Legalities- photos into art

Discussion in 'General Shop Talk' started by Rift485, Feb 11, 2010.

  1. Rift485

    Rift485 TPF Noob!

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    I have been doing a lot of reading today to try and figure out if I would legally be able to sell photos that I have taken of a band in concert. My intention is to create artwork in the form of framed and unframed prints which can be displayed in people's homes, offices, etc. I came away with a great deal of knowledge and a great deal of questions so bear with me. I will start with a description of these photos along with what I have learned so far.


    These photos were taken by me in what I believe to be "private" locations (concert arenas) where I had to pay admission. I do not have releases from anyone (band, venue officials, etc). The subjects are a band that is probably unrecognizable to the general public but is very popular in certain sectors of society that aren't so-called "mainstream". I have unedited and edited versions done with digital editing software. I am hoping that someone can help determine which, if any, should be legal to sell on ebay, craigslist, and potentially my own website down the road.

    I will ask about the most straight forward examples first; the unedited shots. In almost all of them, the band members are recognizable either by their faces or by physical shape, clothing, etc. At first I had thought it was cut and dry: You cannot sell images of celebrities without a model release. After reading from a few sources, I found different information:

    (Taken from Model Release Primer)




    This source states that you do not need releases to sell your photos but many photographers get releases in order to make selling to publishers easier. If a publisher knows the photos have a release then they don't have to go through the motions of attaining one. He draws the line at the publishing stage. Selling photos (art prints) does not require a release but publishing them does. How much truth is there to this?

    Another user posted this comment which seems to align with the above source:




    But then what category does what I am trying to do fall under (printing and selling band concert photos to individuals)? I would be simply offering images for sale but it could also technically be labeled a business because I am trading goods for money, and would probably create a "business name" that could be used on a website.

    Then we get into the issue of self publishing. If publishing photos without a release is illegal, is what I would be doing considered publishing? The author of my first quote gives this example:

    (Taken from Model Release Primer)




    It seems that his first quote says that selling your photos on your own is not publishing but in the second quote says it can become publishing if your artwork becomes too popular? Can it really be this gray here?





    Now let me move on to the type of photos I have been creating that have brought me to this point: Edited concert shots. I came across this quote which sounds like I would be ok:

    (Taken from Using the Name or Likeness of Another | Citizen Media Law Project)


    This author gave the example of Barbara Kruger who took the supposedly well known photograph of Charlotte Dabney below and added the red blocks of type. When she was sued, she won the case because of the edits that she did. She made the image of this famous person her own:


    [​IMG]








    Here is an example of one of my pieces, first unedited and then edited:




    [​IMG]









    [​IMG]





    My questions are still along the same lines, just more focused on the edited version rather than the original photo. Does this qualify as "transformative artwork", and will I be able to sell on ebay without repercussions? Does it matter whether or not I include the band name in the item listing or even insert it right into the photo? Remember, we are still assuming I am selling to individuals and not stock photo companies, magazines, etc., for private or semi-private display.







    Ok, if you are still with me, thank you for reading. I know this was a long post with a lot of questions, some of them subjective, and I am not looking for any true legal advice, only fellow users' opinions.

    Thanks!!
     
  2. cirekoy

    cirekoy TPF Noob!

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    I work for a company that deals with this on a semi-daily basis, since we reproduce art on canvas. Some of our art clients actually sell images of famous celebrities, and I know they have licensing set up with these individuals.

    Here's the deal: it all comes down to getting sued. If you have an editing piece and you don't identify the band, you're probably in the clear. In the example you showed of the edited piece, I think it's transformed enough to be considered art.

    If you'd like to sell it using the band's name (or would like to sell it unedited) try to get in touch with the band or their label. If they don't return your calls or they ignore you...keep a copy of all your communication to show you at least tried. If they want a cut, ask what they can do to help promote you, they might be able to get you in touch with a lot of people interested in purchasing such art work, a win-win relationship. They may even work out some sort of deal where the band signs each reproduction, who knows!

    It also depends on how much you're selling them for, and how you sell them. If you are trying to capitalize on the band's name, they aren't going to like that. They don't want people using the band's name to sell products unless they get a cut. Sell the art on its own merit and keep the band's name and brand as secondary elements.

    I think that your efforts to research this are highly admirable. But if you are planning on using editing images and are also doing this on a somewhat small scale, chances are no one would even find you. If they did, they have to weigh the cost to sue you (which is pretty high) with the benefit (which is pretty low). Chances are they would just tell you to stop, if anything.

