# Use My Photo? Not Without Permission



## abraxas (Oct 6, 2007)

Thought this might be of interest;
http://www.nytimes.com/2007/10/01/technology/01link.html?_r=2&oref=slogin&oref=slogin

Here's the photo;
http://flickr.com/photos/sesh00/515961023/

.


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## oldnavy170 (Oct 6, 2007)

I am a member of Flickr and have known many people to have their photos taken.  For some reason I still upload my photos but to be honest I hope it never happens to me.  I guess I take that chance when I post my photos on the internet.


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## abraxas (Oct 6, 2007)

From what I understand, the ad agency used the photo without obtaining a model release.  The photo was shot and the photographer placed the photo online under 'creative commons' as -ok- to use commercially if credit is given.

From my POV, the photographer had no right to issue such a license and the ad agency had no right to use the shot without a copy of a signed model release.


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## Mesoam (Oct 6, 2007)

to my knowledge most free online hosting goes something like once its posted it is open to public domain...B.S for sure but then again its free hosting...

once i get a site done all of my photobucket pictures will be removed


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## Sideburns (Oct 6, 2007)

Mesoam said:


> to my knowledge most free online hosting goes something like once its posted it is open to public domain...B.S for sure but then again its free hosting...
> 
> once i get a site done all of my photobucket pictures will be removed



Ya, but it's not the photographers rights to give away.  Without a model release you can't use a recognizable person in an ad campaign.


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## craig (Oct 6, 2007)

Fascinating case. It will certainly be interesting to see how this one plays out. The Susan Sontag excerpt really sums it up for me. 

Pleassee! If anyone is serious about their images know and understand local and global copyright laws. Before posting!  

Love & Bass


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## jedithebomber (Oct 6, 2007)

Mesoam said:


> to my knowledge most free online hosting goes something like once its posted it is open to public domain...B.S for sure but then again its free hosting...
> 
> once i get a site done all of my photobucket pictures will be removed



Sorry, but your wrong. In fact I cut this snippet out of the photobucket TOS.

Photobucket 												does not claim any ownership rights in any User Content that 												you choose to post to the Site. After posting User Content 												to the Site,you continue to retain all ownership or license 												rights in your User Content and you continue to have the 												right to use your User Content as you did prior to such 												posting. However, by posting or making User Content 												available through the Site or via the Services, you hereby 												grant to Photobucket a nonexclusive, royalty-free, 												transferable, worldwide license to use, copy, modify, 												prepare derivative works from, distribute, publicly display 												and publicly perform (whether by means of a digital audio 												transmission or otherwise) and process your User Content, or 												any part of it, solely on and through the Site and Services...
​In fact there have been some legal issues in the past couple years weather someone can actually release something into the "public domain" outside of the standing copyright expirations. You do however give Photobucket or other site an unlimited license on you work. Flickr on the other hand has no such statements in their TOS and allow you to set your own license. 

Getting back to the topic at hand. I believe the original photo was CC licenced as attribution only. Meaning the company that took the photo had every right to use it any way they wished as long as they attributed the original photographer. If the photographer did not have a model release it is my understanding that while he had ever right to post the photo, he could not grant any sort of license on the work. Although I am fuzzy on the whole taking pictures of people in public thing.


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## Garbz (Oct 6, 2007)

The ad agency is not in the wrong. If it's under creative commons it's open to use. (depends on which version but i'm sure they looked at that) The photographer had no right to put a creative commons licence which allows commercial use (and yes there are others) without a model release. It's the same as stock images. A company doesn't need a model release to use a stock photo, but the photographer needs it before it gets uploaded. 

This is my logical interpretation, no idea how this pans legally.


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## castrol (Oct 7, 2007)

I don't get it.

Virgin Mobile. They are NOT a little mom and pop operation. 

1. Why do they feel the need to use a photo found on the internet?
2. Why do things like this even get this far? Hey little girl... how about we
give you $5,000.00 for letting us keep our billboard with your picture on it?
No? Okay, $10,000.00.

The advertising alone is worth way more than that.


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## Garbz (Oct 7, 2007)

1. It's not a spectacular picture but if it is what they wanted then they should go for it. Why set up a dedicated and fake shoot to get exactly the same and possibly a worse result.


