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Just saw my image on a billboard without permission,,,Now what?

Diane McG , Jun 03, 2010; 08:17 p.m.

Several years ago I photographed a famous person visiting a local business. I have many images from the event so proving it is mine is not a problem. I sold a copy of the image to the business owner for him to display at his business. I just saw the image, on a public digital billboard, in his billboard ad.

I think I have several problems. The business owner buying the digital billboard ad did not contact me for permission. Had he done so, I would have advised him I, as the photographer, would need permission from the famous person to use her image to advertise his business. I feel like I am in "trouble" no matter how I approach this...and am not sure where to start..... I bet the advertising company has been paid a significant amount for this ad.

Suggestions on where to start would be appreciated. I have had several situations lately where professional individuals purchase images, but end up copying them for additional use. Is there something simple to include with purchases to clearly state you do not have permission to copy images......
Thanks, Diane

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Matt Laur , Jun 03, 2010; 08:59 p.m.

You don't mention what country you're in, so it's a bit of a guess about what laws may apply ... but: typicially it's the advertiser (not the photographer) that can get in trouble for using someone's likeness like that without permission. Advertisers will frequently turn to the photographer as a potential source for that signed release document, but you're not going to be in hot water personally because someone else decided to mis-use a celebrity's likeness in an ad.

Yes, on your last question: you need to include specific license language in the paperwork you do with your clients. The wording of such licensing can get very complex (including and excluding specific uses, time periods, morals clauses and all sorts of other things). If you join a professional society, you may be able to get some resources along those lines, or ... hire a lawyer to help you draft your routine language.

I'm not a lawyer, I'm a caveman. This isn't legal advise, it's cave paintings.

M M , Jun 04, 2010; 08:08 a.m.

Well congrats!
I had a picture on a bilboard only once! Felt great!
Didnt really question the bilboard it was a marketing campaign where I work as a photog.

Mikael Karlsson , Jun 04, 2010; 10:23 a.m.

Diane:

What does your original contract with the business owner say about usage rights?

Frank Scheitrowsky , Jun 04, 2010; 06:58 p.m.

I'm guessing there was no original/written contract with the business owner?

Kevin Delson , Jun 04, 2010; 08:28 p.m.

Is there something simple to include with purchases to clearly state you do not have permission to copy images......

Kinda' closing the barn door after the horse is out.

Your question is answerable once we see what your contract looked like.

as the photographer, would need permission from the famous person to use her image to advertise his business. I feel like I am in "trouble" no matter how I approach this.

Nope. Wrong. The business who placed the ad is at risk unless you indicated you have releases that do not exist..
It's a legal question and yes; in really big commercial cases, the attorneys will go after anything that moves, but you are probably quite safe.

Bobbi Petersen , Jun 05, 2010; 07:21 a.m.

... I would be flattered :)

Mikael Karlsson , Jun 05, 2010; 11:01 a.m.

Bobbi:

You'd be flattered if someone stole your work and used it without permission or compensation? Wow, that's kind of like Dick Cheney's buddy apologizing for getting shot (by Cheney) in the face...

If the image has indeed been used without permission, which we can't really say until we can see the usage terms that were agreed upon initially between the photographer and the business owner in question.

Parthasarathi Chakrabarti , Jun 06, 2010; 01:29 a.m.

I think you should contact a lawyer.

Ian Ivey , Jun 07, 2010; 06:15 p.m.

Well, you might contact a lawyer if you're concerned about being compensated for this use of your image, but at least in the US, Matt is correct: the business that chose to link the celebrity to its name is the one that is liable for misappropriation, not the photographer.

That doesn't mean the celebrity, if she finds out about this use of her image to promote your former client's business, can't name you in a lawsuit, but if that happens, then your lawyer (you know, the one you'll retain if you are named in a lawsuit) will move to have you removed as a party.

You're asking good questions. Can you word your contract to help prevent this kind of misuse? Absolutely. Comb these forums for other threads that talk about use, misuse, infringement, contracts. Dozens of threads here discuss the issue and provide outside reference material as well. Get a copyright and contracts lawyer to help you draft good modular contract language you can insert as appropriate.

For now, you might consider writing the client a letter, sent certified mail & return-receipt-requested, with a copy of your original agreement governing the use of that image if you had one (if it was a verbal agreement, restate it in the letter as you understood it).

In this letter, you could point out that your original agreement allowed only display of the image inside the establishment (or whatever it did allow), and that reproduction permission was not part of the agreement.

You might then do one or both of two things:

  1. offer to license public reproduction of the photo in public advertisements such as billboards and other public displays for a fee, or
  2. demand that the client immediately cease reproducing and using the image in any way not envisioned within the original agreement.

If you choose option 1 (to license the current and future public use), you might also consider stating that:

  • to your knowledge, no model release or likeness release was signed by or obtained from the celebrity,
  • the law generally requires that the party implying endorsement obtain such a release prior to using someone's image in a way that implies any kind of endorsement of goods or services, and
  • the client assumes sole liability for any action arising from his use of this image, and agrees to indemnify the photographer against any action or liability arising from his use of the image.

You would, of course, want a lawyer to word this contract carefully for you.

I can only imagine how loud it must have been in your head, when you saw that image on the billboard, and all those different voices in your brain started shouting things at once. What a day!


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