# My photos are selling products without my consent



## andrewdoeshair (Sep 14, 2019)

I hope this is the appropriate place to post. Some photos I took a few years ago have been making the rounds on hair ads to sell product (the funny thing is that there was no product used in the styling). I haven consented to any of this. Most of the companies are small and it’s just annoying, but a large company just started using the photos and I really want to do something about it. Does anyone know how I can start? Thank you


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## Original katomi (Sep 14, 2019)

Have you tried contraction them and saying Hi you are using my images, they may be under the impression that the images are orphaned. Their reply or lack will give you an idea of what to do next
A reply of oh sorry we could not trace the owner, can we please use them and at how much
Then you can be nice and say ...... something y/n  cost credits on the image
A reply of so what.....or equivalent then it’s time to remind them of copyright law and maybe mention that  not only can you use the law of the land but you tube, Facebook, Twitter will give a world wide coverage to Their mis use of your images.

Just be 200% sure they are your images, otherwise egg is on your face


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## tirediron (Sep 14, 2019)

Contact them and tell them that they're using your images, to which you have not assigned rights, without consent or remuneration.  Tell them they have 30 days to remove them unless they want to pay for them.  You could also send along an invoice for the value of the use they've already received, but I wouldn't hold much of getting that paid.  I would start politely, but firmly and escalate from there.


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## smoke665 (Sep 14, 2019)

Interesting little tidbit from the FAQ on copyright law, there's an exception, that I don't know if it covers you or not. The copyright in a work initially belongs to the author(s) who created that work, however, in the case of "Work for hire", the author is not considered the individual who actually created the work. Instead, the party that hired the individual is considered the copyright owner of the work. Whether a work is made for hire is determined by the facts that exist at the time the work is created.

Another issue on the ownership of the copyright, was this you or another person. I am assuming this was taken in a nonpublic setting with the subject's knowledge. As such if it's another person, do you have a written assignment of copyright or other legal agreement covering the ownership?

Finally there's the ugly little "Fair Use" exception. If you’re only  just using a portion of the face from an image, (as in your example) there's a good chance they could argue fair use.

You'll likely be able to bluff smaller companies into pulling the images, rather then risk fighting it in court, but a larger company may force you to "prove it".


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## vintagesnaps (Sep 14, 2019)

These are your photos that you took, aren't they Andrew? If so look up how to do a DMCA takedown notice. You could do that with smaller companies to ask them to stop using your photos without permission. With a larger company send the takedown notice and/or find out how to send that along with a contract for them to license usage of your work. 

Try American Society of Media Photographers - Homepage for info. on how to do a take down notice and contract to license usage. They have info. available to non members. 

Make sure you check Terms on sites where you're posting your photos; some Terms allow for other site users to use your photos. You do good work, you want to make sure you protect your work, your time, your talent.


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## andrewdoeshair (Sep 14, 2019)

Thanks for the tips, I’ll have to read them more deeply when I’m not on a break between clients. These photos were taken of a 15 year old boy who saw me for a haircut, then shared on my Instagram. I didn’t get any written consent from him or his parents, I don’t know if that negates my rights to the images. When I asked the company for credit or removal they blocked me on Instagram. From other accounts I can see that the image is still being used. It would be one thing if the account was just freebooting and stealing images to build a following so they can sell a few ads, but because they’re using it to directly sell a product, I want it stopped. Or I want some of their profits on that product. This happens allllllll over Instagram, and I hate it. I’d even lose some money making them “pay” somehow, just so companies will think twice before ripping off the little guy. I dunno. I’ll probably do nothing. It just sucks.


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## vintagesnaps (Sep 14, 2019)

It wouldn't affect the rights; you own copyright of any photos you take. It could affect usage if you didn't have the parents sign a model release. ASMP has a sample model release, a 'pocket' release, and an app. You're  probably limited to editorial use or maybe a fine art print (for the buyer's personal use to hang on the wall).

I don't do Instagram. (I read the Terms and never went back, they need people to use the site more than I need them and don't feel like I'm missing a thing!) But for a business it might be necessary. Think about what you're sharing, and even though watermarks can be removed you might need to think about using them (I customize the color, light/darkness, etc. for individual photos, but don't share much online.) to at least make people think twice if they want to bother to have to remove watermarks or just go find something else to steal. 

