Digital Photos and Copyright Question

Triathlon Forum
1

I got into this discussion with The Wife and we failed to come to a consensus (no need to point out statistics here):

Several races hire a company to take pictures of you during a race. The RD give said company your email address. The photo company, in turn, sends you proofs or copies of these pictures. They email them directly or send you a link. Most of the time, it is incredibly easy to copy this picture to your hard drive.

I know these people do good and are trying to make a buck. Yet, I would never pay the price they ask for, I find the fee steep. Is there any problem with keeping this picture? What about posting it to your facebook or blog?

2

You naughty boy.

(Excuse me while I put on my flame retardant suit.)

3

this is the same issue when i (hypothetical) take a picture of my friends CRCA race, and i place it on facebook with my watermark on it, and a RD crops the picture and uses it on his site.

in my personal experience, i’ve been comfortable forwarding the same email link that i receive from the photo company to my family and friends, and maybe posting the link on facebook. i think it’s wrong to just take the photo and put it on your facebook (not saying i have or haven’t done this in the past). in the case of using a private person’s picture, you should at least ask, but i think it’s alright to post a link to their website.

4

It’s copyright infringement. Lots of people do it. It is, however, illegal.

You could ask the photographer permission to use it.

5

100% illegal to use the photo without permission. Of course they are taking a risk of personal use by sending you the photo via email, but it still doesn’t give you the right to use the photo. If you look into it, even if you buy the photo you probably don’t have the right to use it for most things, it really depends on the photographer. (Think wedding photographs where usually even if you buy it you can’t reproduce it without written consent of the photographer.) I know that there are lots of amateur photographers that go to events and take lots of photographs(I took around 500 at the Las Vegas Iron Girl), you might do some searching and see if you can find a photo of yourself from a photographer that releases things under the creative commons license.

6

The issue isn’t clear cut. The copy sent to the athlete is absolutely the athlete’s. Any picture posted can be legally saved by anyone. In fact, the athlete could argue that by the event photographer posting pictures on a site, the athlete’s right to publicity is infringed. If the athlete wants to send digital pictures to individuals, groups, or post to a website, fair use would go a long way for certain uses. There’s a newsworthy aspect to consider too, which has complicated facets for both the photographer and athlete. If the small digital photos are emailed by the photographer, and were unsolicited, those digital files may pass into the public domain at that moment. The exact manner which files might be posted to facebook, or a blog would matter too. If pictures were posted, with a link to purchase copies, the photographer couldn’t claim the athlete had done anything other than increase the photographer’s potential sales. The puzzle is far too complex, and the values far too small to care about sorting out.

7

Here is an excerpt from the email the digital company sent…

Go GREEN with an ALL MY IMAGES Digital Download and you will save on shipping not to mention you can crop, print, and email any image to your friends!

They are telling me to download the images. It’s tough for me not to listen. Does this qualify as ‘permission’?

8

It is interesting to see how you are looking to justify your actions. Either buy them and then you can use them or let a buddy take pics of you next time you race if you don’t want to pay their fee. But to say, it is too expensive, thus I am considering just taking it, sounds like theft and pretty much is theft.

Related to this topic, when you buy pics from a race photographer they are typically still not yours. You are just buying the right to put it on your blog etc and share it with your friends. You can’t resell them and they can’t be used commercially otherwise. If we did an interview with you, we could not use those images even though you “bought” them. They still belong to the race photographer.

H

9

I’m not getting involved in the “rights” debate, that gets beaten to death day in and day out.

I will provide some “insight” to the cost of photos being to high. First I’ll say I don’t know what the guy/gal is charging nor did I look to see the quality of the photos or what equipment they were using. My statement will be based of what I consider a real sports photographer, that has talent and the gear necessary to produce quality images. NOT a hack with a Sony DLSR with attached kit lens.

Equipment is expensive - when I was shooting cycling events, at one point I was up to $20,000 in photo gear - between bodies and lenses and all the accessories - isn’t a cheap thing to get into. Time! Lets use a road race for example. I would be there and hour before the start of the 1st race checking out the course and finding spots I wanted to shoot from. Remember, yours is not the only race of the day. Cat 5,4,3 1-2, womens, juniors, etc. I’ve often left shooting a race where I was way more tired and sore than if I had actually raced. Races finish up mid afternoon usually…then home and several hours processing and such - It get time consuming as well. The end user usually see their one or two photos from the race and thinks the price is crazy to pay for that single image…just takes a lot more than stepping out of a car - taking a single picture of you and leaving for the day.

