Legalities- photos into art

[Rift485]

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:

Since taking pictures doesn't require a release, nor does selling or buying photos, why do photographers get releases then? The answer is alarmingly simple: to sell them. Photographers get releases because they want to sell the pictures to buyers who may need the photos released for particular kinds of publications. Since the photographer happens to be taking the picture, and since they want to sell that picture later, it makes sense to ask the subject to sign a release. In short, you're just making life easier (and safer) for your clients, which helps your business.

(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:

Permission is needed when you use another person's image to promote businesses, goods and services. If the use promotes or advertises your business, you should have a "release." If you are simply offering the image for sale, you don't.

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:

But, what if your friends start telling their friends? And their friends tell their friends? At some point along this spectrum, you cross into the realm of "distribution"—the kind that requires consent (a release). There's no simple line; it's a slow, gradual one. In fact, there was a case where The Black Mustang Club—a private group of car owners—wanted to put together a calendar featuring member's cars and print it through Cafe Press, but an attorney from Ford nixed the project, stating that the calendar pics and 'anything with one of (member's) cars in it infringes on Ford's trademarks which include the use of images of their vehicles.' Now, reading the popular press on the subject (namely, that of photo newsgroups), you'd think that it was illegal to take pictures of your own car. No, that's not the case. There was nothing wrong with anything about this project until it got to the point where the poster had become so popular, that the people buying it so outnumbered the members of the club itself, that it was clearly a form of public distribution. And because it was, buyers had assumed that the poster was a product of (and/or advocated or sanctioned by) Ford. It was for this reason only that Ford forced them to stop selling the poster. And it was the use of the logo that gave people such an impression.

(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:

As a general matter, you will not be held liable for using someone's name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone's name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person's identity.

(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:

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

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!!

 

[cirekoy]

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.

 

[Rift485]

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?

 

[cirekoy]

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:

 

[Rift485]

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.

 

[KmH]

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:

 

[Rift485]

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:

Massachusetts

MA ST 214 s 3A
M.G.L.A. 214 s 3A
TEXT

MASSACHUSETTS GENERAL LAWS ANNOTATED
PART III. COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE I. COURTS AND JUDICIAL OFFICERS
CHAPTER 214. EQUITY JURISDICTION​

s 3A. Unauthorized use of name, portrait or picture of a person; injunctive relief; damages; exceptions
Any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent may bring a civil action in the superior court against the person so using his name, portrait or picture, to prevent and restrain the use thereof; and may recover damages for any injuries sustained by reason of such use. If the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is prohibited or unlawful, the court, in its discretion, may award the plaintiff treble the amount of the damages sustained by him. Nothing in this section shall be so construed as to prevent any person practicing the profession of photography from exhibiting in or about his or its establishment specimens of the work of such person or establishment, unless the exhibiting of any such specimen is continued after written notice objecting thereto has been given by the person portrayed; and nothing in this section shall be so construed as to prevent any person from using the name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by such manufacturer or dealer which such person has sold or disposed of with such name, portrait or picture used in connection therewith; or from using the name, portrait or picture of any author, composer or artist in connection with any literary, musical or artistic production of such author, composer or artist which such person has sold or disposed of with such name, portrait or picture used in connection therewith.

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!

 

[Rift485]

Thoughts?

 

[keith foster]

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."

 

[Rift485]

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!

 

[keith foster]

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.

 

[Rift485]

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?

 

[FrankLamont]

Generally, although as aforementioned, certain laws can vary by country and particularly in the US, by state.

• A photographer sells prints, each individually. Non-Commercial
• A wedding photographer displays samples of their work on their website or portfolio. Commercial — they are using images of people to endorse or sell their wedding photography services
• Business uses a candid photo to advertise themselves. Commercial Use - it requires a model release
  
• Art exhibition sells prints or posters or postcards. Non-Commercial — unless advertising for the exhibition
• Photographs are sold for publication inside a book or magazine, but not as part of an advertisement or cover (refer below). Non-Commercial.
• A photograph is published on a book or magazine cover. Commercial - ergo why a candid is rarely used as a cover.

 

[Rift485]

Ok, individual prints = non commercial.

But individual, non wedding related, prints of a band sold on a website = commercial? Because of the subject or the fact that it is on a website?

I will keep in mind there are variances by state...

 

[tsaraleksi]

Obviously talking to a lawyer (I am not a lawyer, though I did just finish law school apps last night!) is the most important thing, but something that might help you figure out an answer:

did you have permission to take the photos? and were there terms and conditions attached to that permission. A lot of bands forbid photography outright, in which case it's likely that you could face trouble for selling these images. Some allow it but specify that it is only for personal use, in which case you could also get in trouble. But if photography was allowed without restriction, then selling those images as individual art prints should be unrestricted.

edit: Check out Nussenzweig v. DiCorcia that affirmed the right of a photographer to sell, as art, photos taken without a release. Again, however, this is going to hinge on the situation in which you took the photos.