You won't lose money issuing a takedown notice or licensing usage. And where else can you find this company's contact info. to do either of these? They're using it for commercial (advertising, business) use. The more you get informed the better you can take action on something like this.


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## tirediron (Sep 14, 2019)

smoke665 said:


> ...Finally there's the ugly little "Fair Use" exception. If you’re only  just using a portion of the face from an image, (as in your example) there's a good chance they could argue fair use..


"Fair use" is for critique, education, etc.  I don't believe there's any fair use caveat when an image is being used commercially.


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## Original katomi (Sep 15, 2019)

A lot of good advice from others there let us know how you get good luck


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## smoke665 (Sep 15, 2019)

tirediron said:


> smoke665 said:
> 
> 
> > ...Finally there's the ugly little "Fair Use" exception. If you’re only  just using a portion of the face from an image, (as in your example) there's a good chance they could argue fair use..
> ...



 Section 107 of the Copyright law calls for consideration of the four factors in evaluating a question of fair use:

1. _Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes_:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. * This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair;* instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.

2. _Nature of the copyrighted work_:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression.

3._Amount and substantiality of the portion used in relation to the copyrighted work as a whole_:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely.

4. _Effect of the use upon the potential market for or value of the copyrighted work_:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work.

So "fair use" is not a hard black line (commercial/noncommercial) without comparing all four factors, which requires a court to decide. Even then the courts may interpret the four factors differently. In a case last year https://petapixel.com/2018/07/02/court-rules-copying-photos-found-on-internet-is-fair-use/ on the first factor, the court ruled the photo was used on a "commercial site" in a "noncommercial way".

The law is a pit of gray matter even for attorneys and you have to consider everything that the court might take into consideration. I already mentioned the "work for hire" exception, but there's also the "clean hands doctrine".   Legal Dictionary - Law.com The OP mentioned earlier that the photo in question was of a minor, and he didn't have a release. Not clear is if he posted to social media or if the minor did. At the least, without a release I would guess a defendant's attorney would argue _locus standi. _
Standing

As I said earlier most smaller companies would take it down rather then incur further legal expense, a larger company with in house legal staff, may or may not. Collecting from either would likely require litigation. Sending takedown notices doesn't cost much, but before I went much further I'd contact a competent attorney versed in copyright law. It might suck, but sometimes winning the battle cost more then it's worth.


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## tirediron (Sep 15, 2019)

Damn...  okay.  I certainly stand corrected.  I was certain that US copyright excluded commercial work from the fair use caveat.  It seems completely wrong to me that someone can use someone else's work to make money!


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## smoke665 (Sep 15, 2019)

Having been on both sides of the aisle over the years as litigant and defendant, I can say that there were many times I felt like the law was wrong. LOL I've also learned that when on billable hours, a lot of wrongs can be lived with.


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## vintagesnaps (Sep 16, 2019)

I don't know where that came from but it's NOT from the US Copyright Office website. It's been rewritten by someone and isn't completely accurate (some is directly quoted but much of it is not), especially the last two paragraphs. There are no citations as to where someone came up with that info. 

Here's what the US Copyright Office says. 

More Information on Fair Use | U.S. Copyright Office

It talks about what may be considered fair use related to 'Nature of the copyrighted work' (which is omitted above); techical or news might be considered fair use, but creative work would more likely NOT be considered fair use. 

Seems like Andrew's photos are his creative work of his creative work (hairstyles/haircuts). 

ASMP has done webinars and I've taken a couple of them related to copyright. It seems like pursuing a take down request is likely the best course of action because you could stop someone from unauthorized use but it's less likely you'd get payment or benefit from taking it to court.


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## vintagesnaps (Sep 16, 2019)

John, it talks about commercial work that contains non-commercial info., and that part could be considered fair use. Such as if a venue is holding an event and selling tickets, but also links to community events, _that_ info. may be considered non-commercial (I think because it's sharing information). The part that promotes their money making event is more likely commercial and _not_ considered fair use.


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## Original katomi (Sep 16, 2019)

Can someone re post that link to the US copyright laws into my thread on photography and the law marking it US as I have marked the UK section. It would be nice to build a knowledge base for different countries


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## vintagesnaps (Sep 16, 2019)

If I can find it...


edit - I found it.


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## smoke665 (Sep 16, 2019)

vintagesnaps said:


> I don't know where that came from but it's NOT from the US Copyright Office website.



