Photographer's response to photogate
2.12.10 by Buffalo Bill
Here is the email response from S.v. Luma, the photographer to an email from Corey:
I am wondering if you are his representative, or lawyer, or just a friend? We took this picture on the street, and the person is unrecognizable. There are no logos anywhere in the photo, and his face is blurred as well. It might as well be someone else with the same shirt and bicycle.
Shutterstock accepted this photo without a model release form because the person is unrecognizable, it is in their company policy. So let Marco contact me personally if he wants, if it is him in the picture, and we will start a dispute with Shutterstock. They have the rights to this photo; I don’t have them any longer. If you look at the photo, Shutterstock’s copyright is on the photo.
In the photo I am attaching, on the right side it says release information: N/A. If model release was necessary, I don’t believe Shutterstock would have accepted the photo.
Corey says: No release form was signed. Bingo!
An relatively well-informed view from a comment on the original post follows:
There are a few misunderstandings here – let me help. What you are talking about ain’t copyright – it’s called model release (MR). Good (long) info is here: www.danheller.com/mo…
The bottom line is that people have rights for how their “likeness” is used by others to promote ideas, products, services, or things. The way to give consent with using one’s likeness is to sign a MR.
1) MRs are only necessary for commercial application (i.e. advertising) and not for editorial (news, illustration).
Grey areas exist (e.g. illustrations in books), but this is not one of them – TICK.
2) Only necessary to protect “likeness”. I haven’t seen the picture – but it says above that his face is blured. If you can’t see his face clearly, you could dispute that Kenda’s using Marco’s likeness – they may argue that they are using a generic faceless commuter. This is a tricky point in this case – just how recognizable is he??? can you only tell it’s him, cos you know his bike/clothes? Bikes don’t need a model release.
DISPUTABLE, NEEDS EVIDENCE.
3) MRs are 100% the publisher’s responsibility. The photographer is only responsible for being honest about the (non)existance of a MR to the client. As per 1) above – the picture can still be sold for many applications even without a model release (e.g. news). It’s not Kenda’s responsibility or fault – it’s that of the agency who did the ads and possibly the publishers of those ads.
FAIL – Talking to Kenda is pointless in every way other than them being ‘nice’ about somebody else’s fuckup.
So for example – when me, Farid, Roxy or Selmski rock up to an alleycat and take photos of everyone, which we later upload to www.bicycleimages.co… (or any other stock image library) – we have to say whether we have/haven’t got MRs, making the intended use of the photo editorial and/or commercial. That’s where we lose control. Whoever buys that photo will do whatever they want to do – whether or not they decide to stick to the rules or break them…
Marco can sue the publisher/agency (not Kenda) – but it’s not an easy process. Plenty of similar cases on the interweb to learn from.
At this point I am thinking: middle-aged spanish guy on a horse, brandishing pointy weapon at large building whose purpose is reducing previously harvested grains to fine powder.