@ecileh, Good on you for pursuing it, that is bad bad business and I bet it did leave a bad taste. That’s really too bad they thought all that was ok.
I also agree that it would be in the best interest of all parties with a professional to notify and ask the client first; seems like it would save a lot of potential aggravation in the long run. Putting myself in those shoes, I would be much much agreeable if asked first, and would probably think it was pretty cool vs seeing my/horses photo somewhere out in the world well after the fact.
@ecileh WOW good on you for pursuing that! That turns me off to Noble too, that the owner would seriously say that to you. When will business owner’s learn, everything they say matters with public perception??
I agree with most posters - if the photo is just of your horse, no people in it, a head’s up from the photog would have been a nice curtesy, but at the end of the day, not required, so I’d probably just shrug it off.
I’m glad I followed this thread, though. I had no idea they could just sell photos of people too as long as a release is signed. So hypothetically, if you decline to sign the release, do the photographers usually decline to photograph you? Or do they file your photos in a “don’t sell these commercially” group?
@ecileh I guess that is the chance we all take when using internet photo sights to put pictures on. I don’t know how people prove they own the picture to begin with, but glad you got it resolved.
I don’t use any internet sight for family / personal / people pictures. That would bother me.
Agreed, actually. And this incident is why I deleted my flickr account entirely. It’s frustrating, though, because like most hobbies, photographers like to share and talk about their work and look at the work of others.
There are lots of ways to prove you own a photo. In ye olden days, it was because you had the negative. Now a days, it’s more about the metadata your camera embeds into the digital file. In my particular case, I could have shown him all of the outtakes from that same photo shoot, as well as about a million other photos of the same horse in the same location, as it was her paddock. I also had proof that I posted the photo in 2014 on both Facebook and Flickr and that mine were the earliest copies of it to be found online.
I’m not a photographer nor a contract lawyer, but I’d be pretty miffed if I paid for a photographer to do a private session and then they sold those photos without my permission. We aren’t talking about someone taking photos in a public place, or happened to take a picture of you at a show that you then bought a print of. This would be like doing a private session of your family and then uploading your family photos to a stock photo site to be purchased and used by anyone in anyway. There is a big difference between the photographer using it for advertising her own business, and the photographer selling it to someone else (which is what happened here).
Now I know to be really careful about what the contract says if I ever decide to do a private photo shoot with my horses!
As the owner of a horse who was special to me and who passed away, yet his photo appears prominently in a USEF publication that I see often -
I know it’s a courtesy, but I really, really wish the photographer had just asked me before allowing the picture to be used. He was photographed fairly regularly by some “big name” equine photographers and after he died I asked if they please not license his image. All but one were happy to respect that. This particular one ignored the request (not like she doesn’t have photos of a million other gorgeous horses to use) and it did leave a very bad taste in my mouth personally.
I understand the photographer owns the rights, yada yada yada…
… but place me firmly in the category of people who think a “heads up” from the photographer would have been a nice courtesy.
While there may not be any legal issues with a photographer allowing their photo of your horse to be used by a third party ad campaign, it can create some unsettling feelings. I don’t think any client invites a photographer into their home or barn for a private photoshoot expecting that their images will be widely circulated in the public eye, even if they fully understand the photographer has rights to them.
So while not legally necessary, I think communication about the ad from the photographer would have been a considerate gesture.
Of course you should always read a contract. It’s the agreement between a service provider and a consumer. For the photographer, it doesn’t make any difference where the images were taken; the photographer owns the rights to the image unless they sign those rights away in the contract. If the photographer is a professional with quality equipment (ie, not a fancy smartphone) and years of experience, they should be paid either for copies of images or giving up the rights to the image.
I agree that a photographer should be professional and let the person who paid for images to be captured know that the images will be used elsewhere. But, they don’t have too. I think easier to let the consumer know if the images were the result of a specific photo shoot requested by the consumer at a location requested by the consumer.
May be a bit more difficult if the photographer was at a horse show shooting many horses over the course of the show without knowing if any of those images will be purchased by anyone. If there might be an opportunity to make some $$ selling an image to a third party, I’m not sure I’d expect the photographer to take the time to try to track down the competitor to let them know, particularly if the competitor didn’t purchase any of the images.
