Beginner Using babys photos to advertise!

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Onlyme1

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Does anyone know where we'll stand regarding this - in September we got some family photos taken by a photographer, he never got us to sign a contract and didn't verbally ask us if he could use the photos.
In February we found out that he was using photos of my baby's photo (aged 3 months when photographed) on his website (through my sister spotting them) which we asked him to remove and not use our sons photos but we had no qualms about him using any of the pictures of us (the adults) although I would have thought it would be courteous to at least ask/mention. Then today we have found out (off my uncle) that he has put our sons photo on 5000 leaflets advertising his business, photography sessions and prices which have been circulating since before February.
He has made no attempt to redeem the uncirculated ones from stores (obviously nothing can be done about the ones posted through letterboxes) and never bothered to mention it to us that he has used them even though these had already been produced and put out for advertising before I previously contacted him.
Now my thing is - he never once asked or even mentioned about using any of the photos either verbally or written and I feel he should have asked us to sign a 'model release' form for the use of using our sons photo to advertise his business has it is being used for his own commercial use - am I right in thinking this way?
 
Technically, if you commissioned the work, he can't do it without a contract.

But before you go off on a tangent, you have to realise there's no difference in law between your image and your child's. I can see why you might see it differently, but get over it.

If you didn't commission the work (TFP etc), the copyright is his, and he has no legal obligation to you.
 
This is a simple overview of copyright: https://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law

If you look at section 5, you'll see that "Freelance or commissioned work will usually belong to the author of the work, unless there is an agreement to the contrary, (i.e. in a contract for service)." This is a change from the position before 1988, when the person commissioning the work owned the copyright.

However, if you're really annoyed at him, it looks like you could enforce section 35.5 of the Copyright Act 1968 which gives a person commissioning a picture. for domestic purposes only, specific rights to prevent the use of the picture for a different purpose: https://jade.io/article/218245/section/168 (this is in grade A legalese but I think that's what it says)

If in doubt, though, check that your home insurance covers legal fees and if so, talk to a lawyer.
 
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Sejanus Aelianus said:
This is a simple overview of copyright: https://www.copyrightservice.co.uk/copyright/p01_uk_copyright_law

If you look at section 5, you'll see that "Freelance or commissioned work will usually belong to the author of the work, unless there is an agreement to the contrary, (i.e. in a contract for service)." This is a change from the position before 1988, when the person commissioning the work owned the copyright.

However, if you're really annoyed at him, it looks like you could enforce section 35.5 of the Copyright Act 1968 which gives a person commissioning a picture. for domestic purposes only, specific rights to prevent the use of the picture for a different purpose: https://jade.io/article/218245/section/168 (this is in grade A legalese but I think that's what it says)

If in doubt, though, check that your home insurance covers legal fees and if so, talk to a lawyer.
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I'm afraid that first link is b****x.

That page is owned by shysters and really should die a natural death, but people keep quoting it so it won't.

The second point is correct, and agrees with what I said, here's a link to the gov.uk site that explains it clearly.

As someone who regularly shoots commissioned work, it's written into our contract, as it should be in everyone's. It's no secret, before 1998 photographers didn't automatically get copyright, we do now. However a domestic customer commissioning work has to give the photographer permission for use elsewhere.
 
Thank you both for your responses. I'm not about to go off on a tangent about anything, I just like to know were I stand.
The work was commissioned but we had no contract at all.
 
Sejanus Aelianus said:
I don't know that I'd go quite that far but, as my signature implies, everything I post comes without warranty...
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That site is designed to look official and implies that photographers can cover their work legally by registering it with them. This is not required under UK law, the premise is based on US law. But from your quote of it, it's clear that they actually have no real desire to give accurate advice.

As I said, it's do the world a favour if it just disappeared, rather than giving bad advice and selling unnecessary 'protection'.
 
Onlyme1 said:
Thank you both for your responses. I'm not about to go off on a tangent about anything, I just like to know were I stand.
The work was commissioned but we had no contract at all.
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Then as you can see from the gov.uk site, he doesn't have permission to use those images.
 
Thank you again, I have been receiving mixed responses all day regarding this. Now I just need to have a ponder over the path I want to take over him using these.
 
@Onlyme1 out of curiosity, what would be your ideal outcome/resolution to this matter?
 
Ideally I would have preferred my little boys photos not to be circulated in the first place, but I would like him to retrieve as much as he can that are still in circulation. I used to own my own business and I kept record of everywhere I publicised my company and also asked new/potential customers were they heard about me, but this guy has told me he has no idea were the leaflets all went so can't redeem them.
 