The first part was from the the copyright law FAQ (same site you posted) and involves the tests that a court will use to determine fair use. the case I referenced (if you read the decision),  goes over the judges decision regarding each of the four categories and how he decided on each of those categories. The key is that it HAS to pass the four tests, according to the judges interpretation of the circumstances, to be considered fair use. Semantics has nothing to do with it, if the judge determines it passes according to the guidelines, it's fair use.

I'd also advise you to read Legalities 4: What is Work Made For Hire? | Owen, Wickersham & Erickson, P.C. regarding copyright ownership. Just because you snapped the shot doesn't automatically grant you a copyright. The real kicker under the "Work For Hire" clause is that the copyright act a "collective" work could be considered to be many things including magazine or other periodicals, newspapers, even catalogs, and advertisements. Whether the court would consider the OP's styling as "work for hire" would be an interesting defense.

The third paragraph has to do with bringing suit in general.  In order to file suit against someone for a grievance you have to have "clean hands", you can't go into court demanding justice if, you haven't followed the letter of the law either, your case will be summarily dismissed.  If the OP published a minor's image on social media without a release from the parents, then there are state and federal laws that come into play. No one can photograph or film your child in a location where he or she (or the parents) believes himself or herself to be safe from such an event without the express consent of the parents. This also brings up the second matter of "Standing" you have to be the aggrieved party when seeking damages. Whether the OP holds copyright or not,  he doesn't have a release, so he has no claim for damages. The person in the image has "standing" not the OP.

I'm not an attorney, do not claim to be one, and offer no legal advice,  but over the years, I've been both plaintiff and defendant in enough high dollar case to know my way around a courtroom. As I stated before, other then sending take down notices, I would highly advise the OP to consult an attorney with experience in copyright violations to discuss the merits of his case, and the cost of proceeding to court, before making any rash decisions. The costs could outweigh the benefit and the last thing you want to do, is end up paying the defendants legal expense if the ruling goes horribly against you.


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## Derrel (Sep 17, 2019)

i'm not a lawyer and I have not played one on TV… My advice would be to send a DMCA take down notice, and let them know that these photos are yours and that they have used them without payment, and are in violation of basic copyright law, and are unethically using stolen work.I suspect that you will be met with an immediate takedown of the work. If not, then it is up to you to pursue this additionally in any one of several ways that you wish to.


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## compur (Sep 17, 2019)

I'm not a lawyer (though I _have_ played one on TV  ).

My 2 cents:
Don't ask for legal advice on internet forums.
Don't post photos online (including this forum) that you feel may be involved in copyright violations.
Get a real lawyer. Many will provide a free consultation.


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## pocketshaver (Oct 13, 2019)

still have to prove you took the photos in question. Can you do that?


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## Sharpshooterr (Mar 10, 2020)

andrewdoeshair said:


> I hope this is the appropriate place to post. Some photos I took a few years ago have been making the rounds on hair ads to sell product (the funny thing is that there was no product used in the styling). I haven consented to any of this. Most of the companies are small and it’s just annoying, but a large company just started using the photos and I really want to do something about it. Does anyone know how I can start? Thank you
> 
> View attachment 179507



Andrew, or TWIMC, I see this is 6 months old so I’m not gonna tell ya what to do but I’ll tell ya a little story instead. 
About 10 years ago a friend of mine who is a pretty big time commercial photographer with a 100 magazine covers to his name, had been licensing shots to this particular pretty big advertising company that loved his work  to use in ads. 
One day he was watching the Olympic Games on TV and an ad popped up on hisTV and it had one of his images on it. 
He had done about $50,000 with this company and they were using him a lot. But here was this image he had licensed to them with a restricted use and this was clearly a violation of that use. 
With his chest all puffed out he called them the next day and told them they owed him $5000 for the use of his image!
A week later a check for $5000 arrived in the mail and he felt vindicated!
They also NEVER called him again and he knew he had ROYALY screwed up!!! A little bit of friendly negotiation could have made him tens of thousands of dollars more in the future!!! Just saying!
SS


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## JBPhotog (Mar 11, 2020)

It is funny how this "connected" world has hatched a massive amount of litigation regarding copyright infringements. Even by people who's livelihood is dependant on users respecting the copyrighted works, many singing artists have infringed photographers copyrights.