As noted, typically if photographs include identifiable images of people, those individuals sign a release to cover what happens to their images once captured by the photographer. I think this general discussion was about images of horses, not of people with or without horses. I’ll be some of this is often covered in the show premium and/or entry form if there is an official show photographer. If no official show photographer, then a professional photographer should contact the competitor either before capturing the images or after if the photos may be sold to someone other than the competitor.
If you want freebie photos, there are usually plenty of friends with smartphones or photographer wanna-be’s.
As many have said, it really goes back to what is in the contract that you signed with the photographer. If usage for both parties wasn’t specified in the contract, as an equine photographer myself, I would reach out to the owner of the horse for a model release and inform them that I intend to sell the rights for commercial use. The photographer does own the rights to the images and therefore can use them as they see fit, so it is a bit of a grey area in that they don’t have to get your permission before doing so, but it would be appreciated and polite.
I’m in the “it would have been nice to have been given a heads up first” category.
I went to a ‘fancy’ dressage show a few years ago and bought a photo. I acknowledge that it’s MY issue that I felt out of place and self conscious about my weight at the time. My pony is a star, though, we did well, so I bought a picture from the pro photographer because I liked how my pony looked in it.
That same photo was used as the banner on the show’s website and entries the next year, as well as the print and facebook advertising for the show and on the main page of the photographer’s website. Totally legal and above board, I get it - public space, signing a media waiver goes along with your entry, etc.
I know the intentions of using myself and my pony for the advertising were good - it was a nice picture, and I imagine it makes the show look more inclusive to ‘normal’ riders. But, I felt really icky about the whole thing. I’m a pretty private person so I didn’t like my picture ‘out there’ and like I mentioned I was feeling very self conscious. To be honest, I haven’t gone back there since.
I think a quick email or call from them first regarding their planned uses for the photo would have gone a long way.
Just to clarify for those who are advising to read the contract… The default in copyright law is that unless you have an employer-employee relationship, the creator/author is the copyright owner. It is very very difficult to have most commissioned works (like photos from a photo shoot you request) fall into the “work for hire” exception. Additionally, copyright assignments must be in writing (i.e., in your contract or in a writing made after the fact). Buying a high-res image with “full rights” doesn’t necessarily mean “ownership.” It might mean you can use that image for your own commercial purposes like to advertise your farm or to print your own hard copies or any number of things, but it’s still a license.
A lot of businesses who hire photographers, graphic designers, etc. versus hiring them in-house run into these issues when they want to make merchandise, use artwork on product packaging, trademark a logo, or send a cease and desist letter to someone else who has copied the art. If you want to own the works, make sure you have a clear written assignment. If you want to in some other way restrict the copyright owner’s usual scope of rights (such as restrict them from licensing the image to anyone else), you also need that in writing.
It is also very very common that the artist does not have appropriate language in their contracts as a default even if you are hiring them to make you something you really need to own (like a logo for your business). So, never assume the deal is what you think it is just because it’s personal and you commission a specific job.
@IPEsq I love that you answered - thank you! I was actually talking to my father about this, wanting his input - as he isn’t a horse person, despite funding me growing up - but he is a professional artist.
One of the scenarios we asked “what if” was commissioning artwork. Obviously, it all comes down to the contract and I know that - but based on what I’ve learned this last week, if I hired an artist to paint a portrait of my horse, and they liked it so much that they made prints or giclees to sell it sounds like as the “creator”, they’re well within their rights to do that unless I specifically outline against it in my contract.
Most likely yes. Of course the official legal answer is “it depends” :lol:. But there’s a case we all read in law school on this that involves a commissioned work and is what sets out the “work for hire” doctrine. I think that the majority of the time the situation does not fit into work for hire. For example, your artist does the portrait on their own schedule, with their own materials, works in their own studio and delivers you the work when done. While you are getting ownership of that physical copy and you can sell that copy to someone else in the future if you want (like you might sell a used book), the artist would have all of the other rights under copyright law, which would potentially include making copies (prints or glicees) and derivative works (new mixed media work using one of the prints) and selling those things.
