My photos are selling products without my consent

[andrewdoeshair]

I hope this is the appropriate place to post. Some photos I took a few years ago have been making the rounds on hair ads to sell product (the funny thing is that there was no product used in the styling). I haven consented to any of this. Most of the companies are small and it’s just annoying, but a large company just started using the photos and I really want to do something about it. Does anyone know how I can start? Thank you

 

[Original katomi]

Have you tried contraction them and saying Hi you are using my images, they may be under the impression that the images are orphaned. Their reply or lack will give you an idea of what to do next
A reply of oh sorry we could not trace the owner, can we please use them and at how much
Then you can be nice and say ...... something y/n cost credits on the image
A reply of so what.....or equivalent then it’s time to remind them of copyright law and maybe mention that not only can you use the law of the land but you tube, Facebook, Twitter will give a world wide coverage to Their mis use of your images.

Just be 200% sure they are your images, otherwise egg is on your face

 

[tirediron]

Contact them and tell them that they're using your images, to which you have not assigned rights, without consent or remuneration. Tell them they have 30 days to remove them unless they want to pay for them. You could also send along an invoice for the value of the use they've already received, but I wouldn't hold much of getting that paid. I would start politely, but firmly and escalate from there.

 

[smoke665]

Interesting little tidbit from the FAQ on copyright law, there's an exception, that I don't know if it covers you or not. The copyright in a work initially belongs to the author(s) who created that work, however, in the case of "Work for hire", the author is not considered the individual who actually created the work. Instead, the party that hired the individual is considered the copyright owner of the work. Whether a work is made for hire is determined by the facts that exist at the time the work is created.

Another issue on the ownership of the copyright, was this you or another person. I am assuming this was taken in a nonpublic setting with the subject's knowledge. As such if it's another person, do you have a written assignment of copyright or other legal agreement covering the ownership?

Finally there's the ugly little "Fair Use" exception. If you’re only just using a portion of the face from an image, (as in your example) there's a good chance they could argue fair use.

You'll likely be able to bluff smaller companies into pulling the images, rather then risk fighting it in court, but a larger company may force you to "prove it".

 

[vintagesnaps]

These are your photos that you took, aren't they Andrew? If so look up how to do a DMCA takedown notice. You could do that with smaller companies to ask them to stop using your photos without permission. With a larger company send the takedown notice and/or find out how to send that along with a contract for them to license usage of your work.

Try American Society of Media Photographers - Homepage for info. on how to do a take down notice and contract to license usage. They have info. available to non members.

Make sure you check Terms on sites where you're posting your photos; some Terms allow for other site users to use your photos. You do good work, you want to make sure you protect your work, your time, your talent.

 

[andrewdoeshair]

Thanks for the tips, I’ll have to read them more deeply when I’m not on a break between clients. These photos were taken of a 15 year old boy who saw me for a haircut, then shared on my Instagram. I didn’t get any written consent from him or his parents, I don’t know if that negates my rights to the images. When I asked the company for credit or removal they blocked me on Instagram. From other accounts I can see that the image is still being used. It would be one thing if the account was just freebooting and stealing images to build a following so they can sell a few ads, but because they’re using it to directly sell a product, I want it stopped. Or I want some of their profits on that product. This happens allllllll over Instagram, and I hate it. I’d even lose some money making them “pay” somehow, just so companies will think twice before ripping off the little guy. I dunno. I’ll probably do nothing. It just sucks.

 

[vintagesnaps]

It wouldn't affect the rights; you own copyright of any photos you take. It could affect usage if you didn't have the parents sign a model release. ASMP has a sample model release, a 'pocket' release, and an app. You're probably limited to editorial use or maybe a fine art print (for the buyer's personal use to hang on the wall).

I don't do Instagram. (I read the Terms and never went back, they need people to use the site more than I need them and don't feel like I'm missing a thing!) But for a business it might be necessary. Think about what you're sharing, and even though watermarks can be removed you might need to think about using them (I customize the color, light/darkness, etc. for individual photos, but don't share much online.) to at least make people think twice if they want to bother to have to remove watermarks or just go find something else to steal.

You won't lose money issuing a takedown notice or licensing usage. And where else can you find this company's contact info. to do either of these? They're using it for commercial (advertising, business) use. The more you get informed the better you can take action on something like this.

 

[tirediron]

...Finally there's the ugly little "Fair Use" exception. If you’re only just using a portion of the face from an image, (as in your example) there's a good chance they could argue fair use..

"Fair use" is for critique, education, etc. I don't believe there's any fair use caveat when an image is being used commercially.

 

[Original katomi]

A lot of good advice from others there let us know how you get good luck

 

[smoke665]

...Finally there's the ugly little "Fair Use" exception. If you’re only just using a portion of the face from an image, (as in your example) there's a good chance they could argue fair use..

"Fair use" is for critique, education, etc. I don't believe there's any fair use caveat when an image is being used commercially.

Section 107 of the Copyright law calls for consideration of the four factors in evaluating a question of fair use:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair.

2. Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression.

3.Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely.

4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work.

So "fair use" is not a hard black line (commercial/noncommercial) without comparing all four factors, which requires a court to decide. Even then the courts may interpret the four factors differently. In a case last year https://petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/ on the first factor, the court ruled the photo was used on a "commercial site" in a "noncommercial way".

The law is a pit of gray matter even for attorneys and you have to consider everything that the court might take into consideration. I already mentioned the "work for hire" exception, but there's also the "clean hands doctrine". Legal Dictionary - Law.com The OP mentioned earlier that the photo in question was of a minor, and he didn't have a release. Not clear is if he posted to social media or if the minor did. At the least, without a release I would guess a defendant's attorney would argue locus standi.
Standing

As I said earlier most smaller companies would take it down rather then incur further legal expense, a larger company with in house legal staff, may or may not. Collecting from either would likely require litigation. Sending takedown notices doesn't cost much, but before I went much further I'd contact a competent attorney versed in copyright law. It might suck, but sometimes winning the battle cost more then it's worth.

 

[tirediron]

Damn... okay. I certainly stand corrected. I was certain that US copyright excluded commercial work from the fair use caveat. It seems completely wrong to me that someone can use someone else's work to make money!

 

[smoke665]

Having been on both sides of the aisle over the years as litigant and defendant, I can say that there were many times I felt like the law was wrong. LOL I've also learned that when on billable hours, a lot of wrongs can be lived with.

 

[vintagesnaps]

I don't know where that came from but it's NOT from the US Copyright Office website. It's been rewritten by someone and isn't completely accurate (some is directly quoted but much of it is not), especially the last two paragraphs. There are no citations as to where someone came up with that info.

Here's what the US Copyright Office says.

More Information on Fair Use | U.S. Copyright Office

It talks about what may be considered fair use related to 'Nature of the copyrighted work' (which is omitted above); techical or news might be considered fair use, but creative work would more likely NOT be considered fair use.

Seems like Andrew's photos are his creative work of his creative work (hairstyles/haircuts).

ASMP has done webinars and I've taken a couple of them related to copyright. It seems like pursuing a take down request is likely the best course of action because you could stop someone from unauthorized use but it's less likely you'd get payment or benefit from taking it to court.

 

[vintagesnaps]

John, it talks about commercial work that contains non-commercial info., and that part could be considered fair use. Such as if a venue is holding an event and selling tickets, but also links to community events, that info. may be considered non-commercial (I think because it's sharing information). The part that promotes their money making event is more likely commercial and not considered fair use.

 

[Original katomi]

Can someone re post that link to the US copyright laws into my thread on photography and the law marking it US as I have marked the UK section. It would be nice to build a knowledge base for different countries