One aspect of Canadian Copyright Law that is missing or at least not easily disclosed in the US law are Moral Rights. Moral Rights are retained by the creator of the work and are defined by any alteration, including cropping of the original work. If the original hair cut photos where cropped as to not disclose the subjects identity then that would be a violation of Moral Rights as defined in the Copyright Act.

Work for hire is a sticky one, as an employee although you press the shutter you do not own the copyright, your employer does. Make sure any agreement you sign with a client doe not contain references to "work for hire".

Model releases are typically predicated on an identifiable aspect of the subject, I don't think a case would be successful in prosecution on hair alone but it is prudent in any commercial or trade arrangement to have one signed by the talent, electronic releases are available for various mobile devices.

And since disclaimers seem to be part of this this thread, I am not a lawyer, I don't play one on TV but I like watching Better Call Saul.


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## Sharpshooterr (Mar 11, 2020)

I’m no lawyer either but if I were I’d probably never make a dime!!!
I’d advise everybody to just contact the other party and work out what you can, leaving lawyers completely out of it!!!
I’m sure most of us are aware of Prince vs Cariou!
Nothing is sacred, no matter how big the big C is on your copyright!!!
Copyrights seem to be like locks, they just keep out the honest people!
Not for copyright but I tried to chase $15K one time. I went to a highly recommended lawyer and he said it was a slam-dunk case!!!
$15K later it was obvious it was gonna cost $15K more to get it so I dropped the case! Big lesson learned!!!
I would ask nicely for a few hundred dollars, if not, at least put your name on the ad as the photographer and get some free advertising, and hope they don’t ask you to pay them!!! LoL
SS


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## Derrel (Mar 12, 2020)

Better Call Saul is truly an excellent TV show.


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## JBPhotog (Mar 12, 2020)

Derrel said:


> Better Call Saul is truly an excellent TV show.



Yes, although the series started slow, it has progressed into a "Breaking Bad" genre. I cut the cable a few years ago so I  must wait a year for season five to air on Netflix.


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## earthmanbuck (Apr 14, 2020)

Just seeing this thread now and thought I'd chime in, for whatever that's worth at this late date.

I _am_ a lawyer, although I should throw in a couple caveats too—I haven't been one for very long, I've never actually practiced copyright law (but did take classes and had a couple research jobs on the subject), and I'm in Canada, where copyright laws are different in some key ways. And of course, everything I will say here should not be taken as legal advice.

*Regarding fair use*: I don't see how they could reasonably spin this to fit into the definition of fair use. The idea behind fair use is to allow a loosening up of copyright restrictions in circumstances that benefit the public or "the greater good". That's why you're allowed to use certain things without permission for educational purposes, or for critical or parodic purposes (which in the US is tied to First Amendment rights). There are also limits to fair use, though—for example, schools are not allowed to photocopy and distribute entire books to students (even though that's a pretty clear example of 'educational purposes').

Here, we have a company using someone's image without permission _to sell a product_. They are taking someone else's property without permission or remuneration and using it to make money for themselves. Does that benefit the greater good? I think it's a pretty tough sell to say it benefits anyone other than the company. While it may be true that there are commercial uses that could fall into fair use, I think there would have to be a pretty rare and specific set of circumstances to allow that. 

However, I would also want to know if the pictures shared were OP's entire images, or a crop? If it's a crop, they've transformed the work in some way, and would have a better argument for fair use. (I still don't think they'd get away with it in the end).

*Regarding lack of release form for a minor*: Probably not an issue, because as I think someone already mentioned, release forms are based on the idea of "likeness" or identifiability. If these shots are the originals (i.e., cropped to just above eyebrows), it's not reasonably possible to identify anyone.

*Regarding work for hire*: I don't see how that would apply here, unless I missed something. If OP took the pictures to advertise his own business, he was not hired by anyone to take them. From what I recall, work for hire has to be a pretty explicit arrangement—so even if OP took these pictures to help bring business to a hair salon, unless the arrangement was "we pay you to take pictures for us to own and do with as we please", OP still has copyright in the pictures.

*Regarding Instagram*: Instagram makes things fuzzier, and I confess I find the terms a bit confusing. Posting on Instagram does not transfer your copyright to them. However, it gives them a sub-license to distribute, modify, display, etc.  your photos, royalty-free. This agreement is between you and Instagram, and as far as I understand does not cover a third party using your Instagram pictures—they still need your permission, unless they are claiming fair use.