Onlyme1 said:
Ideally I would have preferred my little boys photos not to be circulated in the first place, but I would like him to retrieve as much as he can that are still in circulation. I used to own my own business and I kept record of everywhere I publicised my company and also asked new/potential customers were they heard about me, but this guy has told me he has no idea were the leaflets all went so can't redeem them.
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End of the day , he owns the copyright but he can't use the commisioned photos without your consent - the problem you have is that with nothing in writing proving they were commissioned won't be easy if he disputes it

Also while if you can prove the pics were commissioned you can stop him using the pictures further , insist they are removed from his website etc , insisting he retrieve all the already distributed leaflets isn't really reasonable and it is unlikely that a court would insist that he did.

afterall the point of flier is that they are distributed - if these went as inserts in the local free paper for example, what is he supposed to do, go and knock on every door and ask for them back ?

End of the day whilst I can see why you are upset, you do need to keep a sense of proportion - assuming there isnt a specific reason why your child's image shouldn't be publicised (like you are in witness protection, or hes on the child at risk register because you are hiding from an abusive spouse) the likelihood of these pictures being used in any nefarious or distasteful way (such as by a paedophile etc) are vanishingly small - most are probably already in someones recycling bin, so effort spend on trying to force him to recover them is likely to be wasted



Lastly as phil said earlier the fact that the pics are of a child is a complete red herring, as is the lack of a model release which isn't necessary in UK law - the only thing that gives you any control over the use is the commisioned status of the images

(also you are bound to get conflicting advice from the net - for definitive legal advice speak to a lawyer, many solicitors will do a 15 min free initial consultation and advise you whether you have a case worth pursuing)
 
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If you really want to get back at him, just repeat your story on Mumsnet / Facebook mums group / contact the Daily Mail.

A quick witch hunt would soon sort him out.
 
Llamaman said:
If you really want to get back at him, just repeat your story on Mumsnet / Facebook mums group / contact the Daily Mail.

A quick witch hunt would soon sort him out.
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although bear in mind that the DM will then splash said photo all over their article thus giving it much greater exposure than it would have ever got from the fliers :LOL:
 
At least you could be sure that, being the Mail, they won't have paid for the photo.
 
big soft moose said:
End of the day , he owns the copyright but he can't use the commisioned photos without your consent - the problem you have is that with nothing in writing proving they were commissioned won't be easy if he disputes it
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would be pretty easy if you could show you'd paid him. But then he could also argue that by doing so you accepted his standard terms and conditions if they were readily available. (and of course included future use of images)
 
ecoleman said:
It was a genuine question. Do you have the answer or just your opinion?
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Did I give an opinion? I think not.Why is it relevant why the OP is uncomfortable anyway? The only relevance is the fact they are
 
ecoleman said:
The question was to the OP. No need for you to respond any further.
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Being an open forum I'll respond as I like ta. Don't like it? report or ignore. But stop playing mod and telling me how I can or can't respond. Jeez.
 
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Just playing devil's advocate here - if the photographer HAD asked, what would you have said? I know this has nothing to do with finding a solution for you, but I'm only curious as to whether it's the fact the photographer didn't ask you that's upset you the most.

Just as an aside, I get everyone to sign a model release form, especially if kids are underage, and then I have two boxes that I ask them to tick if they allow me to use their photos on Social Media and website, although the release clearly does state that I own copyright. But if someone doesn't want me to post or share images, then I won't if they don't specifically grant me permission. It's the courteous thing to do.
 
boyfalldown said:
Po. Kettle. Black:ROFLMAO: I asked you a perfectly polite question. To which you responded with a big old dummy spit. Mature
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Really?? I asked a genuine question to which you responded by sayi my question was irrelevant. Then when you're challenged you spat your dummy out saying I shouldn't mod your posts and you can post what you like.

You're absolutely right about the pot, kettle, black bit though.

Congratulations, you made it to my ignore list.
 
boyfalldown said:
would be pretty easy if you could show you'd paid him. But then he could also argue that by doing so you accepted his standard terms and conditions if they were readily available. (and of course included future use of images)
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Indeed - I suspect with nothing in writing the average lawyer won't touch it with a barge pole (especially as there isnt an obvious solution that a court can order to make the situation right...since recovery of already distributed flyers will be a non starter), and both parties would be wise to right it off to experience rather than escalating into a time and money wasting he said/ she said dispute
 
ecoleman said:
Why do you have an issue with you child's image being used?
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I think this is an interesting and legitimate question. Bear with me.

The OP feels uncomfortable about the fact that her son's images are out there on these leaflets. But the leaflets are out there, and they can't be recalled. So the only way to make her feel less uncomfortable about this is to address the reason for the discomfort.

(Obviously steps might be taken to prevent future usage, but that's a different issue.)