Granted, some people don’t want to pay for photos or the price is too high (which it could be) and I respect that. I’m not a big fan of paying for my own race photos, but I do from time to time. Just asking to be aware that it’s harder work and expensive most of the time to get those photos to you.

Michael
www.MLKimages.com

10

It’s a lot more clear cut than you think. The photographer is free to grant you whatever rights they want, but if they haven’t granted you rights you probably don’t have them. I guess you could argue that the athlete owns the copy sent to them, but probably only for viewing in their email program. They don’t get the right to copy, reuse, print, or publish, they probably don’t even have the right to use it as their desktop wallpaper. In addition these files were not unsolicited.

Any picture posted can be legally saved by anyone.
This is just wrong. Just because it can be easily saved does not mean it’s legal to save it.

Just because something is newsworthy doesn’t allow you to use it without compensating the photographer. If that were the case news photographers would be out of business. Posting something on the internet does not make it public domain, although posting something on a 3rd party site (like twitter, facebook, flickr, etc) may mean you’ve given the 3rd party most of the rights to the photo. Emailing someone a photo does not make it public domain. If the photos were taken in a public place the athlete almost certainly does not have any rights to the photograph, or control of it’s use. Fair Use probably applies to your browser or email program copying it to the cache, but I doubt it would apply to you resending the photograph to anyone.

Depending on how you use it, the value to the photographer is probably not too small to care about. I understand that it’s more like grazing in the vegetable isle at the super market than stealing a car, but that doesn’t make it legal.

11

Here is an excerpt from the email the digital company sent…
Quote:
Go GREEN with an ALL MY IMAGES Digital Download and you will save on shipping not to mention you can crop, print, and email any image to your friends!
They are telling me to download the images. It’s tough for me not to listen. Does this qualify as ‘permission’?

If you have purchased the ALL MY IMAGES Digital Download Package, than yes you can crop, print, and email any image in that package to your friends.

12

Not a legal expert on this, I do have enough experience through promotional and marketing work and as a photographer for clients in the past to weigh in a little. First off for any photo I believe to be taken and used in any manner by a race photographer or race director, sponsor etc, their requires to be a mutually agreed upon and signed contract on how, when and why the photo may be used. Stating who has entitlement, copywrited or not etc. reuse redistribution etc etc. It usually boils down to the reselling of said image by whom? If a newspaper shoots you in public and uses it for publication in the paper that is one thing by which you will likely be informed of said use in advance that is one thing. If the same paper sells the image without your approval and your right to royalties I believe that is another. If you receive a photo via any media and asked to buy it back without prior written consent, there is likely no requirement for you to do anything but what you wish with the photo.

13

Agreeing with much of what has been said.

The photo is almost certainly not yours even if you purchase it. If you made it available for resell or use in a publication you would almost certainly need the photographers okay unless this was covered in some agreement you signed upon purchase. Even though it is you in the photo, the copyright is held by the person who creates the photo and therefore isn’t yours just because you purchased a copy of it.

As for use on the internet, well, that may be a different matter. Linking to the photographers page is most likely legal (lawyers never say 100% and there has been some negative case law on “deep linking”), and I’m under the impression (I have limited copyright law practice) that posting an unedited photo (and leaving the watermark intact) for public viewing on Facebook or a forum is probably okay. You haven’t edited the photo, you aren’t offering it for sale, and you aren’t claiming to be the owner of the copyright.

As a law professor once said, nothing is black and white because lawyers only get paid in the gray.

14

Another thing to remember is how much these photographers have to pay the race directors, speaking to a long time friend who used to be in the business he used to take all the Vineman photo’s and did try to get into more Ironman branded races, when he first started out at Vineman he was paying a few thousand dollars, when he tried to get into other Ironman branded races it was more like fifteen to twenty thousand dollars, now you have to sell a lot of photo’s for that price, hence he was out of that market some years back.

15

I do event photography. I understand the economics involved. Rather than “steep”, I consider their pricing rather paltry. I do not understand how they can maintain a profitable business on the prices they charge. If I had to do it for my main income, I could not charge the prices they charge.

On the other hand, I do NOT like the photographs that usually result from that business model. You know the kind I’m talking about…the ones where the athlete is just a speck dead center in the frame, looking lifeless or disinterested in the racing. Most of the time these are done by people who have no real insight to the event (triathlon/duathlon in our case). But the reality is that they take those pictures because they are easy to do. Their method is to use the “sure thing” settings on a decent camera and make sure they get images…mediocre at best…but images.

I don’t work like that. I cannot get every athlete in a race by myself because I the methods and settings I use mean that often frames do not turn out (try panning shots of cyclists and see what the keeper-to-crapper ratio turns out to be!).