You can report copyright infringement right through Instagram, I believe. I'm not sure what their response time is like or how effective they are at enforcing it, but you have that option.


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## JBPhotog (Apr 14, 2020)

earthmanbuck said:


> However, I would also want to know if the pictures shared were OP's entire images, or a crop? If it's a crop, they've transformed the work in some way, and would have a better argument for fair use. (I still don't think they'd get away with it in the end).



The caveat to this is in Canada, creators also have "Moral Rights" for work they create. Here is an excerpt from the Gov't of Canada page on Moral Rights with reference to the second right(moral) for creators:

_"The second guarantees that the work shall remain in basically the same state unless the creator changes it. This guarantees that others may not change the work without permission, but it also guarantees that the artist may change the work at any point."_

Moral Rights are not part of the Copyright law to creators in the US.

FWIW, all estimates and invoices should contain the specific rights granted and license to use and those withheld by the creator. iIn Canada my documents include Moral Rights descriptions.


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## earthmanbuck (Apr 14, 2020)

JBPhotog said:


> The caveat to this is in Canada, creators also have "Moral Rights" for work they create. Here is an excerpt from the Gov't of Canada page on Moral Rights with reference to the second right(moral) for creators:
> 
> _"The second guarantees that the work shall remain in basically the same state unless the creator changes it. This guarantees that others may not change the work without permission, but it also guarantees that the artist may change the work at any point."_


Yes, but there are limits to everything. For example, the moral right you have over your work probably doesn't trump my right to parody your work under the fair dealing exception (Canada's equivalent of fair use).

I don't know the extent to which moral rights would play into the situation here, if this took place in Canada. I don't think it would factor in very much, because the work is not being attached to the creator in any way. The main issue isn't that the work is being presented in a way that would defame the creator or call into question the integrity and beliefs of the creator, but rather that it is being reproduced without the copyright holder's permission.


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## JBPhotog (Apr 14, 2020)

I was addressing your suggestion about a cropped image, this specifically is a violation of the Moral Rights law in Canada. Cropping, editing by adding a “filter” or any other post processing modality is violating the Moral Rights granted to the creator. Notwithstanding a copyright violation by using the said works for commercial purposes.

In fact Moral Rights may have more weight than copyright for your parody if you alter the creators image in anyway whatsoever ever when not used for commercial purposes.


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## earthmanbuck (Apr 15, 2020)

JBPhotog said:


> I was addressing your suggestion about a cropped image, this specifically is a violation of the Moral Rights law in Canada. Cropping, editing by adding a “filter” or any other post processing modality is violating the Moral Rights granted to the creator. Notwithstanding a copyright violation by using the said works for commercial purposes.
> 
> In fact Moral Rights may have more weight than copyright for your parody if you alter the creators image in anyway whatsoever ever when not used for commercial purposes.


You shouldn't take the fact that we have a moral rights clause in our _Copyright Act_ to mean that creators always have full control over how that work is used—because our courts certainly don't read it that way. According to the Supreme Court, "The evaluation of a potential breach of moral rights calls for the exercise of a good deal of judgment.  A distortion, mutilation or modification of a work *is only actionable if it is to 'the prejudice of the honour or reputation of the author'*." The test is both subjective and objective—(1) does the creator actually feel the alteration prejudices their reputation, and (2) is it objectively reasonable to think that it does?

Cropping of a photograph _could _be a moral issue, depending on how far it goes. If you're a well-known portrait photographer and grant me a license to a full body portrait, and I crop it down to a crotch shot, that could reasonably impact your reputation. If I crop out the person entirely and just leave a piece of the background, that could impact your reputation as a portrait photographer. If I crop it from a full-body portrait to just shoulders and head, you might be able to make an argument, depending on how integral you see the presence of the full body in the shot to the integrity of your image and your reputation, but I think even that would probably be a tough sell in most cases. If I do a simple cropping of some blank space from 3:2 to a square, or something like that...I almost can't imagine a scenario where a court would uphold that as a moral rights violation. Unless you considered yourself to be "the guy who never shoots square photos" or something.

If you have a clause in your licensing agreement saying the licensee cannot alter your photograph in any way, that's one thing—but then it's a contractual issue, not a moral rights issue.


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