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01-10-2017, 10:45 AM   #1
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Dancers Copyright?

Interesting situation, and looking for knowledgeable input please.

Scenario: benefit concert for a family, primarily all dance related. A good chunk of the show is performance put on by a mix of professional dancers (ballet, step, etc), the rest student dancers from the studio that organized the benefit, and student band/chorus from the host high school where the event took place.

I know the people the benefit is for, and am friendly with many of the students participating. Of my own accord, I went to the event and photographed it. To be clear, I was not asked to attend or photograph the event by anyone.

The photos have since been posted to my photography & FB site as I always do after events.

Today I have received several calls, emails and messages from the organizing studio "requesting" I take down all photos of the professional dancers (mostly the ballet ones) because they (the organizing studio) doesn't "...have their consent to have any pictures taken of them".

Now, I'll take them down so as not to create any friction between the dancers and the studio for future benefit concerts, but in reality, do the dancers have any leg to stand on (see what I did there)?

I signed no contract with the dancers, I was not hired or requested by the studio to photograph, and this is a public location being in a High School auditorium. All of this suggests to me I can photograph freely and offer the pictures up for sale if I choose to do so.

Does anyone have any experience in such matters where a performer claims no one can take their photograph during a performance in what amounts to a public venue?

Thank you.

---------- Post added 01-10-17 at 12:54 PM ----------

To add to this, the only announcement made at the beginning of the benefit was that there be no videoing, or flash photography, Specifically they said flash photography.

01-10-2017, 11:02 AM - 1 Like   #2
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Any laws would be very location-specific and there could be laws at a very local level, but I guess it will boil down to whether the location was truly a 'public place' - even a 'public' school would struggle to meet that definition here - and whether the performers had any reasonable expectation of privacy. It would also depend heavily on whether your photography is commercial or not, in which case signed model and location releases would be required before you could legally sell any. I assume you didn't ask for a release, so you might fall foul of this if you are selling images.
01-10-2017, 11:34 AM - 1 Like   #3
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I don't know about your dancers, but for native dancers at pow wows, it is expected you will ask the dancers if you can photograph them before you take pictures. It's not a law, but it's an expectation. Personally, unless have a model consent form signed, and I ask all my clients to sign one for my guiding business, I wouldn't argue with anyone who asked to have their picture taken down.

However, when I go to Niagara Falls, I have only asked street performers or other people there professionally for their permission. But, that's outdoors in a public space, and I've only been asked once to delete a photo, it was really bad photo so I didn't care, and only one client has refused to sign my model release. She was just graduated lawyer and claimed if she signed it I could use the pictures for anything. The reason we get the consent form signed is so we can use the images on our company website. I used one of her pictures anyway, but she was facing away from the camera pushing a boat up driver, it could have been anybody.

And even though it is expected that you ask in advance, when I gave one of the native dancers a copy of one of the photos I took, he was really happy with it, and thanked me several times, even though I hadn't asked permission. I just try and respect other peoples wishes. But for candid shots... asking ruins the shot.
01-10-2017, 11:35 AM - 1 Like   #4
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One view:
When Photographers Need a Photo Release or Use of Likeness

A different take:
Photographers rights, learn everything

Confusing area of law actually. A lot of variation by locality too.

01-10-2017, 11:45 AM - 1 Like   #5
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As I understand it when I've looked up the laws myself,
  • You have the rights to any photos you take, as long as the people in them don't have an expectation of privacy (like a locker room or something equally shady).
  • The venue owner has the right to ask you to not take photos or to leave the venue, but not to erase the photos on a memory card or confiscate film.
  • The people in the photos you take have the right to not have the photos used for "commercial purposes", but the legal definition of "commercial" here is surprisingly narrow in the U.S. It basically means you need a model release to associate them as part of an advertising campaign (which is why stock agencies will ask for releases), but otherwise you're free to use the photos for any purpose.
01-10-2017, 12:52 PM - 1 Like   #6
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This is a tricky area because this is actually a copyright issue, not a privacy issue.

The display of a copyrighted item in a public place does NOT give people (even photographers) the right to make copies of that item. For example, a copyrighted photograph displayed in a public location is still under copyright. If a photographer went to another photographer's exhibition in a high school auditorium, took pictures, and posted those picture to Facebook, then the original photographer would surely have a right to protest. But this same legal logic holds for paintings, sculpture, and presumably the artistic dance.

There are "fair use" exceptions but they are more a set of gray areas than clear-cut laws. As such, most copyright owners will try to shut down any and all copying. Whether the dancers' company will sue you for posting these photos is another matter but they are clearly unhappy and that unhappiness is flowing to the benefit holders and to you.
01-10-2017, 01:11 PM - 1 Like   #7
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In my opinion the studio is pulling a heavy and is not within its rights.

