All photographers out there will understand this. And you boudoir photographers will likely feel as sick to your stomachs as I did when I tell you about a recent situation regarding model releases and boudoir photos being shared on the internet. I’m going to give you a scenario and then discuss the issues and how to protect yourself and your business. This scenario is fiction but is based on a real -life fact pattern that occurred recently.
(And, I know I’m viewed as the Pinterest Slayer right now but I want you all to realize that this problem is not unique to Pinterest – it can be the same scenario with lots of sites out there. So, for purposes of this scenario, I am going to use the fictitious site of “Sharemore” so that I’m not singling out just one of the many sharing sites in existence today. The purpose of this article is not to hate on sharing sites as I think they can be very valuable to portrait photographers. The purpose is rather to get you all thinking about how to safely and smartly conduct your business on-line).
Here is the story:
A photographer – let’s call him Boudie Shootie (mainly because it’s such a silly name I figure there is no way that I’m going to be accused of singling out someone who might have this name) conducts a boudoir session for an excited bride-to-be (we will call her “Boudie Bride”).
Boudie Bride and her fiancé are both in the business world with high ranking jobs at good companies. In the South (those of you from the South will understand why this is important). They are thrilled with the photos and Boudie Bride is so thankful to Boudie Shootie for making her look so beautiful. At the proof viewing Boudie Shootie asks the couple if it would be okay for him to post some of the photos from the session on Boudie Shootie’s website. Boudie Bride’s fiancé seems hesitant but Boudie Bride says “oh honey, these are classy and beautiful and I’m not showing anything people don’t see when I’m at the beach. Plus, they will just be on his website. Nobody from work will ever see them as they aren’t going to be searching for boudoir websites online.” (insert dramatic music here – da da DA DAAAAAHHHH). The fiancé reluctantly agrees and Boudie Bride signs a standard model release which allows Boudie Shootie to post the photos on his website and blog and waives all claims Boudie Bride may have against Boudie Shootie for publishing said photos. Boudie Shootie can see that the fiancé is nervous (after all, the fiancé is walking in circles mumbling something about vice presidents and bosses and such). So, Boudie Shootie verbally assures the couple that if they decide in the future that the photos should no longer be shared he will be able to remove them from his website without a problem (more dramatic music).
Fast forward one year. The internet has exploded with on-line sharing sites. There are too many out there to keep up with. Boudie Shootie uses a few of them himself but there is no way for him to really know what’s going on with some of these sites. One day he receives a call from Boudie Bride’s now husband. The husband says “Hey, so, I saw my wife’s pictures on Sharemore the other day after a coworker posted them on her page. When did you put my wife’s photos on Sharemore and why are other people posting them?” Boudie Shootie thinks fast and recalls hearing about Sharemore and something about other people sharing photos they find around the web but he doesn’t know much more about it than that. He explains to the husband that he doesn’t use Sharemore but will find out. He also reminds the husband that Boudie Bride signed a release. The husband’s reply is along the lines of “yeah, for YOU to use YOUR photos on YOUR site where you can control them.” Boudie Shootie’s heartbeat picks up a tad as he recalls the circling and mumbling and he assures the husband he will look into it. What he finds is disconcerting. Turns out Sharemore is a sharing site where other people can go to your website and copy the photos you have posted and share them on Sharemore. Once there, others can reshare and reshare. And once on the site, simply deleting it from your own website does nothing to remove the photos from Sharemore.
So now what does Boudie Shootie do?
Freak out? Cry? Tell the husband “tough cookies, your bride signed the release and there is nothing I can do? Maybe close his photography business and go to law school? Okay, okay, I realize now I have gone too far. But seriously, what would you do? Let’s look at some of the issues:
- THE MODEL RELEASE
So, Boodie Shootie did the right thing to begin with by getting the model release, right? Good start. But was it enough? In this scenario we know that Boudie Bride signed a standard model release that allowed Boudie Shootie to post images to his website and his blog. We don’t know the exact language in his release but does it really matter since he didn’t, himself, post anything to Sharemore? The answer is, it might. If the release was narrowly drafted to give the photographer the right to post images to his website only, the client may be able to claim that Boodie Shootie should have done a better job protecting the images from unauthorized use. Especially since she and her husband vocalized concern over the photos being seen by people who wouldn’t ordinarily visit Boodie Shootie’s website. In today’s world where entitlement reigns and the majority of people in the world believe “if it’s on the internet then it’s mine to use”, photographers need to be very careful in protecting themselves AND their clients. A good model release nowadays needs to specify that the client is giving the photographer all rights and licenses to use photographs containing the model’s likeness in all forms of advertising both in print and online in Photographer’s sole discretion. It needs to include websites, blogs, Facebook, Twitter, Pinterest, Flikr, Tumblr and all other social media and online services. The release should also include a full waiver of claims by the model/client against the photographer for use by the photographer and for use, whether authorized or unauthorized, by third parties. I would also suggest adding a statement to the effect of : “Client hereby acknowledges and agrees that once the Photographer posts said photographs online, Photographer may no longer have control over further dissemination of such photographs by others and Client hereby indemnifies and holds Photographer harmless from any and all claims, damages and/or liability for publication of the photographs by Photographer or unauthorized third parties.”
“But, that is going to scare my clients away and NOBODY is going to allow me to use their photos!!” you may be thinking. Well, you may be right. But isn’t it better that your clients and you know what you are getting into before something happens like the above scenario and you find yourself in Boudie Shootie’s shoes?