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## Battou (Oct 7, 2007)

I do not believe a model release is necessary in a public photography giving the Photographer free rein over the use of the photo.

I could be wrong but, Unless Virgin Mobile arranged this shot and/or the shot was taken with the intent to sell to Virgin Mobile or if the Photographer Informed the subject and neglected to state anything about model release forms, there is no fault or leagle violation. 

But Like I said I could be wrong.


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## danalec99 (Oct 7, 2007)

For web, use low rez images _at all times_.


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## MACollum (Oct 7, 2007)

From what I understand, the liability lies with the person who published (Virgin Australia) without securing a model release. I think the court would probably hold the publisher much more liable than the photographer, though because he licensed it for commercal use with attribution only, he could be held partially liable because HE didn't secure a model release. This would apply in the US, I think. 

I wish I could remember the site on which I found the information...


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## Garbz (Oct 7, 2007)

How can their be liability to someone who published a picture which was licenced under creative commons. Technically wouldn't the "publisher" then be the person who opened the picture up under that licence.

I still don't see how in any country virgin could be held liable for using a picture which was for all intesive purposes free to use commercially according to the licence with which they found it.

Battou I believe you are mostly right about this however commercial use brings a whole new set of restrictions. For instance under australian law with which I am pretty familiar, I can take a picture of anyone in public providing they don't expect a reasonable amount of privacy, i.e they are standing in a public place where anyone could see them talk to them etc. I can use this picture for any non-commercial purpose providing it is not derogatory to the person, and the person is not identified by name.

If a person is identified by name or is used for commercial purposes, where commercial purposes is defined as endorsing a product say for instance I slap a virgin tag on the bottom, then I need a model release for every subject in the photo regardless of how or where it was taken.

Now this gets even more interesting because it's international, and it'll be interesting to see who's rules apply, but as far as I can see it is the photographer who needed to secure a model release before he applied the creative commons licence allowing commercial use. As soon as the licence is applied it can be reasonably expected (like in stock photography) that the picture will be used commercially to endorse a product, and any company should be able to use the picture under the assumption that correct releases have been obtained by the original publisher, the photographer.

As much as I hate to side by the big corporations, I don't see how this is anyone's fault except the photographer why blindly applied a licence to a photo without securing the correct paperwork from his subject to do so. That's the australian perspective anyway. I have no idea what will happen under american law since it has been proven time and time again that the american legal system is more a case of flipping a coin rather than sane legal process.


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## table1349 (Oct 7, 2007)

Garbz said:


> How can their be liability to someone who published a picture which was licenced under creative commons. Technically wouldn't the "publisher" then be the person who opened the picture up under that licence.
> 
> I still don't see how in any country virgin could be held liable for using a picture which was for all intesive purposes free to use commercially according to the licence with which they found it.
> 
> ...



Garbz,

I understand where you are coming from on this one but I can see how the corporation using the photo can be held responsible as well.  You basicly said it in your post above. (I high lighted it in red)  That is exactly what the corporation should have secured a copy of from the photographer prior to their using the photo.  To fail to do so was negligent on their part.  

Not much different than you walking into a shop that sells firearms in 
Australia and having someone behind the counter tell you that you really don't need a Permit To Acquire.  When you get caught with that gun you went ahead and bought with out that Permit To Acquiredo you really think that nothing will happen?  

I do think that this will be one of those interesting court cases.  Clearly at least in my mind the Photographer should bear the majority of the blame for the incident.


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## Aquarium Dreams (Oct 7, 2007)

Question:  Under normal circumstances, if a photographer sells a photograph including an identifiable person to a client, does the photographer ever give a copy of the model release to the client, or is a client generally safe to assume that the photographer has secured the model release, so therefore they don't need to so much as see a copy?  

I would think that it would be in the client's best interest to request a model release, but if none of the legal responsibility is on them and all of it is on the photographer, it would probably just be a waste of their time, right?


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## jedithebomber (Oct 7, 2007)

Aquarium Dreams said:


> Question:  Under normal circumstances, if a photographer sells a photograph including an identifiable person to a client, does the photographer ever give a copy of the model release to the client, or is a client generally safe to assume that the photographer has secured the model release, so therefore they don't need to so much as see a copy?
> 
> I would think that it would be in the client's best interest to request a model release, but if none of the legal responsibility is on them and all of it is on the photographer, it would probably just be a waste of their time, right?



