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My nephew is an artist (computer based), as a favour for a friend I asked him to do her daughters (22yrs) pic for me, but then she didn't want to pay for it.
He recently used the image he had created on an advertising poster for a local pub. She saw it and went to a solicitor, saying that she hadn't given permission for him to use her image. she hasn't told the solicitor that I asked him to do the original picture.
Where does he stand legally?
He recently used the image he had created on an advertising poster for a local pub. She saw it and went to a solicitor, saying that she hadn't given permission for him to use her image. she hasn't told the solicitor that I asked him to do the original picture.
Where does he stand legally?
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Sounds like a law homework question.
This link might help- http://www.wipo.int/sme/en/documents/ip_photog raphy.htm
This link might help- http://www.wipo.int/sme/en/documents/ip_photog raphy.htm
Maybe you are looking at section 1 which deals with copywright materials. Have a look instead at section 3 which deals with photos in general. The article may be too general as different countries have different laws but have a look and see if it prompts further ideas.
But hopefully Barmaid, Buenchico or an IP lawyer will be able to help.
But hopefully Barmaid, Buenchico or an IP lawyer will be able to help.
I would have thought that the sections titled
3. MAKING PHOTOS OF PEOPLE
* 3.1 What should you bear in mind when photographing people?
* 3.2 Are people protected by intellectual property rights?
* 3.3 When is a permission particularly recommended?
* 3.4 Tips for Photographers
Would have been relevent in factors links
3. MAKING PHOTOS OF PEOPLE
* 3.1 What should you bear in mind when photographing people?
* 3.2 Are people protected by intellectual property rights?
* 3.3 When is a permission particularly recommended?
* 3.4 Tips for Photographers
Would have been relevent in factors links
My expertise comes from education, but the advice I have had is that people must give specific consent for their photo to be used in any publicly-viewed material, or give consent on behalf of a minor in their care; that people own the right to how their image is used; and that we have to ensure these consents are renewed in writing every 6 months.
In your case I would apologise and say that as she did not want the image you did not realise she was interested in how it would be used.
However it might be worth going to small claims for the work you undertook that she then refused to pay you for.
In your case I would apologise and say that as she did not want the image you did not realise she was interested in how it would be used.
However it might be worth going to small claims for the work you undertook that she then refused to pay you for.
Every photo has a copyright.
Assuming you are in the UK the person commissioned to take the photograph owns the copyright, even if the subject commissioned it and paid for it. This is the case with wedding photos, as an example.
That copyright can be passed to a third party, such as from you to your son.
The difficulty has arisen because he used the image for advertising and possibly profited from it.
If he has profited, he should write a letter apologising, and offer her a share of the profits after his costs have been taken out. After all, he did work that was commissioned but not paid for.
Assuming you are in the UK the person commissioned to take the photograph owns the copyright, even if the subject commissioned it and paid for it. This is the case with wedding photos, as an example.
That copyright can be passed to a third party, such as from you to your son.
The difficulty has arisen because he used the image for advertising and possibly profited from it.
If he has profited, he should write a letter apologising, and offer her a share of the profits after his costs have been taken out. After all, he did work that was commissioned but not paid for.
(2-part post):
First point:
If your friend (or her daughter) made the request for the computer artwork on the understanding that they'd pay your nephew for his work, then they entered into a contract to make such payment. If no such payment was made, they've broken the contract and (unless they now make payment) your nephew has the right to sue them.
That first paragraph might not be directly relevant to your question but the fact that your friend (or her daughter) owe your nephew money could be a useful bargaining point if they seek to get money from him.
Second point:
An analogy might help here. Anyone is free to photograph any other person (except in very restricted circumstances which aren't relevant here) if the photographer is in a public place (or anywhere else where they have permission to take photographs). So, for example, a press photographer can take pictures of celebrities, or demonstrators in Trafalgar Square, irrespective of whether the people are happy with such actions. Further, the press photographer can publish those photographs in his newspaper, on the newspaper's website or in the window of the newspaper office without any payment or restrictions. He can also sell the images to, say, the manufacturer of 'Woofy' dog food, without having to make any payment to the people in the photographs. But if that manufacturer wishes to use one of the celebrity photographs to advertise 'Woofy' he would be unwise to do so without obtaining a 'model consent' from the person in the photograph. The celebrity could charge for providing such consent (or, of course, refuse to grant it). So, if the advert was published without the celebrity's consent, the celebrity could sue to get the money they'd otherwise have been entitled to.
First point:
If your friend (or her daughter) made the request for the computer artwork on the understanding that they'd pay your nephew for his work, then they entered into a contract to make such payment. If no such payment was made, they've broken the contract and (unless they now make payment) your nephew has the right to sue them.
That first paragraph might not be directly relevant to your question but the fact that your friend (or her daughter) owe your nephew money could be a useful bargaining point if they seek to get money from him.
Second point:
An analogy might help here. Anyone is free to photograph any other person (except in very restricted circumstances which aren't relevant here) if the photographer is in a public place (or anywhere else where they have permission to take photographs). So, for example, a press photographer can take pictures of celebrities, or demonstrators in Trafalgar Square, irrespective of whether the people are happy with such actions. Further, the press photographer can publish those photographs in his newspaper, on the newspaper's website or in the window of the newspaper office without any payment or restrictions. He can also sell the images to, say, the manufacturer of 'Woofy' dog food, without having to make any payment to the people in the photographs. But if that manufacturer wishes to use one of the celebrity photographs to advertise 'Woofy' he would be unwise to do so without obtaining a 'model consent' from the person in the photograph. The celebrity could charge for providing such consent (or, of course, refuse to grant it). So, if the advert was published without the celebrity's consent, the celebrity could sue to get the money they'd otherwise have been entitled to.
Back to your question (at last!):
Your nephew owns the copyright to his artwork. He's free to publish it, for example, on his personal website. But he would have been well advised to obtain a 'model consent' before using the image for commercial purposes. Theoretically your friend's daughter could seek compensation, through the courts, for the use of her image without her consent. But any compensation awarded would probably take into account what she could have reasonably expected as payment if her permission had been sought in advance. If her picture had been used for a national poster advertising campaign for J D Wetherspoon, she could have expected to receive a fairly large sum. But she could hardly expect much for agreeing for her face to be used on a poster advertising a local pub.
Back to the beginning:
If your friend's daughter insists upon pursuing payment for the use of her image, your nephew should advise her solicitor that he intends to claim against her, for failing to pay for the artwork that had been commissioned. That will probably be an end to the matter.
Chris
Your nephew owns the copyright to his artwork. He's free to publish it, for example, on his personal website. But he would have been well advised to obtain a 'model consent' before using the image for commercial purposes. Theoretically your friend's daughter could seek compensation, through the courts, for the use of her image without her consent. But any compensation awarded would probably take into account what she could have reasonably expected as payment if her permission had been sought in advance. If her picture had been used for a national poster advertising campaign for J D Wetherspoon, she could have expected to receive a fairly large sum. But she could hardly expect much for agreeing for her face to be used on a poster advertising a local pub.
Back to the beginning:
If your friend's daughter insists upon pursuing payment for the use of her image, your nephew should advise her solicitor that he intends to claim against her, for failing to pay for the artwork that had been commissioned. That will probably be an end to the matter.
Chris
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