2. SHAREMORE AND THE WORLD WIDE WEB
Okay, so your photos end up on Sharemore. And now you want them off. ow do you go about getting them down? Frankly, you may be up Boudie Shootie Creek without a paddle - especially if you posted the pics yourself on Sharemore. By doing so, you likely gave up any right to complain if they are shared or re-used by other people. Did you read the terms of use of Sharemore? I’m betting you did not, but likely the terms of use give Sharemore the right to allow the use of the photos on the site by Sharemore and others and also contains some granting language giving licenses, etc to use your photos. So basically, don’t post on third party sites if you want control of your photos. BUT if your photos were posted there by others, without your permission, you may have some recourse. Depends on Copyright law. If you are thinking “Oh great. Now I’m royally screwed,” you might be right. It all depends on whether the use of your photos on the site is an infringement on your copyrights or if it is fair use. Yes, that’s actually a legal term and has a complex legal definition and analysis rolled up into it. IF the use of your photos on those sites does in fact fall under the Fair Use exception to Copyright laws (which they very well may), you cannot demand that they be removed. Basically the “Fair Use” exception is a statutory exception to protection (now we are rhyming. This is getting ugly). However, if the Fair Use exception does NOT apply, you can demand that your photos be taken down and the site provider, by law, must remove them. “But which is it?? How do I know if it’s this ‘Fair Use’ you speak of?“ Good question and I hate to say, I don’t have your answer to that. See my previous blog posts and the tons of commentary following to see what I mean. Fair Use analysis is very fact specific and the law is not black and white on the issue. The opinions on it, both legal and layman, are all over the place. Which means you and Boudie Shootie are essentially at the mercy of the site provider. What you should do is send a takedown notice informing the site that your photos are being used without your permission and that your copyrights are being infringed upon and demand that your photos be removed. Most sites will accommodate this. If they do not, contact an IP lawyer and talk about your options.
“So now I’m spending legal fees just to remove my own photo from some website that doesn’t have my permission to display my work??” Um, yep. Welcome to 2012.
3. PROTECT YOUR BUSINESS AND YOUR WALLET WITH GOOD WILL AND SMART MARKETING.
Okay, assuming that Boudie Shootie’s model release was all that it needs to be and legally he is protected from liability to his client whether or not Sharemore agrees to remove his photos, should he tell Boudie Bride “sorry babe, nothing I can do” and keep business as usual? Or should he perhaps rethink how he conducts his business online and also how he educates his clients? Obviously, the service we provide to our clients does not end when the product is delivered. Our past clients help bring us new clients – but ONLY IF THEY ARE HAPPY CLIENTS. Even if a client gives you permission to post photos, she may change her mind later. Maybe she was young and immature at the time of the shoot. Maybe her life circumstances have changed and she is now going for a really important job at a conservative company. Maybe she is running for office (oh wait, that might actually help her nowadays). Regardless of the situation, I would suggest that if a client later changes their mind and wants their photos removed from your portfolio, you should remove them regardless of the model release they once signed. Of course, you may not be able to remove them from sites such as Sharemore but you should explain to the client that you will remove the photos to the best of your ability and then take necessary steps to do so. Of course, educating your clients up front will help with this process. When Boudie Bride’s husband expressed concern over others seeing the photos, Boudie Shootie probably should have said right then “you know what? Stop the mumbling and circling. How about if I only use them for in-studio viewing and I won’t put them on the web because I can’t control what happens to them once posted on the web.” Yeah, I know that’s not going to help make your website look better, but you can be sure that your honesty and proactive concern for your client is going to bring rave reviews by the client when she is talking with her friends who share her concerns over privacy. For your online portfolio, consider hiring models. You are paying them for the rights to use their likeness and that makes a BIG difference. They are receiving compensation for your right to post the photos where you want. They are not your clients and if they later change their mind, it is a lot easier to say “I’m sorry, but that’s what I paid you for.” Paying models for shots does mean a bit more overhead for you, but it will likely be worth the peace of mind.
- DO YOUR RESEARCH.
Don’t use the internet to promote your business until you know the internet. And then be flexible enough to change it up as the internet changes. Keep abreast (boudoir pun intended) of what sites are out there. But don’t just follow the masses and jump in and start using a site until you know what it’s all about. Take the time to learn about how the sites work, what their rules of etiquette are and, for Boudie’s sake, READ THEIR TERMS OF USE (I know, I know, zzzzzzzzzzzzzzzz).
The bottom line is that you will be in a far better position to protect your business and your wallet by first knowing what you are dealing with, second educating your clients accordingly and third using good legal documents to put it all into writing.
So what happened with Boudie Bride and Boudie Shootie? Well, Boudie Shootie got Boudie Bride’s images off the internet (or at least he THINKS he did although I’m sure someone at Facebook has everything in a folder and will someday use it all to RULE THE WORLD), he hired some models for his portfolio, created some really fantastic images and signed a commercial deal with a high profile advertiser and is making millions. Boudie Bride went to law school and is specializing in intellectual property law and international law and plans to make her millions revamping the laws around the world to provide better protection for artists and a safer internet for its users. She also believes in unicorns and searches the sky for rainbows.
THE END
P.S. If you would like some info on good model releases, feel free to contact me via email at kirsten@ddkportraits.com or check with your local PPA.
show hide 2 comments