I believe the legal blame would eventually have to fall on the original photographer, since they are the one that licensed wrongly. However I would want a model release since anyone wronged would start by suing you and it would be beneficial to have paperwork on file if your publishing the photo. However if it is CC licenced, as long as you keep record that the photo was CC licenced and you followed the licence terms, im pretty sure you would have all the documentation you needed. 

Still wont save you from going to court with a lawyer tho


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## Battou (Oct 8, 2007)

Garbz said:


> How can their be liability to someone who published a picture which was licenced under creative commons. Technically wouldn't the "publisher" then be the person who opened the picture up under that licence.
> 
> I still don't see how in any country virgin could be held liable for using a picture which was for all intesive purposes free to use commercially according to the licence with which they found it.
> 
> ...



It's for this reason I state that I could be wrong. Wile I have fair to descent knowledge of copyright laws, I have neglected to familiarize my self with Privacy laws, due to my personal preference of refraining from posting the pictures I take of people on the internet. In accordance to copyright the photographer was free to place the license as the image is his. This goes beyond that however and enters into the privacy domain as well. 

I am in the process of finding the original image (if some one already found it or finds it before I do post a link) Judging by the rest of the photographers gallery this is a keepsake snapshot glorified. I don't know about you but I don't go to family reunions and church gatherings with a brief case full of release forms. It's unlikely the photographer expected anything commercial of it use wise, If that is the case it was stupid of the photographer to put the license release on to it but not illegal.

Well I guess I can't really say that for fact, I don't use Flicker so I am completely ignorant as far as the licensing options there. So I should ask, are they as simple as "Yes you can use my pictures" and "No, you can't use my pictures"? Or is there an in between "Yes, you can use my pictures - non commercial only"?

In any event the risk to the photographer is slim, the risk to virgin mobile is slim, chances are likely they will just throw some money at her and say shut up and be happy you are on a billboard. Sad but...


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## Garbz (Oct 8, 2007)

Then he should have applied the Creative Commons Licence which excludes commercial use. Still the photographers fault.

gryphonslair99 I see where you are coming from but I guess the final decision would depend on who is considered the publisher. If virgin hire a photographer to do a shoot and then publish the image then they would need the model release forms. However in this case virgin used an openly licensed image which would imply that the image has already been "published" in a way. The photographer is then the one who "published" it and must therefore hold the release forms, thus the photographers fault. I separated the use of publish as a literal term, and "publish" as implied by releasing a photo for commercial use under the creative commons. 

I am applying the same logic as a company which purchased a generic stock photo CD. They do not get the CD with a truckload of model release forms, the original company who published the CD is responsible for those.

Unfortunately the law is too interpretable. Ultimately it doesn't matter if I think it's the photographer's fault, I am not passing the final judgement. It will be interesting how this pans out. Incidentally on the flickr dicussion similar arguments are taking place. All agree the photographer must have had the model release for commercial use, but there are compelling arguments stating that virgin despite the licence still needed the photographer's express permission to use the image.


The original photo has been made private and can't be accessed on flickr any more.


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## Battou (Oct 9, 2007)

Garbz said:


> Then he should have applied the Creative Commons Licence which excludes commercial use. Still the photographers fault.



So there is a non-comercial permit you are saying.



Garbz said:


> I am applying the same logic as a company which purchased a generic stock photo CD. They do not get the CD with a truckload of model release forms, the original company who published the CD is responsible for those.
> 
> Unfortunately the law is too interpretable. Ultimately it doesn't matter if I think it's the photographer's fault, I am not passing the final judgement. It will be interesting how this pans out. Incidentally on the flickr dicussion similar arguments are taking place. All agree the photographer must have had the model release for commercial use, but there are compelling arguments stating that virgin despite the licence still needed the photographer's express permission to use the image.
> 
> ...



I saw that, and also aparently this is not the first time Virgin Mobile has done this either, There was another case I saw turn up on that wile digging around the flicker discussion. You are right this should be interesting to say the least.


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## abraxas (Oct 9, 2007)

Following is the page on creative commons licenses;

http://creativecommons.org/license/

Creative Commons is also named in the lawsuit.

From the NYT:

Was the photographer aware of which rights he was signing away?


