Need Advice - Unauthorized Commercial Photo Taken in My Business

Steelh

TPF Noob!
Joined
Aug 14, 2014
Messages
1
Reaction score
0
Location
Caifornia
Can others edit my Photos
Photos NOT OK to edit
Hi There-

Much to my surprise, today when I went to look at some model homes in a new development offered by a large, well known residential home builder in southern California, I opened their fancy 12-page color brochure to find a 1/3 page picture of my small business, featured prominently on the inside cover of the brochure. It's obvious that the picture was taken from inside my business during regular business hours. I own a small, hip retail business in a city close to this development and in the photo you can see customers in my store, me at the register, and my business sign very clearly in the background.

I did not give consent for this commercial use, had no idea the picture was taken, and its a shock to me. In the meantime, the builder is offering about 90 homes for sale starting from the mid-$500,000's.

For me it's more the principal of the matter than anything else, but I'm also assuming that I should have received some compensation for the use of the photo. We've worked hard to build our "brand" and I can understand why the builder would want to have a photo of our business in their brochure, but the lack of professionalism is not cool. This is a multi-billion dollar builder who's marketing and advertising team should know better. And of course, at this point, I have no idea if they're using this or any other unauthorized photo of my business in other marketing materials.

Any guidance would be helpful.

Thanks!
 

Bitter Jeweler

Been spending a lot of time on here!
Joined
Apr 27, 2009
Messages
12,983
Reaction score
4,987
Location
Cleveland, Ohio
Can others edit my Photos
Photos OK to edit
I'd suggest consulting a lawyer for real advice, rather than a photography forum.
 

tirediron

Watch the Birdy!
Staff member
Supporting Member
Joined
Jul 8, 2005
Messages
45,747
Reaction score
14,802
Location
Victoria, BC
Website
www.johnsphotography.ca
Can others edit my Photos
Photos OK to edit
Discuss this with a qualified attorney in your state. This is NOT something for which you should seek advice on an Internet forum.
 

SCraig

Been spending a lot of time on here!
Joined
Nov 12, 2011
Messages
6,474
Reaction score
2,450
Location
Nashville, TN
Website
sc-photo-tn.com
Can others edit my Photos
Photos NOT OK to edit
So, you're getting free advertisement in this nice brochure and you're complaining about it because they didn't ask first? Sorry, but I guess I don't see the problem.
 

robbins.photo

Yup, It's The Zoo Guy
Supporting Member
Joined
Oct 3, 2013
Messages
11,518
Reaction score
4,788
Location
Louisville, Nebraksa - United States
Can others edit my Photos
Photos OK to edit
I'd have to go with scraig here, if anything I think most business's would be willing to pay the builder to have themselves featured to so many new customers who have the financial resources to buy a house in an upscale housing community.

If you want my advice, save the money and forget the lawyer, spend a few bucks and hire somebody who knows something about marketing instead.
 

CameraClicker

No longer a newbie, moving up!
Joined
Aug 14, 2014
Messages
565
Reaction score
125
Location
Toronto
Can others edit my Photos
Photos OK to edit
Consult a lawyer or two. Haven't seen the photo but if you (and possibly others) are actually identifiable because your face is clearly visible and you didn't sign a model release, you may have a case. Generally, if I take your photo, I can display it as "I took this", and it can be published as news or social commentary, or inside a book I wrote and published, because that is editorial usage. If someone publishes it as a commercial, they (publisher, not photographer) need a model release. If I want to use the photo on the cover of a book that is for sale, I need a model release. Sometimes logos/trademarks cause similar problems in photos. Stock agencies want model releases for anyone who is identifiable and no logos/trademarks visible. They won't accept photos without, because they can't sell the photo. They usually want a release for identifiable property too.
 

orljustin

No longer a newbie, moving up!
Joined
Oct 20, 2010
Messages
694
Reaction score
89
Consult a lawyer or two. Haven't seen the photo but if you (and possibly others) are actually identifiable because your face is clearly visible and you didn't sign a model release, you may have a case. Generally, if I take your photo, I can display it as "I took this", and it can be published as news or social commentary, or inside a book I wrote and published, because that is editorial usage. If someone publishes it as a commercial, they (publisher, not photographer) need a model release. If I want to use the photo on the cover of a book that is for sale, I need a model release. Sometimes logos/trademarks cause similar problems in photos. Stock agencies want model releases for anyone who is identifiable and no logos/trademarks visible. They won't accept photos without, because they can't sell the photo. They usually want a release for identifiable property too.

This, except most do not require a release for property interiors. Oddly enough, they do for editorial use image, but not commercial ones, assuming there are no other issues. However, the recognizable people and branding is an issue, so do contact a lawyer.
 

W.Y.Photo

No longer a newbie, moving up!
Joined
Aug 10, 2014
Messages
874
Reaction score
203
Location
Harlem, NY
Can others edit my Photos
Photos NOT OK to edit
Edit: DISREGARD I was very wrong.

What you are experiencing is something that celebrities have to deal with every day of their lives, people taking and using their image in whatever way they please without any credit or compensation to the person who is actually in the image.
 
Last edited:

Braineack

Been spending a lot of time on here!
Joined
Jun 17, 2013
Messages
13,200
Reaction score
5,610
Location
NoVA
Can others edit my Photos
Photos OK to edit
I didn't give you consent to post on a publically accessible forum, but somehow it happened.
 

Designer

Been spending a lot of time on here!
Joined
Apr 13, 2012
Messages
18,505
Reaction score
4,852
Location
Iowa
Can others edit my Photos
Photos OK to edit
Post a link to the picture please, so that we can evaluate the photograph.
 

