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02-21-2010, 09:36 AM   #1
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Having a photo of a celebrity published in a book

I was recently contacted by someone asking for permission to use one of my photos in a book that he's writing. I'd be letting him use the photo for free (I would be credited), but he's using it in a book that he plans to publish and sell.

The photo is of a celebrity that I took at a convention. I had asked the celebrity for permission to take the photo and they are obviously posing for my camera. It's not intrusive or defamatory in any way, but I didn't get a signed consent form.

Are there any legal reasons why I shouldn't let this author use my photo? I'm not exactly "selling" the photo and I'm not the one publishing the photo, but I will be credited for it. The author will probably be selling the book though.

02-21-2010, 09:53 AM   #2
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IMO I would seek advice from a Lawyer. Every jusidiction has different laws and if you just go on our guesses about this, we make lousy lawyers in a real court room.

If the lawyer is gonna cost you a couple hundred, then pass that cost on to the book publisher or absorb it to get your name out there.
02-21-2010, 10:19 AM   #3
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More importantyl... Why the heck are you giving away your photo so that someone else can use it and make money off of it. That's worth money, man. Do yourself and professional photographers everywhere a favor, and charge for usage rights.

BTW, you typically don't need releases for editorial works.
02-21-2010, 05:11 PM   #4
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You definitely don't want to give usage rights away. That's silly. I'm sure the writer/publisher can afford to pay a couple of hundred or so if your photo will figure prominently in the book. An agent, media outlet, or industry lawyer can definitely give you better advice on the value of a photo. If the celebrity is "hot" at the moment and your photo is good, you could be talking about saving them thousands in fees.

Also, I think you need to be careful in passing on anyone's photos for commercial use - you can't just say you gave it away so you're not responsible. You took the photo and you passed it on, whether for a fee or for free.

02-23-2010, 09:59 AM   #5
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Another consideration is where the celebrity in question lives (legal domicile). The ones who live in California are blessed with a concept called "right to publicity" which means they can control their image regardless of any "taken in public" or other factors which usually free you to use images as you please.

Like Peter said though, contact a lawyer!

One interesting aside, if it is published in the book and the celebrity objects, they can't generally come after you, they have to go after the author and publisher.

Mike

p.s. DO NOT GIVE AWAY THE IMAGE! At the very least ask for a royalty based upon the number of copies of the book sold. When you do this they author may just buy a flat-fee license from you to avoid having to send you royalty checks.
02-23-2010, 12:11 PM   #6
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I guess this means I'm going to have to drop my prices to below-zero to be competitive in today's market.... 8(

(that was joking...sort of)
02-23-2010, 10:02 PM   #7
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Below zero? Are you charging in rupees?

Mike - I had never thought about the "Right to Publicity" - how would that figure in regard to making money off of someone's photo?
02-25-2010, 08:43 AM   #8
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QuoteOriginally posted by Frogroast Quote
Below zero? Are you charging in rupees?

Mike - I had never thought about the "Right to Publicity" - how would that figure in regard to making money off of someone's photo?
In some cases the person/celebrity could end up being able to control who you can sell licenses for the image to. They can sometimes outright prevent you from selling or distributing images. They could claim "royalties." It can even be applied to dead celebrities... This issue is very complicated and was recently fought out in the courts over a couple of photographers who had images either they or their father's had shot of Marilyn Monroe. Last word in this case was that the photographer's owned the images and that Marilyn's heirs (or more properly the heirs of Marilyn's managers who owned her) were out of luck. This hinged on the fact that legally, Marilyn was a resident of NY (which does not recognize "right of publicity" for deceased persons) rather than CA (where the right to publicity idea was invented... big surprise).

So the big question is where does the celeb you have a photo of legally live? And does their state or yours have a "right to publicity" statute? It's also important to realize that th"right to publicity" concept exists in common law in most states even though it may not be spelled out. This is where model releases come in. They release you to use an individual's image. What got things stirred up in the Marilyn case was that the photographers had signed releases but her heirs were claiming that she did not, or was not authorized to sign away her "right to publicity."

We discussed this briefly about a year and a half ago in Photographers vs Heirs of Dead Celebs.... You can also google "marilyn monroe right to publicity" and find more background.

Mike


Last edited by MRRiley; 02-25-2010 at 09:01 AM.
03-06-2010, 11:11 PM   #9
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igowerf

Without a model release, it may not matter much whether the person is a celeb or not. That person gave you permission to take the photo. You did not get permission to use, sell, distribute, etc. The fact that money doesn't change hands is not relevant since you'd be trading the photo for promoting yourself and your services as compensation. If I even sell a photo of a Chevy to be used prominently in an ad, and GM doesn't like it and it smells to them like its an implicit endorsement of whatever product or service, they'd be knocking on my door pretty quick. I can tell them to get lost, but they will not do that.

The one thing to keep in mind is, being in the right is great, and being not liable is fine, but will not prevent an objecting party from using the legal system to roll right over you. Their legal reps do not consider justice, but instead feel obligated to use every legal option available to protect their client's interests, period. Not that many lawyers will work pro bono. The book author should be asking a lawyer about this, but is likely too starstruck at being published to think about getting a knock on the door. You may or may not share liability, but that wouldn't stop your getting hauled into court, and a lawyer would be needed to extricate you from it. He won't do that for free. Hate to be gloom and doom, but you need to do more research on both the possibilities and the probabilities. Check out the entire Model Releases section of Dan Heller's site, and keep reading.
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