Friday, November 25, 2011

Can Photographer Control Photos From Fashion Shoot?


Dear Sir/Madam: I am a freelance photographer and I am also working on an upcoming online fashion magazine. Recently I organized a photo shoot with a few models I have founded via Internet and a designer who agreed for the models to wear his clothes for the photo shoot purposes. The designer refurbishes and sells branded clothes. Everyone agreed to the photo shoot on these terms:
  • Everyone gets the photos for their own usage 
  • I will use the pictures however I want, and also the ones I choose will be featured in the online magazine 
  • No fees charged on anyone including models, designer and myself 
It's a verbal agreement with everyone and not written. It may not have any value in the eyes of law. Now however the designer (the person who allowed us to use his clothes for the shoot) is giving me trouble setting me deadlines and choosing the pictures I can use for the magazine or anywhere else. I want to use the photos that I want to use, the way I want to use them and whenever I want to. He claims it would be illegal if I used the photos anywhere without his permission and supervision. He hasn't got any photos from me yet so he can't use any either for his own purposes. I would like to know whether I am allowed to use the photos that I took that day, the way I want to and without any restrictions. Or would I have to at least mention his name or his shop's name? We haven’t signed any copyright releases etc. Also would I need to get the models release if I want to upload the pictures? I would like to add that the photos will be used for editorial purposes only and non-commercial. We're back with the "Dear Sir/Madam" that starts your letter. What prompted your uncertainty as to gender? Can Rich be used as a woman's name? There is a female equivalent for Richard -- Richelle (and we were excited to see that a Richard and a Richelle recently married). But we're not clear whether a woman writing this column would be addressed as Dear Richelle, or Dear Rich (or perhaps the more endearing Dear Richie). As a further digression, our research unearthed some surprising data regarding the number of serial killers named Richard.*
Right, you had a question. Unless there is a written document evidencing copyright transfer, you, as photographer own copyright in the photos. You control the reproduction and distribution and you're free to choose and reproduce the photos you want for your magazine. If the verbal agreement is enforceable -- that depends whether there is sufficient evidence to prove the terms and conditions -- you would have to abide by those terms, as well. Even if the verbal agreement is valid, it doesn't preclude you from doing what you want -- choosing the photos you wish to use in the magazine. (And you would be obligated to provide copies of the photos to the other parties.)
Do you need to mention the designer? We're not sure why you have to mention the designer or the designer's store, unless you're contractually bound to do so. The designer has no copyright in clothing design unless he's stitched in some unique artwork--for example, he's added intricate needlepoints. In any case, it might be a nice professional touch to credit the designer as fashion readers expect that information.
What about model releases? Releases are needed to head off two types of problems: invasion of privacy (you may be invading the model's privacy, for example, by showing her partially nude); or violation of the right of publicity (you're using the model's image to sell something). Typically, editorial non-commercial uses wouldn't trigger the right of publicity but with Google AdSense and similar Internet schemes, it's difficult these days to tell sometimes whether an image is being used for commercial exploitation.

*Serial killers named Richard: Richard Angelo - The Angel of Death, Richard Biegenwald - The Thrill Killer, Richard Chase - The Vampire of Sacramento, Richard Cottingham - The Torso Killer, Richard Macek - The Mad Biter, Richard Ramirez - The Night Stalker (and speaking of notorious killers, there's also Richard Loeb (of Leopold and Loeb infamy).