owns what:

A client hires a videographer to do a shoot on private property (a shopping mall). The client also wants stills, so the videographer hires a photog to shoot the stills. There is a written contract between the client and the videographer, but no mention of using a separate photog in that contract. Also, there is no written contract between the videographer and the photog.

When the shoot is over, the photog is paid by the hour, and turns copies of the digital-still files over to the videographer, with paperwork that describes each photo and the location from whence each was taken, but no paperwork that would come close to resembling a release, license, or permission.

The videographer then prints the photos from the digital files, and charges the client for their own time, PLUS $x amount for each printed photo. The photog doesn't get a penny directly from the sale of the printed photos, (all that money is kept by the videographer), though the charge for the photog's time might be taken from the revenue from charging the client for the printed photos. (FWIW, the total amount charged for the printed photos happens to be more than the photog got paid).

Given what you state, the photog owns the photos, but this is one of those foggy, murky areas (at least in my mind).

Is that situation considered a "work for hire", or is the videographer breaking copyright law by printing and selling - and profiting from - the photos taken by the photog? Was the photog officially "trespassing" because they weren't acknowledged in the contract with the client? (Or is this simply a case of the photog "paying" for being inexperienced and naieve)? Your's truly was involved in this situation, and, as much as it may hurt to know it, I'd love to know the answer to these questions.

If nothing else, it highlights the foolish complexity of the pertinent laws as they exist today, because they are too twisted and complex for many people to understand (in this case the photog) to protect themselves through exercising the law, leaving them open to abuse such as this.

All knowledgeable and authoritative responses (and commiseration) are welcome.
x

[Richard Alvarez]

First of all, regarding right to privacy and right to publicity, here is a good link.

http://www.publaw.com/photo.html

and one with excellent examples...

http://www.kantor.com/useful/Legal-R...tographers.pdf

Regarding copyrights and "Work for hire"... well to use your term "Foolish complexity" comes into play because fools make things complex... in other words, without a clear contract, it can become VERY complicated.

Again, only an attorney, reviewing the situation you've outlined, would even attempt to give something like a definitive answer. But it SOUNDS like what you've described is a 'work for hire', if the photog agreed to turn over everything he shot to the videographer for a flat 'day rate' on the shoot. BUT there might be mitigating circumstances, and I wouldn't take that answer to the bank.

[Steve Brady]

In Disneyland Park in Paris, they always have a sign just as you walk under Main Street Station, that says "Filming Today". It's worded to make it seem as if they're shooting a movie of some sort (I think the french part of the sign says "Aujourd'hui nous tournons!") and goes on to say that if you don't consent to being photographed, then you should not pass beyond that point. I guess most people who read the sign assume that it's like a little bonus attraction - the possibility of being an extra in a movie, maybe - but my assumption is that it's actually to cover them in the situation that you describe.

I don't recall having seen such a sign in other Theme Parks, but maybe French law is different, or maybe I just never noticed the signs anywhere else.

[Steve House]

Originally Posted by Denis Danatzko

...
Is that situation considered a "work for hire", or is the videographer breaking copyright law by printing and selling - and profiting from - the photos taken by the photog? ...

I am not a lawyer. That being said, as I understand it, the simple fact of paying someone to produce a copyrightable work does not automatically make the resulting work a "work for hire" and grant copyright to the person who foots the bill. While I'm oversimplifying, it basically boils down to either a written contract that specifies that the work is be considered a work-for-hire exists or the work has been produced by a regular employee (paid a regular wage, subject to tax withholding, working under supervision and at the direction of the employer, etc) as part of the normal course of their duties. Under the circumstances you describe, I would say the still photos do not constitute a work-for-hire since there was no written agreement in effect that made them so. Copyright goes to the creator of the work, not to the person who pays for it to be created except in very explicitly defined narrow circumstances.

But while whether the work is a "work for hire" or not certainly affects the ownership of the image's copyright, there's more than just copyright that affects the right to publish the image or to use it commercially and the need for proper releases for the likenesses of people (and sometimes property) who are recognizable in it is a wholly different and very complex issue, depending on the subsequent use of the image as well as where and how it was taken. You may own the copyright to an image and still not be able to publish it if you don't have a release in hand. A photo of someone made during coverage of a news event, for example, might be perfectly fine to run without a written release on the front page of the morning paper as part of the story about the event but totally improper for Canon to run in an advertisment for the low-light capabilities of their cameras without written releases from everyone seen in it.

[Paul Tauger]

Originally Posted by Denis Danatzko

Given what you state, the photog owns the photos, but this is one of those foggy, murky areas (at least in my mind).

Under U.S. law, an independent contractor owns copyright in his work, absent a written agreement to the contrary. Conversely, an employer owns the copyright in his employees' work, absent a written agreement to the contrary.

[Denis Danatzko]

So, if I understand this correctly, it seems that, because I am not an "employee" of the vid who I worked for, nor for the property manager, I own the photos. That's good to know.

Thanks, again.

[Steve House]

Originally Posted by Denis Danatzko

So, if I understand this correctly, it seems that, because I am not an "employee" of the vid who I worked for, nor for the property manager, I own the photos. That's good to know.

Thanks, again.

AFAIK, that's right. Contrary to what some people apparently believe, the simple fact of being paid to do something does not automatically make one an employee of the person who's paying.

[Paul Tauger]

Originally Posted by Denis Danatzko

So, if I understand this correctly, it seems that, because I am not an "employee" of the vid who I worked for, nor for the property manager, I own the photos. That's good to know.

Thanks, again.

Please note that I do not (and can not) provide specific legal advice on dvinfo.net. I've stated the general rule with respect to ownership of copyright. I cannot comment on your specific situation, nor do I have enough information to be able to provide an informed opinion. There are a number of factors that can vary the rule and, without knowing a lot more about your situation, it's impossible to say with certainty who owns copyright in your photos.