Section 106 of the Copyright Act sets out all of the copyright rights that the owner has. The initial author of a work is always the creator and is the copyright owner. Under the work for hire doctrine (including employee-created works), the creator is considered to be the hiring entity, and so it’s not an ownership transfer at all. If your commissioned work satisfied the requirements for “work for hire” then you’d own it without a separate writing/contract. But as I said before, most commissioned works do not actually fall into this category despite what might seem fair to the one commissioning the work, and so you need a contract to specify ownership and transfer rights away from the creator.
I’m with you in the minority, FWIW. I’m sorry this happened to you. I would not “love” this photographer, and I would seriously look for a different one to take my 2020 Christmas pics and make sure of the terms of our contract.
While you might own your photograph, there is something called Fair Use. This means that in a limited way, your photos can be used without gaining your permission. This means they can be used for teaching and research for example. If an infringement occurs, then the court will decide if it Fair Use or not.
First, did you hire a photographer? If the answer is YES, then legally speaking he can’t use the photos without your consent. In order for the photographer to use the photos, he would need to sign a model release. You need to have some kind of a written agreement with your photographer, but in most cases even if you don’t have a written agreement he does NOT have the permission.
Q: Who owns the copyright in a photograph once it is taken?
In general, when the shutter is released, the photographer who pressed the button owns the copyright. An exception is when the image falls into the “work-made-for-hire”(also known as “work for hire”) category. A work-made-for-hire relationship is created in two situations: (1) the photographer is an employee hired to take photographs for the employer—an example would be a photojournalist who is an employee of a newspaper but not a wedding or portrait photographer who is hired for one event; or (2) the photographer is hired to provide photographs for collective works or compilations and signs a written agreement that specifically states that the work is to be considered a work made for hire. Therefore, freelance photographers are subjected to work-for-hire status only when they agree to it contractually.
So no photos ever of your horse unless you personally take them yourself?
Even your friend with the smart camera owns the rights to the images she might take of your horse, with or without your permission.
If you want nice photos of a treasured horse (or any animal), pay a professional and understand what you get for what you choose to pay for (besides their time and experience with nice equipment).
Unless otherwise stated in a contract, the photographer owns the copyright to the photo.
With a model release, the photographer owns not just the copyright but also the right to publish the picture and use it for advertising purposes. The model release protects the photographer. But only people can sign model releases, so the photographer technically has the right to use a photo of a horse (without a person) for personal gain. It would be nice to ask, though. In a storytelling photo class I just took, the instructor said to get model releases when possible but that you technically didn’t need if in a public place. The person used to be a staff photographer for a newspaper and won a Pulitzer, so I’m guessing she knows what she’s talking about.
A photo release, on the other hand, allows the person who purchased the images to make copies of them, use them online, etc. This protects the client. Generally there are levels of this: a horse show photographer that sells you a high res digital image will probably have a higher price than the one you paid if you plan to use said photo commercially.
I have yet to figure out how to monetize my photography…
Actually, it is not the case that the photographer automatically owns the rights to the photographs. If you look here https://www.copyright.gov/circs/circ09.pdf you will see that a there is an explanation that states “If a work is made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless both parties involved have signed a written agreement to the contrary.”
So ultimately it gets down to what it says in a contract, however, if there is no contract then the default would be the rights belong to the person who paid to have the work done.
Note: That is different, for example, if the photographer took the picture at an event and the person then bought the photo. There the default is the rights belong to the photographer because it was not a work for hire.
Note2: If a photographer takes my picture while I am in public and posts on the internet in a non-commercial fashion, that’s OK. If however it is used in a commercial fashion (i.e., an advertisement) then that is a violation of my property rights.
It can get complex. A picture of me and one of my horses was taken by a hunt member (pro photographer). I bought the digital image. A friend saw it who does marketing for an equine feeds company (product I use) and wanted to use the picture in an ad. They secured the rights from both me and the photographer. All’s good. Another company then used the image in an online ad without any rights secured. I made them take it down.
I also had proof that I posted the photo in 2014 on both Facebook and Flickr and that mine were the earliest copies of it to be found online.