Hello I have a problem, amybe someone can help me, I was working for an agency/"referrel" service, I was asked by the agency to pay their photgrapher for some professional pictures, I as well as the agency has a copy. The photgrapher mailed them to me. Now I ahve since quit working for the agency for various reasons., I started advertising for myself with my new pic that I paid for. The agency writes me an email demading to take the pics down that I had 24hrs. I took them down, not knowing, is that legal when I paid for them and I have my own copy. Also please please answer this one as well, it's been a week since I've quit they still have my pics on their website , isn't that false advertising? Can I take legal action on them, I've asked them to take it down as of right now they are still up, and I quit on the 7th of Feb.
legal advice is needed
Thanks
{disclaimer: I'm not a lawyer}
What it will come down to is what agreements were signed between you, the agency, and the photographer.
If nothing was signed, then the photographer owns the copyright on the pictures (usually). Even if the photographer gave you a copy of the pictures, you can't publish them without the photographer's permission. You aren't allowed to "copy" them, only the photographer is. The agency can't use them without permission either.
It's also possible that the photographer signed something giving the copyright to someone else, such as you or the agency. If the photographer gave the copyright to the agency, then you need their permission to publish the pictures. If the photographer gave the copyright to you, then you can do whatever you want with them.
Muddying the waters even further, it's possible that a court would consider the pictures to be "works for hire", in which case the copyright is given to whoever paid the photographer. That wouldn't automatically mean you, though. If you paid the agency then the agency paid the photographer, the agency can claim you paid an "advertising fee", and they paid the photographer.
The least complicated solution would be to get some new pictures taken. Your other options are going to depend greatly on whatever agreements were in place.
When one person pays another to create some intellectual property, like copyrightable photos, the resulting product is considered a "work for hire" and the buyer owns it. (Foo's answer mistakenly says that whether the photos are works for hire will be up to the judge, but if the photographer was paid and has no contract saying otherwise they are works for hire as a matter of law.) Normally the buyer is whoever paid for it, but if there's a contract which said the pictures would belong to the agency and not to you then you may not own them after all. This presumes the contract is valid, which may not be the case.
It may be that you paid only for the prints and that the agency owns the copyrighted images themselves. If you own the copyright then you get to decide who can use it, but if they own it they get to make that call.
The false advertising question is tricky. Usually only someone who has been harmed by the advertising (this generally means a customer) can sue, but there are state laws which sometimes let anyone bring this kind of action. Those laws were targeted by a recent ballot initiative and offhand I don't know their status.
Even if you can sue you would be taking a big chance. It will be very hard for you to explain why an escort agency has your photos without admitting what you do for a living. Even if the court doesn't care and even if you don't end up admitting you committed any crime, the record of your case (which will have your real name on it) will remain on the books for anyone to see. It could come back to haunt you later if you ever need a background check done.
The agency may be reluctant to actually sue you for similar reasons. Did the email demanding you take them down come from them or from a lawyer? If it's from them there's a very good chance they're bluffing. There's no guanrantee though.
Here's another problem. If you go to court you will probably have to explain how the agency's use of the photos is harming you. Do you really want to explain how you make a living, what you make and how clients would recognize you from photos which presumably show a lot of skin but no face?
I'm not really sure what you hope to gain by suing, or by fighting if the agency sues you. How expensive can it be to get new pictures for your site? How likely is it that people who would seek you out will mistakenly go to the agency because they recognize your photos? This fight will probably be more trouble than it's worth.
-- Modified on 2/15/2006 9:30:28 PM
quote:
Foo's answer mistakenly says that whether the photos are works for hire will be up to the judge, but if the photographer was paid and has no contract saying otherwise they are works for hire as a matter of law.
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My point was that the 'default' situation would be that the creator of the work retains copyright. Being paid for that work does not necessarily mean the copyright goes to the person paying for the work. For example, your typical wedding photographer will receive copyright on the wedding photos if there is no agreement in place.
However, if the issue goes before a court, the court may rule that it really was a work for hire, and that the photographer did not have the copyright.