Tee

Been spending a lot of time on here!
Joined
Mar 26, 2010
Messages
1,954
Reaction score
625
Location
South central PA
Can others edit my Photos
Photos NOT OK to edit
Would it be considered ironic that someone is on a photo forum seeking free advice about claiming someone took a photo of their business for free?
 

CameraClicker

No longer a newbie, moving up!
Joined
Aug 14, 2014
Messages
565
Reaction score
125
Location
Toronto
Can others edit my Photos
Photos OK to edit
Would it be considered ironic that someone is on a photo forum seeking free advice about claiming someone took a photo of their business for free?

It's not the taking of the photo, it's the usage.
 

CameraClicker

No longer a newbie, moving up!
Joined
Aug 14, 2014
Messages
565
Reaction score
125
Location
Toronto
Can others edit my Photos
Photos OK to edit
Consult a lawyer or two. Haven't seen the photo but if you (and possibly others) are actually identifiable because your face is clearly visible and you didn't sign a model release, you may have a case. Generally, if I take your photo, I can display it as "I took this", and it can be published as news or social commentary, or inside a book I wrote and published, because that is editorial usage. If someone publishes it as a commercial, they (publisher, not photographer) need a model release. If I want to use the photo on the cover of a book that is for sale, I need a model release. Sometimes logos/trademarks cause similar problems in photos. Stock agencies want model releases for anyone who is identifiable and no logos/trademarks visible. They won't accept photos without, because they can't sell the photo. They usually want a release for identifiable property too.

Though model releases are an excellent thing for a professional to have on hand, they are more for the model and less for the photographer. In fact, they actually limit the photographers ability to use an image by law when a photographer normally has exclusive rights to use their image however they please.

Hate to burst your bubble Steelh, but the photographer of that image is allowed to do with it whatever he pleases. Just because it is of your business does not mean you have any rights to the way the image is used in any way. He, and anyone he sells the rights to can use that image however they please. They could even go print out millions of billboards and start making millions off the photo of you and your company without paying you a dime and it would be within their rights to do so. You'd be wasting your time bringing these people to court, though you may be able to convince them to compensate you if they are not aware of the law.

^this holds true no matter whether he was on your property or not. There are laws in place in order to protect photographers from paying almost everything they make to anyone who owns a business or the land the photographer was on when they took an image. If they weren't there would be no proffesional photography outside of a studio setting and photojournalists would all be imprisoned for life.

What you are experiencing is something that celebrities have to deal with every day of their lives, people taking and using their image in whatever way they please without any credit or compensation to the person who is actually in the photograph. There is nothing you can do about it.

WOW!!
Please provide a link to the statutes that support your statements. I would love you to be correct, but unfortunately everything I have read in both American and Canadian law goes completely against what you are saying.

A model release releases the publisher to use the model's likeness for commercial activity. The model may or may not be paid depending upon what the release and/or modelling contract says. Certain uses may be allowed while others are prohibited. The publisher may or may not be the photographer. If the publisher is sued, and thought the photographer had a release, the photographer will probably be sued by the publisher.

By the way, copyright does not give the photographer the right to use a photo any way they want. It limits, to a degree, what others can do with that photo. It does not prevent others from using the photo without the photographer's permission, it limits.

Do you use Instagram? Read their Terms of Service carefully. Their Terms of Service say that they can license your photo, without paying you, and if someone they license your photo to is sued, you indemnify them. That means you are on the hook to pay for the settlement, even though you didn't receive the license fee, and were not a party to the lawsuit.

Celebrities are not always fair game. If you see a celebrity walking down the street, you can take their photo and you can publish it in the local papers. That is editorial usage. If you take the same photo and use it to advertise a drink, a cruise, a shirt, or anything else, that is commercial usage, and you will be sued.

These are generalities. There is more complexity and subtlety to the law and different jurisdictions have different rules, so the best advice is to seek a lawyer's opinion, and ask a lawyer that specializes in that area of law, in that area of the land.
 

Braineack

Been spending a lot of time on here!
Joined
Jun 17, 2013
Messages
13,200
Reaction score
5,610
Location
NoVA
Can others edit my Photos
Photos OK to edit
wondering if his business isn't on their property and they have a clause in the lease...
 

KmH

In memoriam
Supporting Member
Joined
Apr 9, 2009
Messages
41,401
Reaction score
5,706
Location
Iowa
Website
kharrodphotography.blogspot.com
Can others edit my Photos
Photos OK to edit
I opened their fancy 12-page color brochure to find a 1/3 page picture of my small business, featured prominently on the inside cover of the brochure. It's obvious that the picture was taken from inside my business during regular business hours. I own a small, hip retail business in a city close to this development and in the photo you can see customers in my store, me at the register, and my business sign very clearly in the background.
Absolutely, contact an qualified attorney.

There is no doubt the brochure is an advertisement, which makes the use of your likeness (and the other people) a commercial use.

They need your permission (a signed model release) to use your likeness to advertise their business. They need the permission of any other recognizable people in the photo too.
You are in California, and California model release law is about the toughest in the country.

Photographers get the model release signed because the photographer is right there at the time the photo is made, and often becomes a publisher of an image by using it for self-promotion.
A model release protects the publisher of the image and any people (models) in the photo.

Recognizability does not require a person's face be visible in a photo. A unique hair cut, a scar, unique clothing, a tattoo, and other things can make a person recognizable.

There is plenty of California case law that supports the notion the residential home builder has some very serious legal exposure because of that brochure.
 
Last edited:

Most reactions

New Topics

Top