So for me your issue is two-fold. If you keep this image, yes, you are stealing intellectual property which does not belong to you. That in itself is wrong. And second, the effect of you stealing is that this company or people do not make enough money to support their business, and cannot develop the capital to invest in actually doing a better job. By stealing or otherwise devaluing their work, you are ensuring that all race photos you ever see are going to stay mediocre at best.

Among other things a photographer or company must do from fees gained from a shoot:

Offset equipment depreciation (camera, lens, computer, drive storage space, software, etc.)
Business license
Business insurance
Printing or Internet Hosting fees
Pay salary(s)

Consider just the amount of time involved. For a 7 hour 1/2 IM event, that day will usually be a full 10 hours on site, 30-60 minutes of driving time, 8 hours of processing time, 4 hours of image management/internet hosting, 4 hours of sales work/accounting/customer service. That is my own experience, based on about 3000 event images, of which I offered ~1500 for sale. Of that I sold 50 images in various forms. So consider that in order to make a reasonable salary of $25/hour, I could not sell those images in ANY form for less than $13.50 (plus my printer’s wholesale fee if it is a printed image). In reality, I’m going to price that image in an 8x10 at $30 -$35 in order to maintain a sustainable business model. For this roughly 27 hours of work, and although I got rave reviews about the images from athletes I knew, I grossed $850 (roughly $17/image sold) because most of the images I sold were internet-resolution small electronic files. The end result is that I lost money on the day. Its a good thing I don’t count on that for my income. I couldn’t have paid my own salary, even at $17/image. The big companies surely get some relief from economy of scale, but it probably isn’t much. And the actual product suffers from some of the things they have to do to offset.

Just some thoughts for your consideration. I know what I would do.

16

“The issue isn’t clear cut. The copy sent to the athlete is absolutely the athlete’s. Any picture posted can be legally saved by anyone. In fact, the athlete could argue that by the event photographer posting pictures on a site, the athlete’s right to publicity is infringed. If the athlete wants to send digital pictures to individuals, groups, or post to a website, fair use would go a long way for certain uses. There’s a newsworthy aspect to consider too, which has complicated facets for both the photographer and athlete. If the small digital photos are emailed by the photographer, and were unsolicited, those digital files may pass into the public domain at that moment. The exact manner which files might be posted to facebook, or a blog would matter too. If pictures were posted, with a link to purchase copies, the photographer couldn’t claim the athlete had done anything other than increase the photographer’s potential sales. The puzzle is far too complex, and the values far too small to care about sorting out.”

You have no idea what you are talking about. Copyright law is quite clear on this subject. Assuming the photographer or company has done due diligence with their copyright documentation, the issue is clear.

17

No, they are telling you that they do not sell prints. And they are not talking about the low-res image they sent you in the email or posted on the web. They sell you the digital file so that you then can print or use for PERSONAL USE any image you purchase. You are purchasing PERSONAL USAGE rights for that image. In most cases (not clear here, but likely), the photographer/company retains copyright over the image, and may sell or use the image elsewhere for profit. Of course anyone who purchases usage rights to an image with YOU in it and wants to use it for commercial/public purposes MUST have a model release from you. (Note that the model release is not the responsibility of the photographer to attain, but usually they will get it and provide it for images which they sell for commercial use).

Frankly, I’m surprised they offered that you could email the image to friends, as that implies the friends could then have that image. If your friend wants to do anything more than look at that image on the email from you(i.e. perhaps a parent having an image printed at Wal-Mart)…then I, the photographer, would have some expectation that they would ALSO purchase usage rights from me. There is no reasonable way I can collect on that, except through the good will, integrity, and even understanding of copyright law by all parties. Sometimes I get those sales. Sometimes I do not. But I have a day job. I don’t “need” the income I earn from photography at this point.

Frankly, that’s why I enjoy weddings and portraits more from a business standpoint. Money is paid up front, and a clear cut package of products is provided for that fee. Event photography at races is mostly a crap-shoot for small timers like me. From a photographic standpoint, though, I love being out there at the races.

18

Not so fast. There does seem to be a lack of clarity in the diligence and consent for use of publication. You can’t just go shoot photos of people and use them anyway you choose. You can sned a photo to anyone you choose but once you do so their needs a disclaimer to strictly limti the use which is mutually agreed upon

19

Does it say “proof” or “sample” across the image?

I’d say its fine to use on facebook. If you were selling it, or printing 100’s and giving them to your grandma, that might be different.

Is it illegal to make a DVD of a TV show you Tivo?

20

Your copyright is actually so strong that you don’t even need documentation or to print on the photo a copyright notice. It is assumed from the date of creation.