> The lawsuit, filed by the Changs&#8217; lawyer, Ryan Zehl, from the Houston law firm Fitts Zehl, also names Creative Commons. Mr. Zehl said, &#8220;as the creator of this new license, they have an obligation to define it succinctly.&#8221;
> 
> He said that the term &#8220;commercial use&#8221; was too vague to inform users of the license and that it was incumbent on Creative Commons to raise the issue of the rights of the people who appear in the picture.



Maybe things would have shaken out a little differently if Virgin Mobile would have had a more positive campaign?



> Her image is accompanied by a mocking slogan &#8212; according to the ad, Alison is the kind of loser &#8220;pen friend&#8221; (pen pal) whom subscribers will finally be able to &#8220;dump&#8221; when they get a cellphone.



That is where I believe VM should assume responsibility for the end use of the photo.  

NYT:


> Damon Chang, Alison&#8217;s brother, wrote in an e-mail message from Taiwan that he &#8220;personally sent Virgin Mobile a complaint letter&#8221; asking for an explanation. &#8220;They responded by saying they are &#8216;promoting creative freedom,&#8217; that they didn&#8217;t do anything wrong,&#8221; Mr. Chang wrote. &#8220;I take that as, &#8216;We didn&#8217;t do anything wrong, hence we could do it again.&#8221;



I think they would too.  I can see future ads coming off like an old Saturday Night Live sketch;

_*"Jane, you ignorant slut!"*_

I prefer not to shoot people- but in the past the few times when I have, I was very careful to include on the release form a short statement saying that the photos would not be used in a derogatory or defammatory manner.

Is this why VM chose to go this route with a stooge -- someone they could insult and not have to compensate appropriately?

I'm thinking the photographer will probably be dumped from the suit.  Too bad it will cost him to get this straightened out that for the most part he didn't have a clue.

Creative Commons?- Yep, blast 'em.  How dare they attempt to circumvent copyright statutes with their own willy-nilly approach?  There's nothing wrong with copyright laws and no need to change anything to accommodate those too lazy or irresponsible to do things right.

The 16 year old minor, Ms. Chang has been recieving calls due to the phrase, "Virgin to Virgin", in the ad.  This was a church group function she was participating in when the photo was taken.  IMO that's damaging her reputation.  I hope they beat the living daylights out of VM and their sneaky little ad agency.


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## table1349 (Oct 9, 2007)

I have to agree with some of the other posters on this little *C-F*.  It's going to be a dandy in court.  This it the kind of case that often makes new law.  I for one will be watching this one real close.  Thanks abraxas for pointing this one out.


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## Payt (Oct 9, 2007)

danalec99 said:


> For web, use low rez images _at all times_.



Live by it, ladies and gentlemen. This could have prevented the legal issues and bother at hand, it's only common sense.


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## Aquarium Dreams (Oct 10, 2007)

It seems that people view CC licenses as a fast and free alternative to copyright, and don't realize that they're actually signing away their rights.  The photographer obviously wasn't very clear on what a CC license does, because the first thing he said was, "Do you think they'll give me free stuff?"  Durrr, no, you gave your photos away for anyone in the world to use for whatever purpose they desire.  

This was just some guy uploading snapshots who checked a few boxes in the spirit of sharing, not a professional with any knowledge of the law, which is something people usually have when they've got their act together to the point that they're carrying around model releases and applying for copyrights.  If it's the photographer's responsibility to get a model release, it should be Creative Commons responsibility to inform photographers under what circumstances and for what licenses they need model releases.  And while "commercial use" sounds obvious to everyone here, it's not everyday language for most people.


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## danalec99 (Oct 10, 2007)

Digital has brought photography to a wider audience.
The average DSLR user is taking 'good' photos now.
Nothing is going to stop from people giving their images for free. I don't have a problem with it anymore.

What I dislike the most is that big companies/broadcasters with solid advertising budgets scan places like flickr for free images, all in the name of 'creative freedom'. The wide-eyed casual shooter will jump at the chance to be 'published'. The buyers are exploiting just that.

CNN has a group on flickr for freebie 'citizen journalism' work.
Reuters does not pay one penny for citizen journalism.
Don't tell me since the images were shot from a cell phone it has no value. If it has no value why are you publishing it on your web/print?

