Can I Add to My Portfolio Even if the Subject Doesn't Like Them?

[RabbitCatCat]

Hello..

Alright I'm feeling frustrated right now, my cousin is pregnant and I am learning photography.. so of course you put those two together and get a photography shoot. My goal isn't to be a maternity photographer, but, I thought it would be interesting and fun and great practice. When I arrived she said she wanted me to send her each photo to see if she likes them before I post them online. Ok, I didn't think she was going to only like a very small percentage of what I show her (all the worst ones too in my opinion lol) .. so now what do I do-- I was hoping to add more to my portfolio? Plus my feelings are really hurt but I'm not telling her that, it's not her fault she doesn't like my work.


Ok I just asked for constructive criticism and got it and put on my big girl panties. But can I use the photos anyway that I like or is this some kind of legal thing because I always thought as the photographer I had full rights to the photos I take.

 

[o hey tyler]

Hello..

Alright I'm feeling frustrated right now, my cousin is pregnant and I am learning photography.. so of course you put those two together and get a photography shoot. My goal isn't to be a maternity photographer, but, I thought it would be interesting and fun and great practice. When I arrived she said she wanted me to send her each photo to see if she likes them before I post them online. Ok, I didn't think she was going to only like a very small percentage of what I show her (all the worst ones too in my opinion lol) .. so now what do I do-- I was hoping to add more to my portfolio? Plus my feelings are really hurt but I'm not telling her that, it's not her fault she doesn't like my work.

What was the release that she signed prior to the shoot?

 

[sscarmack]

No contract? Their your photos and you can do as you please.

 

[RabbitCatCat]

Ok thank you for the response, that's what I thought. I looked online and found a lot of sample contracts I can use to build my own based on.. so I will do that for the future, even with free shoots. I did a search about this topic and I read somewhere that if you use a photo of a person online without their consent you can be sued?! I suppose that was all just talk and not based on fact.

 

[sscarmack]

Ok thank you for the response, that's what I thought. I looked online and found a lot of sample contracts I can use to build my own based on.. so I will do that for the future, even with free shoots. I did a search about this topic and I read somewhere that if you use a photo of a person online without their consent you can be sued?! I suppose that was all just talk and not based on fact.

Were they in a public setting? Fair game

Sounds like she was at your house though, also fair game.

 

[sscarmack]

Good video to watch

 

[TCampbell]

Barring a specific contract... you can use them for anything that doesn't require a model release (e.g. you can't sell them to a client who plans to use them in a advertising campaign without a model release. Also there are some uses where you don't "legally" need a model release, but nobody will use your work without one because of the hassles that could result (even though they'd eventually win, they just don't want to deal with it.))

Adding images to your portfolio of work doesn't require a model release.

HOWEVER... then there's the part about getting along with "family" and "friends". Just because you can do something without "legal" consequences doesn't mean you can do it without suffering "relationship" consequences.

Are the images somehow fine with respect to technical quality, but not fine with respect to being not flattering to the look of the subject? That's the round-about way of asking why is it that she doesn't want you to use them?

How is your cousin (or other members of your family) likely to react if you use it anyway?

There's a point where just because you legally "can" use them, the better option might be to just drop it... although I would likely not be doing any work with that same subject again in the future.

 

[RabbitCatCat]

I asked her if she would mind if I use in my portfolio, and she said as long as I don't tag her on facebook or put them where people she knows can see them she doesn't care, so I'm starting to think it's more about her not liking how she looks. That's great information about the legal uses of the photos I take.

The photos were taken at a public park, on a beach. I wouldn't post something that would humiliate her even if it were legal, I just wanted to make sure.

 

[frommrstomommy]

Sounds like it is definitely just about her not liking how she looks.

 

[Ilovemycam]

Online, I don't know. If you got a paper portfolio, put em in.

Next time if your doing it for free, you be the boss.

 

[TCampbell]

Good video to watch

A little off-topic (but just mildly): There is a special case that Jarrod didn't mention. Just because you don't have a contract doesn't _necessarily_ mean you own the photos & rights.

In most states in the US, anything you produce while under the employment of another person is the property of that other person UNLESS there's a contract that states otherwise. If you hired me and said "I'll pay you $10/hour to go to this event and shoot photos for me." Then YOU (not me) technically own everything I do as long as I'm "on the job".

If, on the other hand, my income is not assured and I'm doing the work at risk... shooting for myself and hoping to a find a buyer for the images later, then I own the photos.