I would have reinforced that the performance was in a public place, and that no request had been made before the event to avoid taking images for personal reasons. I would state that I would be pleased to withdraw the images of them from my professional site as a gesture of goodwill, but that as they had not made any prior claim of control over photography for non-professional purposes, a selection of images would remain on my personal Facebook and they could address that matter separately and politely if the law so allowed.
01-10-2017, 02:34 PM - 2 Likes   #8
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The key for me is that your post said "no video and no flash photography". Therefore, you were granted the right to shoot photos, not using flash. I cannot see how you can be compelled to remove the photos from your website / facebook page. You may, of course, choose to do so as a measure of goodwill, but I do wonder that, if removing the photos would have the effect of acknowledging that you were in the wrong in the first place. (Which you were not)

01-10-2017, 03:01 PM - 1 Like   #9
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QuoteOriginally posted by MarkJerling Quote
The key for me is that your post said "no video and no flash photography". Therefore, you were granted the right to shoot photos, not using flash. I cannot see how you can be compelled to remove the photos from your website / facebook page. You may, of course, choose to do so as a measure of goodwill, but I do wonder that, if removing the photos would have the effect of acknowledging that you were in the wrong in the first place. (Which you were not)
I believe that copyright law in the US, at least, is a federal law, not state law issue.

I think that since you live in the community, you did the right thing in following the request, even if they had no right to ask for you to do so

the idea being that you don't want to get in a fight with a neighbor

as far as whether they were in the right or not - my only course in copyright law was 30 + years ago - so sorry I don't even have a WAG other than this.

I agree that since it was a performance, not random photos of people in a park, it is not a privacy case but would be a copyright case.

[usually the common request for no flash photos is to prevent injury from the possibility of distracting performers and/or disrupting automatic lighting systems which might be thrown off by use of flash]
01-10-2017, 03:51 PM   #10
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Thank you everyone for your contributions so far! It does seem to be a gray area, doesn't it.
01-10-2017, 04:03 PM   #11
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QuoteOriginally posted by gryhnd Quote
All of this suggests to me I can photograph freely and offer the pictures up for sale if I choose to do so.
I can see you selling the photographs to the individual dancers who appear in them, but I doubt you could sell them to the general public without a release.
01-10-2017, 04:09 PM - 1 Like   #12
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QuoteOriginally posted by cpk Quote
I can see you selling the photographs to the individual dancers who appear in them, but I doubt you could sell them to the general public without a release.
I can take a picture of Brad Pitt and offer it for sale. At least in the USA. I can't take a picture of Brad Pitt and offer it to an advertising campaign. That's what the first link explains that I posted. Here at least the concept is very narrow. The question I am seeing however is about copyright which is much much more strict. If the performance is considered to be covered by copyright or the costumes etc. that's where this gets really fuzzy. The fact that my photo may hang on my office wall doesn't allow you to copy it and sell it - no more than if it hung in a gallery. In both cases the item was on display and no one said no photos but the photo itself was protected by copyright. At least that's what I am understanding this discussion to suggest.
01-10-2017, 04:30 PM   #13
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QuoteOriginally posted by photoptimist Quote
and presumably the artistic dance.
In this case it doesn't seem to have anything to do with the actual dancing, but more the dancers themselves wanting control over their likeness.

FWIW, nothing came to me direct from the dancers, just the organizing studio who is probably worried that THEY would get in trouble in some way.
01-10-2017, 04:35 PM   #14
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QuoteOriginally posted by UncleVanya Quote
I can take a picture of Brad Pitt and offer it for sale. At least in the USA. I can't take a picture of Brad Pitt and offer it to an advertising campaign. That's what the first link explains that I posted. Here at least the concept is very narrow. The question I am seeing however is about copyright which is much much more strict. If the performance is considered to be covered by copyright or the costumes etc. that's where this gets really fuzzy. The fact that my photo may hang on my office wall doesn't allow you to copy it and sell it - no more than if it hung in a gallery. In both cases the item was on display and no one said no photos but the photo itself was protected by copyright. At least that's what I am understanding this discussion to suggest.
can you take a picture of Brad Pitt in public on the street and do what you discuss - sell it I mean, not keep it for yourself.

how about Brad Pitt performing in a play?

again, my memory of copyright law is old and most likely out of date but have you ever attended a MLB ball game?

I believe that photos and video recordings are restricted for personal use only, no commercial use allowed without written permission. MLB claims copyright in the "performance" of the ball players, I believe, but am not sure that a dancer or actor might be able to claim copyright in their performance

again, I am not sure, sorry
01-10-2017, 04:46 PM   #15
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QuoteOriginally posted by UncleVanya Quote
I can take a picture of Brad Pitt and offer it for sale. At least in the USA. I can't take a picture of Brad Pitt and offer it to an advertising campaign.
Editorial use of a Brad Pitt photo taken in public might be acceptable depending on the circumstances but definitely not commercial use without a release. The dancers were photographed performing in a private show but in a public building. Photography on the street is permissible because there is no expectation of privacy; that logic may not apply in the OP's circumstances.
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