It was a big surprise, but the only company (as far as I know of) that pays for citizen journalism is Getty. The photographer gets a 40% from the sales generated. All they need is an exclusive worldwide license for 12 months. Check out Scoopt if anyone's interested.


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## Garbz (Oct 10, 2007)

Aquarium Dreams said:


> If it's the photographer's responsibility to get a model release, it should be Creative Commons responsibility to inform photographers under what circumstances and for what licenses they need model releases.  And while "commercial use" sounds obvious to everyone here, it's not everyday language for most people.



I disagree a bit. If it's not everyday language and you don't understand it then don't sign it, simple as that. This is a licence. It is a legal document. Frankly I have no sympathy for those who tick boxes without reading the terms and conditions. I even read the paperwork the delivery vans drop off with their packages before I sign them, even though in Australia the terms and conditions are void if they are not assumable for a situation. i.e. if the delivery man asks me to sign and I sign away my house because I didn't read it properly it's not enforceable, but in this case the guy was signing a licence to distribute photos and there's nothing out of the ordinary in the CCL that isn't in many other open licences.



danalec99 said:


> What I dislike the most is that big companies/broadcasters with solid advertising budgets scan places like flickr for free images, all in the name of 'creative freedom'. The wide-eyed casual shooter will jump at the chance to be 'published'. The buyers are exploiting just that.



I don't see what you're getting upset about. Just because someone has money doesn't mean they should spend it. Expensive photoshoot vs selecting from a pool of previously published photos. Frankly you can dislike the companies all you want but I see nothing ethically or morally wrong. If you don't want this to happen to you or your photos then disallow commercial use if you insist on applying the CCL. It is simple as that.

What annoys me was already said but I'll say it again for emphasis; people who sign something or tick boxes without reading or knowing the implications of what they are doing and then crying bloody murder when something happens which they have expressly allowed. (unrelated to the case)

Btw am I the only one who doesn't find anything remotely wrong derogatory or otherwise bad about the slogan in the virgin ad? I don't even see how "dump your pen friends" relates to the picture in question.


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## danalec99 (Oct 10, 2007)

Garbz said:
			
		

> Just because someone has money doesn't mean they should spend it. Expensive photoshoot vs selecting from a pool of previously published photos. Frankly you can dislike the companies all you want but I see nothing ethically or morally wrong. If you don't want this to happen to you or your photos then disallow commercial use if you insist on applying the CCL. It is simple as that.


I'm least interested about how a company uses their funds. All I'm saying is don't play the 'creative freedom' card, when YOU (not you Garbz) make a profit out of my images. 
And yes, this can be avoided by ticking the right boxes. 

As for the OT, I had not read in detail, but the impression that I gathered was that the photographer CCL-d the image, and Virgin Mobile provided the link to his(her?) work as required by the CCL Attribution. I thought it was the photographer's fault. Like I said I don't know the story in detail, so I could be wrong.

You will find truck loads of discussions on CC and copyright violations at flickr.  Hit this group called 'FlickrCentral' and type in CC in the Search Discussions box.


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## JHF Photography (Oct 10, 2007)

Aquarium Dreams said:


> "It seems that people view CC licenses as a fast and free alternative to copyright..." "...which is something people usually have when they've got their act together to the point that they're carrying around model releases and applying for copyrights."


 

Why would a photographer feel the need to apply for copyrights of their images? I was under the impression that as the creator of an image, we had an automatic copyright of that image.


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## table1349 (Oct 10, 2007)

JHF Photography said:


> Why would a photographer feel the need to apply for copyrights of their images? I was under the impression that as the creator of an image, we had an automatic copyright of that image.



Well technically you do but Prove it in a court of law.  

That is why there is copyright.  It is proof in a court of law.


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## Garbz (Oct 10, 2007)

But how does the CC provide copyright? Who's to say I don't jump on one of your gallery posts gryphonslair99 take one of your images and apply the CCL? I actually didn't understand what Aquarian Dreams was saying myself.

danalec99 I see where your coming from now. Shouting about creative freedom from the hills while screwing the artists behind them is wrong in my books.


