HELP! Need advice ASAP

[photographyfanatic]

Hi all! So I am a photographer that specializes in band and music photography. Currently I tour with one particular band. This past weekend I was shooting a show of theirs and I was supposed to be the only pro shooting. Apparently there were two others who went ahead and photographed even though the band told them they were not allowed to shoot. One of these photographers has now posted photos of this show on facebook and his website. The artist does not want them posted or used. The band has overall say on those images being used right? If they photographed without permission then the photographer has no rights to those photos right? Also even if they did have permission to photograph doesn't the artist or band ultimately control the use of their image? Any help is hugely appreciated and any links that can be provided for a breakdown of the law on this is welcomed! Thank you!

 

[Big Mike]

I'd suggest talking to a lawyer...in the area where this occurred.

Of the top of my head, the band probably can't do much here. It's not up to them as to whether photographer is allowed or not (not directly anyway) it is probably up to the owner of the venue, provided that it is privately owned...if it was a public place, they probably have nothing to go on.

So if other photographers were shooting, it's up to the venue to ask them to stop, leave or charge them with trespassing if they don't. I'm not sure that the venue (or the band) have any say over photos that have been taken. (provided it's not an invasion of their 'reasonable expectation of privacy'...but since they were on stage and not in their shower, I doubt that comes into play.

So then there is the usage of the images. There is such a thing as 'fair use'. That's why news photographers can photography pretty much anything they wish and can then publish them in newspapers or websites etc.

But where the band may have some rights, is if these other photographers try to sell the images, featuring the likeness of the band...and even then, the band might not have a say, if the photos can be considered 'art'.

I'm no lawyer and thing can be different, depending on where this happened, which is why it's best to ask a lawyer (who knows about intellectual property rights) in that area.
But you/they should also consider if the fight is worth the hassle. So some guy has their photos up on his website...what's the big deal? Are they trying to avoid exposure and prevent themselves from getting bigger & more famous?

 

[KmH]

The laws that cover this kind of situation can differ by country.

Please indicate your location in your profile.

In all likelyhood, the photographers own the copyright to all the images they made, and the band would have no say about any non-commercial use of the images.

Selling images is not generally considered a commercial use. Publishers frequently license images that have not been released by people in the images.

 

[photographyfanatic]

I am in the United States. So even though this was a private venue and they were told that the were not allowed to photograph they still can use those images?

 

[Big Mike]

I am in the United States. So even though this was a private venue and they were told that the were not allowed to photograph they still can use those images?

Depends on what you mean by 'use those images'.

 

[gsgary]

If yours are better whats the problem, sounds like you are worried that they are better

 

[KmH]

I am in the United States. So even though this was a private venue and they were told that the were not allowed to photograph they still can use those images?

Those photographers own the copyrights to the photos they made, private venue or not. www.copyright.gov

So, like Mike suggested it boils down to usage. There are 2 kinds of usage: Editorial, and Commercial.

If the band were to discover the photos were being used editorially, there is little they could do. Editorial uses, except some very limited circumstances, don't require people in the images release the use of their likeness.

If the band were to discover the photos were being used commercially, they would hire an attorney and sue the publisher of the images. Note that that says "the publisher", not the photographer. However, it is possible for the photographer to also be the publisher.

But here is where it gets sticky. If the band was charging people to enter that venue, the event was public. That lokely means the photographers could use the images they made for self-promotion and self-publishing, since neither is considered a commercial use.

By the way, selling the images as art, and keeping the numbers low enough it doesn't get considered mass distribution, the photographers can sell prints of those photos all day long, 365 days a year, because that an editorial usage.

I refered you to www.copyright.gov above. You might also get the book: A Digital Photographers Guide To Model Releases by Dan Heller, before the band starts suing you.

Are you familiar with 'use licensing'?

 

[davisphotos]

If it's really a problem, talk to a lawyer, but as the others have mentioned, if the images are not being offered for sale, it may be a hard case to make.

 

[BKMOOD]

If this was a news worthy event in a public place, there is nothing you can do. For example, Beyonce can't sing in Central Park and say only one person is allowed to photograph her.

Where was the venue? Is this a known act? Just curious.

I think KmH pretty much said it best.

 

[skieur]

As Big Mike mentioned and it applies in both the United States and Canada, the only answer is for someone representing the venue as in security perhaps to tell them to stop shooting or leave. If they don't leave, then they can be charged with tresspassing.

If the venue does not do their part, then the shooting in a public place applies, which means that the photographer can use the shots for any purpose but advertising.

skieur

 

[KmH]

The photographers can sell the images to anyone.

What someone else does with an image they purchased, like using it in advertising, is beyond the control of the photographer.

 

[skieur]

The photographers can sell the images to anyone.

What someone else does with an image they purchased, like using it in advertising, is beyond the control of the photographer.

Quite true.

skieur