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legal to sell photos to individuals from my website of performers

Bob Hollifield , Mar 19, 2007; 09:35 p.m.

Bluegrass photography is pretty laid back...pretty nice people. I shoot a few CD covers for bands and attend a lot of bluegrass performances, where I always shoot a bunch of shots. I am planning a website to promote my CD covers and band shots, but would like to put up some of my shots from other events. A result from this could be the sale of some photos to the public. Do I need a release or is this photo considered mine? I researched concert photography but couldn't find anything on this. Tks...bob

Responses

John H. , Mar 19, 2007; 10:14 p.m.

"Do I need a release or is this photo considered mine?"

Owning an image does not govern whether or not you need a release. You need permission of the person's whose likeness is in the picture if it is to be published for commercial purposes such as advertising.

A release is merely evidence that you have permission to publish another's likeness unless it is a contract based release. In the latter situation you promise to give or do something of value in exchange for being able to publish the other person's likeness. A verbal contract is valid but is difficult to prove. In either scenerio, a written signed release is useful evidence that you have permission to publish another's image for commercial purposes.

Researching concert photography is not a good way to research this issue because the rules are essentially the same whether the images were taken from a concert setting or not. Consult with a lawyer before enagaing in such business activities in order to obtain reliable information.

Bill Cornett , Mar 20, 2007; 09:19 p.m.

Bob-- As the previous respondent said, you own the image. However, the person in the image owns himself.

In most circumstances, you may sell the image to newspapers, magazines, or textbooks without a release, as the law allows such for purposes of "educating or informing" the public. And if you are selling a print of the image to the person himself, then that is OK, as it is not considered publishing. You can even sell all rights to the image to some third party, as in selling a collection of stock photographs.

However, what anyone who owns the rights to the images can do with them in terms of publishing or utilizing is another matter. Selling copies of an image of a performer, in a package that consists of nothing but the image, is usually considered commercial use of the image. Especially back in the 1970's, performers were suing left and right over people selling posters of them without permission, and getting big settlements (of course that's been going on for years, still is now). It's often considered a form of piracy.

And just as you cannot use the image for commercial purposes without a release, if the performer buys a print from you he cannot make copies of it without a release from you, as in using it on an album cover, etc.

However, if you should decide to put out a publication titled "Midwestern Bluegrass Yearbook 2007," and in it you have informative articles about the performers and the bands (as would any other such publication), then you would be relatively safe from any legal action, since you are using the images to "educate or inform."

Just keep in mind that in this country, you can get sued for anything at any time, and even if you win it can cost you plenty. If you get a release, you are much safer, and the image is much more valuable.

Most people are concerned that you might be making a bunch of money off of them after they get famous. Offer to give them a cut of the profits after you sell over a thousand copies or something. Tell them you need to set it at that number to get paid for time and equipment costs, etc. That way you might be able to make a modest profit and the performer gets some protection against you making a huge profit if he turns into a superstar.

Happy shooting. -BC-

Ralph Berrett , Mar 21, 2007; 12:04 a.m.

This comes down to usage. There are two types of usage commercial and editorial. With editorial you do not need a release but with commercial you do. This is a real fine point. Editorial means you can sell it for news use such as stories for newspapers and magazines but not for advertisements. Commercial means selling the image for advertisements, promotions goods or services. For example I can hang an image in a gallery for display that is considered editorial. If I were to put a price tag on it is considered commercial. To make matters a little worse if the people are famous then you have to be really careful about how the image is used. I can sell an image to a magazine but if I sell it as a poster it is commercial again. Also you have check with the venue you are shooting at. Some real strict rules as to how images are used. I hope this helps a little.

Jeff Spirer , Mar 21, 2007; 12:12 a.m.

If I were to put a price tag on it is considered commercial.

This is not correct. There are a hundred sources on the web, at least, explaining what commercial usage is. See anything that Carolyn Wright has published on the web, she's a photography attorney. Commercial usage is when it is used to sell something.

Jeff Spirer , Mar 21, 2007; 12:14 a.m.

I would add that there are additional issues with concert photography. You may need a release from the venue for certain types of usage. Often, unless you have an agreement with the venue, you are restricted by their standard rules, which may include rights to all photos taken. While not enforced by most venues, bigger ones may require some deal with them. Also, venues may have arrangements with the artists that need to be taken into account.

Ralph Berrett , Mar 21, 2007; 03:48 a.m.

The funny thing is I just had this conversation with some corporate suits the bad news is case law is really grey here. The web has not been well defined here. All though what Jeff Spirer said is a very over simplication "If I were to put a price tag on it is considered commercial", it is not that far off. To give you a really silly example the attornies dislike selling images on line, but they really hate the concept selling items with images on them items, such as coffee cups and mugs. I would recommend looking at CMPA, NPPA, ASMP and PPA sites. And reason I know part of the law is I have shot for Pulitzer, AP, Zuma Press and Lee Enterprises (Central California Newspapers) for last few years. I have done freelance for USA Weekly, Prirelli Tires and Clarke. I would also recommend "The Law, In Plain English, For Photographers" by Leonard D. Duboff


Try the NFL and Oakland for Usage issues if you want a pain.

boris cumanso , Mar 21, 2007; 11:54 p.m.

""If I were to put a price tag on it is considered commercial", it is not that far off"

It's miles off. Selling a print is not considered commercial use. There are ambiguous areas in terms of rights, but the sale of prints isn't one of them.

Joe Beecher , Mar 23, 2007; 09:14 a.m.

The difference between commercial and editorial use may hinge on if the prints are fine art. (March 24th:)

http://www.photoattorney.com/2006_03_01_photoattorney_archive.html

Numbering and printing in a limited edition is one way I would define a fine art print. Copyright and publicity rights are very different. A properly registered copyright allows you to recieve lawyer's fees if you prevail. In a publicity rights case receiving lawyers fees would be abnormal. Understand your risks, you can be sued, win, and end up with some legal bills.

Be carefull who you sue for copyright infringement. The RIAA recently was ordered to pay fees to a woman they sued whose adult daughter was the infringer. After evidense the daughter was the infringer, the RIAA failed to drop the mother from the suit. The lawyer's fee can work in both directions.

http://www.eff.org/legal/cases/Capitol_v_Foster/def_ddfost_fees.pdf

The RIAA has changed their tactics and is dropping some law suits.

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