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## Aquarium Dreams (Oct 11, 2007)

Part of what I'm trying to say is that licensing an image for commercial use shouldn't be as easy as ticking off a box.  Before CC licenses, if a photographer wanted to license an image for commercial use, they had to jump through hoops which effectively check and balance ignorance.  Stock photography sites are examples of this.  When you upload images, they explain that if you have images of identifiable people, you will need model releases, which they offer for download.  Even if the photographer in this instance doesn't read this information and sends images without model releases, the human who receives the images will check to see if it is there and reject the image if there is no model release.  

Until the CC licenses existed, there was no possible way that the Virgin Mobile situation could have happened.  It wouldn't have been possible for an image to be licensed for commercial use without the proper paperwork AND used by a company without any communication between the company and the photographer.  What CC has done is created an enormous stock photo database that is entirely unregulated, and for that they should bear responsibility.  

CC targets amateurs who are ignorant about the legal and business ends of photography, enables them to make their work available on a scale that they equally ignorant of, and then fails to inform them about the rights and responsibilities involved.  Considering this, CC should also bear some of the responsibility for educating people, not simply about their licenses, but about copyright, model releases, and the legal and business ends of photography in general, since their licenses directly tie in with all of these things.


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## abraxas (Oct 11, 2007)

The more I look at Creative Commons the more I see how it is about getting artists/photographers to sign away their rights under the guise of 'licensing.'

Here's the CC public relations response to being named in the lawsuit;

http://creativecommons.org/weblog/entry/7680


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## table1349 (Oct 11, 2007)

Garbz said:


> But how does the CC provide copyright? Who's to say I don't jump on one of your gallery posts gryphonslair99 take one of your images and apply the CCL? I actually didn't understand what Aquarian Dreams was saying myself.
> 
> danalec99 I see where your coming from now. Shouting about creative freedom from the hills while screwing the artists behind them is wrong in my books.




I was meaning that here in the US at least, putting my photos on a disk, sending them in to the U. S.Copyright Office , paying my money and receiving an official copyright for them.  If this was a business thing for me I would never exhibit photos that I had not already received a documented copyright for.   That will stand the test of ownership in a court of law.


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## JHF Photography (Oct 11, 2007)

Would the original RAW file not be a reasonable amount of proof of ownership?


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## abraxas (Oct 11, 2007)

JHF Photography said:


> Would the original RAW file not be a reasonable amount of proof of ownership?



.JPG/.TIFF from the RAW would be best/easiest to read.

http://www.copyright.gov/register/visual.html

Also note works can be pre-registered and as a group, ie;photographic works between 1/1/07 - 6/1/07 etc.


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## GreenGate3000 (Oct 25, 2007)

i agree with the statements above. i would be really disappointed if someone used any of my pictures without permission. I don"t understand why people would resort to stealing your personal photos when there are so many good stock photography web sites out there. when ever i need a good photo i go to http://www.glowimages.com/  glow images. They have a really good selection  of different images. the best way to be on top of this problem is water mark your work or try to be aware by searching online as much as you can.


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## Garbz (Oct 26, 2007)

Well really it wasn't stealing. The photographer gave it away.

As long as you don't post images any higher than viewing size like 1024x768 the ultimate use of the image for anything other than a desktop wallpaper is limited anyway.


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## fmw (Oct 26, 2007)

Battou said:


> I do not believe a model release is necessary in a public photography giving the Photographer free rein over the use of the photo.
> 
> I could be wrong but, Unless Virgin Mobile arranged this shot and/or the shot was taken with the intent to sell to Virgin Mobile or if the Photographer Informed the subject and neglected to state anything about model release forms, there is no fault or leagle violation.
> 
> But Like I said I could be wrong.


 
Unfortunately, you are wrong on all counts.


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## JerryPH (Oct 26, 2007)

For the moment, I've made all my pics private except to family and friends... I'll go through them one by one and make public the ones that I wish (the ones that I feel are of no commercial value).

Though chances are extremely low, I refuse to be exploited or taken advantage of. 

Traditionally my best pics are not shared online, I keep them on my computer under my thumb, but it seems that near any pic is a potential target. I'll be very selective as to what I make publically available from now on.


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## Garbz (Oct 28, 2007)

Thats really a sad case where we can't share our best works anymore. I still have all my best public but they are sufficiently low resolution to not be printable.


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## table1349 (Oct 29, 2007)

That is the exact reason I have no links to my photos.  They are all for Family or for the Athletes, their families and the Athletic Staff of the Collage I shoot for.  Not worried about theft among those that have access.


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