# Need Advice - Unauthorized Commercial Photo Taken in My Business



## Steelh (Aug 14, 2014)

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!


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## Bitter Jeweler (Aug 14, 2014)

I'd suggest consulting a lawyer for real advice, rather than a photography forum.


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## tirediron (Aug 14, 2014)

Discuss this with a qualified attorney in your state.  This is NOT something for which you should seek advice on an Internet forum.


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## SCraig (Aug 15, 2014)

So, you're getting free advertisement in this nice brochure and you're complaining about it because they didn't ask first?  Sorry, but I guess I don't see the problem.


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## robbins.photo (Aug 15, 2014)

I'd have to go with scraig here, if anything I think most business's would be willing to pay the builder to have themselves featured to so many new customers who have the financial resources to buy a house in an upscale housing community.

If you want my advice, save the money and forget the lawyer, spend a few bucks and hire somebody who knows something about marketing instead.


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## CameraClicker (Aug 15, 2014)

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.


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## orljustin (Aug 15, 2014)

CameraClicker said:


> 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.



This, except most do not require a release for property interiors.  Oddly enough, they do for editorial use image, but not commercial ones, assuming there are no other issues.  However, the recognizable people and branding is an issue, so do contact a lawyer.


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## W.Y.Photo (Aug 15, 2014)

Edit: DISREGARD I was very wrong.

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 image.


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## Braineack (Aug 15, 2014)

I didn't give you consent to post on a publically accessible forum, but somehow it happened.


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## Designer (Aug 15, 2014)

Post a link to the picture please, so that we can evaluate the photograph.


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## Tee (Aug 15, 2014)

Would it be considered ironic that someone is on a photo forum seeking _free_ advice about claiming someone took a photo of their business for _free_?


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## CameraClicker (Aug 15, 2014)

Tee said:


> Would it be considered ironic that someone is on a photo forum seeking _free_ advice about claiming someone took a photo of their business for _free_?



It's not the taking of the photo, it's the usage.


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## CameraClicker (Aug 15, 2014)

W.Y.Photo said:


> CameraClicker said:
> 
> 
> > 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.
> ...



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.

By the way, copyright does not give the photographer the right to use a photo any way they want.  It limits, to a degree, what others can do with that photo.  It does not prevent others from using the photo without the photographer's permission, it limits.

Do you use Instagram?  Read their Terms of Service carefully.  Their Terms of Service say that they can license your photo, without paying you, and if someone they license your photo to is sued, you indemnify them.  That means you are on the hook to pay for the settlement, even though you didn't receive the license fee, and were not a party to the lawsuit.

Celebrities are not always fair game.  If you see a celebrity walking down the street, you can take their photo and you can publish it in the local papers.  That is editorial usage.  If you take the same photo and use it to advertise a drink, a cruise, a shirt, or anything else, that is commercial usage, and you will be sued.

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.


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## Braineack (Aug 15, 2014)

wondering if his business isn't on their property and they have a clause in the lease...


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## KmH (Aug 15, 2014)

Steelh said:


> 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.


Absolutely, contact an qualified attorney.

There is no  doubt the brochure is an advertisement, which makes the use of your likeness (and the other people) a commercial use.

They need your permission (a signed model release) to use your likeness to advertise their business. They need the permission of any other recognizable people in the photo too.
You are in California, and California model release law is about the toughest in the country.

Photographers get the model release signed because the photographer is right there at the time the photo is made, and often becomes a publisher of an image by using it for self-promotion.
A model release protects the publisher of the image and any people (models) in the photo.

Recognizability does not require a person's face be visible in a photo. A unique hair cut, a scar, unique clothing, a tattoo, and other things can make a person recognizable.

There is plenty of California case law that supports the notion the residential home builder has some very serious legal exposure because of that brochure.


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## robbins.photo (Aug 15, 2014)

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


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## W.Y.Photo (Aug 15, 2014)

CameraClicker said:


> W.Y.Photo said:
> 
> 
> > CameraClicker said:
> ...



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 (Aug 15, 2014)

W.Y.Photo said:


> 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 (Aug 15, 2014)

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 (Aug 15, 2014)

Steelh said:


> 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.
> 
> ...



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.


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## unpopular (Aug 15, 2014)

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


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