Personally if I were in her situation I wouldn't be bothered one bit. (I'm assuming here that there isn't a really serious issue in the background, such as a restraining order or a witness protection identity.) What harm can realistically come from my child's photo on a leaflet? In fact I'd be pleased that the photographer thought he was sufficiently photogenic, because I'm certainly not.

So to the OP: what bothers you about it?
 
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StewartR said:
I think this is an interesting and legitimate question. Bear with me.

The OP feels uncomfortable about the fact that her son's images are out there on these leaflets. But the leaflets are out there, and they can't be recalled. So the only way to make her feel less uncomfortable about this is to address the reason for the discomfort.

(Obviously steps might be taken to prevent future usage, but that's a different issue.)

Personally if I were in her situation I wouldn't be bothered one bit. (I'm assuming here that there isn't a really serious issue in the background, such as a restraining order or a witness protection identity.) What harm can realistically come from my child's photo on a leaflet? In fact I'd be pleased that the photographer thought he was sufficiently photogenic, because I'm certainly not.

So to the OP: what bothers you about it?
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This was pretty much my thoughts and is why I asked the question.
 
Just thinking about it and I wonder in all the excitement of the photo session if the photographer asked ,say over a cup of tea, if he could use the pictures. An innocent question in the middle of a discussion about how/ what/ where to take the pictures. A casual question is often overlooked but permission might or might not have been given. My gut feeling if it was taken any further the photographer would win giving the reason of having got a verbal permission to do so wether he did or not. It would be hard to come down on either side for a judge as mistakes were made on both sides. One not providing the necessary documents ie model release, and on the other the client not stating clearly at the time the photos were not to be used for commercial purposes and getting it in writing.

If the client lost the case it would cost him even more financially and have a greater affect in other ways shall we say stress wise.
One learns by mistakes and has to either live with it or get over it, at least the same won't be made again
 
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Of course we live in a compensation culture....



When my kids were that age, a local photographer approached us as he was doing catalogue work for 'Next'.

Signed release, got paid and everything.

We were probably more disappointed that ultimately they didn't appear in said catalogue!
 
realspeed said:
Just thinking about it and I wonder in all the excitement of the photo session if the photographer asked ,say over a cup of tea, if he could use the pictures. An innocent question in the middle of a discussion about how/ what/ where to take the pictures. A casual question is often overlooked but permission might or might not have been given. My gut feeling if it was taken any further the photographer would win giving the reason of having got a verbal permission to do so wether he did or not. It would be hard to come down on either side for a judge as mistakes were made on both sides. One not providing the necessary documents ie model release, and on the other the client not stating clearly at the time the photos were not to be used for commercial purposes and getting it in writing.

If the client lost the case it would cost him even more financially and have a greater affect in other ways shall we say stress wise.
One learns by mistakes and has to either live with it or get over it, at least the same won't be made again
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But there's not fault on both sides, as it was a commissioned shoot the photographer needs to prove expressed permission. There's no grey area or misunderstanding, the photographer is in the wrong.

But I would like the OP to update us how she got on, and maybe answer the innocent question of what her actual concern is. Because if I'm honest, for a legal claim, her 'loss' here is a very important consideration.
 
Phil V said:
Then as you can see from the gov.uk site, he doesn't have permission to use those images.
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Whereabouts is that on that site? I followed the link but I can only find a section that seems to say the photographer has copyright :( am i just reading it all wrong......

I'm not questioning that what you say is true by the way, just genuinely interested in the law on this and I'm apparently rubbish as using the gov.uk site :)
 
mjScall said:
Whereabouts is that on that site? I followed the link but I can only find a section that seems to say the photographer has copyright :( am i just reading it all wrong......

I'm not questioning that what you say is true by the way, just genuinely interested in the law on this and I'm apparently rubbish as using the gov.uk site :)
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From this link scroll down to where it says 'commissioned work' and if you can find the actual act I believe it's section 11 (but I could be wrong). The Gov.uk site is constantly being rewritten, sometimes it's user friendlier than others. There's another discussion here where the answer is currently hinted at on HMRCs site, but on a previous version it was explained really clearly.

Oops it's not in that link, it's here in the act though.

And for completeness written in plain English on the gov.uk site
 
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Phil V said:
From this link scroll down to where it says 'commissioned work' and if you can find the actual act I believe it's section 11 (but I could be wrong). The Gov.uk site is constantly being rewritten, sometimes it's user friendlier than others. There's another discussion here where the answer is currently hinted at on HMRCs site, but on a previous version it was explained really clearly.

Oops it's not in that link, it's here in the act though.

And for completeness written in plain English on the gov.uk site
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Thanks :)
 
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