Thank you, and maybe your were right as far as the bluffing, I played her at her own game and she immed. removed my pictures off of her site. I am going to take more pictures this Sun, with coincidently the same photographer, who also wants to be my manager for future modeling , and I do truly mean modeling jobs. I did pay him out of my own pocket but for sake of all arguements I am taking new ones, and this time I will make sure I have the copywrites to them. Thank you everyone for your input. I do appreciate it.
ps i think i sent a post asking if if i had to be special to get answers , SORRY i was too anxious.
mistress dominique are you based in the DFW area?
sorry - you guys might be great in certain areas of law - but in this one -- you are both way off in the first most important part of photos and copyright law. the SUBJECT of the photo (who is IDENTIFIABLE just by appearing in person in court) MUST sign off on a MODEL RELEASE for any PHOTOGRAPHER or AGENCY or ADVERITISING AGENCY or INTERNET SITE etc. etc....to use her photos (they also must have a copy of her ID to prove she is of age BEFORE using the picture in any reproduction). it is SIMPLE!!!! whether or not she was paid or worked for time for pictures or CD or paid for them herself is NOT THE POINT -- once they see she is the subject, the rights are HERS unless she signed them away...PERIOD. if she also took the steps to COPYRIGHT the pictures then she is able to sue for a minimum of $25,000 up to $100,000 per infraction/occurrence (use of each of her copyrighted pictures). So that agency is BLUFFING and they know it -- find a lawyer to work on contingency and insist on a small settlement for your time and duress in having your image used without your release or permission--- and insist that they "cease and desist within 24 hours by taking your pictures down off their site and never using them again for their financial benefit"). I have gone to court with the most powerful lawyers in this country on this issue and know the ins and outs. Go get them so they don't take advantage of the next naiive girl! And stay away from agencies if you know what's good for you (working with them involves federal charges that you would not face as an independent on a first offense).
{disclaimer: I'm still not a lawyer}
Age verification is only required if the pictures are explicit. If they're "glamor shots" then no age verification is required.
A model release would not help here either. If it was actually required, then she would have already signed one for the agency to use the pictures when they were initially taken. Also, someone who posts a lot of recognizable pictures of themselves on the web might be considered a public person, so that no release is necessary for anyone to publish the photos (think tabloids and Hollywood stars).
The subject of a photograph has no copyright to the photograph (barring an agreement otherwise). The art was created by the photographer, it happens to include a particular individual.
Also, there are no "steps to COPYRIGHT" the pictures. Copyright happens automatically when the pictures were taken. Who receives that copyright depends on what agreements are active when the pictures are taken. Now, she could try to register the copyright, but that's going to be a lot of effort for little utility.
And as we both said, the rights are not necessarily "HERS unless she signed them away". If there was no agreement, then the photographer can make a claim to the copyright, and she can make a claim to the copyright as a work for hire.
And, btw, what federal charges would an agency girl face? With 2 exceptions, prostitution laws are state laws. The 2 federal laws come into play if the provider travels across state lines for the sole purpose of prostitution...so go do some sight seeing while touring.
-- Modified on 2/18/2006 12:53:20 AM
Yes it is clear you are not a lawyer. Any form of nudity (implied or otherwise) requires identification if you are representing yourself as an agency or an advertising web mall -- check your facts before responding here and giving dangerous advice.
i have worked with the top copyright and criminal lawyers in the business on copyright infringement and everything you say is WRONG. models own the images -- NOT THE PHOTOGRAPHER OR CLIENT. a model is paid for the photo shoot only AFTER she signs a model release -- WHY? -- because SHE has to release use of HER IMAGE! it is not the image of the photographer or client. and every top model or working model COPYRIGHTS her photos and of COURSE it is an easy process --- again CHECK YOUR FACTS FIRST. the only reason a disreputable agency takes down photos they are misusing is because they are advised by their counsel that they are facing an infringment lawsuit -- otherwise every site would have heidi klum or carmen electra on their site with a semi blurred face. get real and don't give advice here when you are not a lawyer, it could damage a girl's situation. as for federal charges -- take two seconds to invesigate threads on this board and familiarize yourself with THE LAW.
a decent graphic program can cut your body out of their background and in front of a background of your choice
just because you pose the same way and wore similiar clothes, doesn't mean it is theirs
You can even alter the color of your clothes w/o altering your skin too.
Thank you all , your advice was very helpful , all i signed for that agency was an employee app, and there was no fine print giving her all access to my photos, nevertheless she removed them , and i will continue to use my photos. thanks again
First of all, if you signed a legal model release with this agency, it would be a little difficult to get them to remove the pics, but not impossible.
Remember what kind of buisness this is. Your pics are your own they can't order you what to do. Are they afraid of something? You however should let them know if they don't remove the pics, that you will seek legal action.Ofcourse that is just your word against theirs but they shouldn't under estimate you could. Understand? never be afraid to stand up to others and its how you speak to them, if they refuse, then seek action and start posting different places, those pics and that agency have "NO AFFILATION" to you what so ever!
just keep pressuring them, in time they will realize its best to remove your pics.