Again, a specific contract can override all of this, but normally an employee's work is the property of the employer. One of the reasons why any photographer "for hire" should DEFINITELY make sure they have a contract with their paying client is that failure have a contract which clearly states that the photographer owns the rights to the photos may end up discovering that their client actually owns the rights. Acceptance of compensation for the job generally implies that the fruits of the labor belong to the person who paid for the labor.

See: Photo Lawyer: Work for Hire

 

[vintagesnaps]

It sounds like you approached your cousin, not that she came to you wanting you to take photos of her. For whatever reason(s) she wanted to see each photo so that sounds like she may not have really wanted to do this. If she doesn't want her photos posted online or on social media websites, then why try to do it? It doesn't sound like you have her written permission to use photos of her for any purpose at all.

She may have valid concerns about photos of her going online particularly on social media websites where photos can go viral. If you're putting your photos on websites or on social media sites, reading the Terms & Conditions will get you informed as to how your photos might end up being used.

If you're going to do work in photography then it would be to your benefit to learn about and use contracts, model releases, property releases, cost of doing business and pricing formulas, etc. and learn about how to go into business as a photographer. You can find professional information that can be found on websites of professional photographers organizations like ASMP and PPA or ones more specific to wedding photography.

Tim gave you some helpful information, he knows what he's talking about.

(edit - Related to the video, there's a difference between owning the rights to your photos and usage. The photographer who took the photos apparently went to someone else's photo shoot, and didn't have a written agreement with the photographer who apparently hired/paid the models and arranged/rented studio space - that could be at least part of the issue if she didn't make any arrangements for how she could use photos that she owns but that she took basically using someone else's models/time/workspace. Him telling her that she could use the photos she took to promote her business is too vague.)

 

[Steve5D]

If you're willing to get into a pissing match with family, what kind of businessman are you going to be?

Don't use the photos. She's pregnant. She's fat. She's got stretch marks. If hormones could fly, her house would be a freakin' airport.

Let it go...

 

[KmH]

Good video to watch

A little off-topic (but just mildly): There is a special case that Jarrod didn't mention. Just because you don't have a contract doesn't _necessarily_ mean you own the photos & rights.

In most states in the US, anything you produce while under the employment of another person is the property of that other person UNLESS there's a contract that states otherwise. If you hired me and said "I'll pay you $10/hour to go to this event and shoot photos for me." Then YOU (not me) technically own everything I do as long as I'm "on the job".

If, on the other hand, my income is not assured and I'm doing the work at risk... shooting for myself and hoping to a find a buyer for the images later, then I own the photos.

Again, a specific contract can override all of this, but normally an employee's work is the property of the employer. One of the reasons why any photographer "for hire" should DEFINITELY make sure they have a contract with their paying client is that failure have a contract which clearly states that the photographer owns the rights to the photos may end up discovering that their client actually owns the rights. Acceptance of compensation for the job generally implies that the fruits of the labor belong to the person who paid for the labor.

See: Photo Lawyer: Work for Hire

A photographer is usually an independent contractor, not an employee.

A better link is - http://www.copyright.gov/circs/circ09.pdf

...But note that the term “employee” in the definition differs from the common understanding of the term. For copyright purposes, “employee” means an employee under the general
common law of agency...
Agency Law
To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence identified factors that make up an “employer-employee” relationship as defined by
agency law. The factors fall into three broad categories.1 Control by the employer over the work. For example, the employer determines how the work is done, has the work
done at the employer’s location, and provides equipment or other means to create the work.

1 Control by the employer over the work.
For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work.

2 Control by employer over the employee.
For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants.

3 Status and conduct of employer.
For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee’s payment.

These factors are not exhaustive. The Court left unclear which of these factors must be present to establish the employment relationship under the work-for-hire definition.
Moreover, it held that supervision or control over creation of the work alone is not controlling.

 

[TATTRAT]

If there is one thing I have learned through years of lurking and posting on this site, something has become ABUNDANTLY CLEAR:

DO NOT DO WORK FOR FAMILY, FAVORS OR NOT.

In theory, they are your shots, you should be able to use them as you please, in you portfolio, no one else will know it's your cousin. . .your cousin doesn't like the shots because of personal feelings that factor greatly into seeing pictures of ones self, but really, it should have been established that you plan on using shots that YOU, as the photog, feel are worthy of going into a portfolio.

If folks look at your portfolio, and don't like the shots, then maybe people are on to something. Until someone with a non critical eye (critical of themselves) look at it, there is sometimes no telling if it is a great shot, or a piss poor shot...even though YOU as the photographer may have feelings for the shot. . . if that makes any sense.