    So my non-legal advice is to just go with it, do what your gut tells you is right, and don't worry too much about getting sued. Save 20% of your profits, just in case they call you up and say they want a cut...nothing silencing complaints like a check.
     
  3. Rift485

    Rift485 TPF Noob!

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    Thanks for the reply. I tried to do as much research as possible because I know that getting into legal trouble would basically render my efforts useless as I do not plan on getting rich off of this.

    I think what I would like to do is put a few of these up for sale and see what happens. It would be difficult, obviously, to sell many prints in the beginning without using the band name, but I guess that is why it is less risky. Do you think starting on ebay is too visible a method?
     
  4. cirekoy

    cirekoy TPF Noob!

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    You should be okay...especially if you modify the image in an artistic way as you showed. I'm no lawyer of course, that's just what I'd do if I were in your shoes. Good luck! :mrgreen:
     
  5. Rift485

    Rift485 TPF Noob!

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    Welll, I printed it out and put a nice frame on it. Hopefully it is desirable and call sell, at least on a small scale. Let me know that you think. It has a 3/4 black wooden frame with glass covering. Nothing too fancy in regards to UV etc but very nice by standard poster/picture standards.



    [​IMG]
     
  6. KmH

    KmH Helping photographers learn to fish Supporting Member

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    Your profile doesn't say where you're located. In this instance it could matter a great deal if you're in California or New York, the 2 states that have large entertainment industries.

    So without further ado, what follows is basic info/opinion and should not be considered reliable legal advice:

    1. Online is the wrong place to seek reliable legal advice. A consultation with a qualified attorney is not all that expensive.
    2. Model and property release laws vary by state.
    3. Dan Heller is not an attorney.
    4. Investigate "Right of Publicity" and how it relates to 'celebrities' and what constitutes a 'celebrity' in your state.
    5. If Phish is the name of the band, and you're about to advertise that poster nationally on eBay, IMO you should retain a good intellectual rights attorney now ;), so he/she is up to speed when Phish's attorney(s) start the proceedings by laying a C&D order (Cease and Desist) on you and a DMCA takedown notice on eBay. (Digital Millennium Copyright Act).
    Good luck with your new business venture. :thumbup:
     
  7. Rift485

    Rift485 TPF Noob!

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    KMH Thank you so much for your response. There are so many variables in my case (different locations of taking photos vs selling, photo editing strategies, identifying the band in the artwork, etc) so it has been very difficult to know the correct course of action here without attorney intervention.

    These shots in particular were taken in Connecticut while others were taken elsewhere (although none in NY or CA). I am not a legal expert by far and did find some research on the right of publicity for MA and I was hoping you or someone can clarify it for me. The MA one almost looks like it says you can legally do whatever you want until you are requested to stop:





    Now am I governed by the laws of the state in which the photos were taken (which can stay confidential) or by the state out of which they are sold? And can anyone tell me what the aforementioned statement means and if this consists of actual "legal" speak?


    Thanks again all!
     
  8. Rift485

    Rift485 TPF Noob!

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    Thoughts?
     
  9. keith foster

    keith foster TPF Noob!

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    Go talk to an attorney. 1st consultation will be cheap. Especially compared to what he is going to cost you when you get sued.
    The legal piece you posted says, along with a lot of other stuff, "the plaintiff can be awarded TRIPLE the damages the incurred."
     
  10. Rift485

    Rift485 TPF Noob!

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    Thanks Keith,

    I have reached out to a few attorneys to see what that would cost. The BIGGEST problem, out of the many problems I am facing, is that I am
    currently unemployed and could not be in a worse financial position to be
    doing any of this, really.

    It's frustrating that one of the few talents I have is in a very sensitive area, legally. I guess I'll see how much the consultation costs and go from there. Thanks for all the help!
     
  11. keith foster

    keith foster TPF Noob!

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    I live in a small town so I know things are different here, but, I have talked to a local attorney several times for advice and he sent a letter for me. He charged me $50.
    Many attorneys advertise their consultation is free.
    Hope this works out the best for you. Good luck and keep at it.
     
  12. Rift485

    Rift485 TPF Noob!

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    I've reached out to a local attorney and will see what happens. Thanks for the advice.

    I guess one of my major outstanding questions still is: What is the difference between selling/distributing and publishing images? I ask because I also have dappled in automotive photography and see many online sellers with photos of vehicles with visible emblems etc that may or may not be released. How are they able to do this?
     

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