Need Advice - Unauthorized Commercial Photo Taken in My Business

robbins.photo

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Right, spend thousands in legal fees while telling everyone who comes to look at the houses they are building that they are too unhip in your eyes to patronize your establishment and that your petty and will sue anyone for anything at the drop of a hat.

Forget about little details such as the fact that the odds are good unless you actually own the property instead of renting the space odds are good you wouldnt have standing to bring a suit in the first place.

Nope, just run off to a lawyer. That would just be so much easier than just contacting the builder and voicing your concerns.

Because boy, I know I would be mad as hell if someone wanting to give me a ton of free advertisement for my retail business to a bunch of affluent people.

So ya, call a lawyer and see if maybe you can also sue for the cost of all the therapy you are likely to need over the emotional strife all that free advertising caused.

Sheesh
 

W.Y.Photo

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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...

... 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.

...

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.

Apologies, after further research it would seem I am very wrong in this matter. I will edit my post in order to correct for my mistaken claims.

What exactly qualifies as commercial use though? If the image in concern is claimed to be a nearby shop is it really commercial usage just because it is published in a brochure?
 
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CameraClicker

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What exactly qualifies as commercial use though? If the image in concern is claimed to be a nearby shop is it really commercial usage just because it is published in a brochure?

It's not about what the photo is of. It is about usage. Say, you take a photo of a dog, and there happens to be someone recognizable standing near the dog. Editorial is "I saw a dog on the street, with a human. Look at this!" Commercial is "Here is a photo of a dog and a human, please consider purchasing this ________________!" Fill in the blank with anything you can spend money on, or donate money to.

This is not legal advice and should not be construed as such. It is a contrived example to illustrate the difference between editorial and commercial. If you only shoot for yourself and don't sell images, you are unlikely to run into rules around commercial photography.

For what it's worth, there is another category, Fine Art. You would run into that if you were selling prints from a store or gallery. You can research that too, if you desire.
 
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W.Y.Photo

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And that explains my ignorance on the subject. I've been studying in fine art so I could easily hang and sell an image of a mcdonalds in a gallery without worrying about paying them for it, I applied that knowledge to commercial work in a very dumb way.

But what I mean to ask is, if this brochure has a section showing local attractions do they really need to pay each place to include an image of that place? They don't have to notify the government if they put the Washington monument on their brochure's "attractions" section
 
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cgw

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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!

You're asking for advice on a legal matter in an online photography forum--hello! Exactly what sort of remedy are you after? That's your opener with a lawyer. Ante up and get serious if this really matters to you.
 

unpopular

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This is so typical of realtors and others in the real estate industry. No sense of ethics at all.
 

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