Can a photographer use my photos on two different websites to promote two different businesses without my consent?

Asked 6 months ago - Atlanta, GA

A former music associate (also a photographer) took two photos of me. Both photos were taken to promote musical projects that were never completed about 4-5 years ago. I recently saw one photo (head-shot) being used to promote his photography business. The second photo ( him and I next to a piano) is being used to promote a solo CD that he has . The picture is supposed to be one of the former groups that he performed with; though our group never got off the ground. I do not want my picture promoting commercial projects not associated with the original purpose. I took the picture to promote musical works of my own creation and/or in collaboration with the friend - not solo projects or a photography business. How can I get my pictures removed if I get no cooperation?

Attorney answers (3)

  1. Maurice N Ross

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    Answered . You have an uphill battle here. First, copyrights in photographs are owned by the persons who take the photographs. Since you did not take the photographs, you do not own the copyrights in them. You cannot, therefore, use copyright law to achieve your objectives here.

    Moreover, you obviously appeared in the photographs voluntarily, and you cannot erase the fact that at one point, you worked with this former music associate on music projects. Your former associate is permitted to provide biographical information concerning his career history in support of his current projects. You do not have the right to stop him from saying that he worked with you, and it sounds to me like the photographs are being used as part of his recitation of the history of groups with whom he performed.

    Your only possible claim would be for violation of your right of publicity. But you voluntarily appeared in these photographs. Further, the First Amendment most likely allows use of these photographs for purposes of illustrating the career of your former music associate. Recent cases have recognized that the First Amendment imposes substantial limitations on right of publicity cases.

    Of equal importance, it is hard to see how this causes you damage. The right of publicity is designed to stop companies from falsely stating that a celebrity has endorsed its products, without compensating the celebrity. This can lead to claims for millions of dollars for celebrities who are paid substantial amounts to endorse products, and whose earning power has been adversely impacted by unauthorized use their images. In this situation, my guess is that you have suffered no adverse economic consequences-----it will be hard to show harm from use of these photographs. Maybe I am wrong---if you are a significant celebrity with a significant following you might have an colorable right of publicity claim---but unless there is big money involved here, you probably won't want to invest in the costs of pursuing litigation--think hundreds of thousands of dollars in legal fees and costs (almost certainly, no lawyer would take a case like this on a contingency---at least if the lawyer knows the ropes).

    Even if you can show some economic harm. you don't have the power to change history. Paul McCartney can (and frequently does) including pictures from his days as a Beatle when he promotes his new music. As a lawyer who frequently works in the music world (and a practicing musician), I am particularly close to this issue. Bands break up and there are often hard feelings. People fight over credit on songs, songwriting, and music production (I recently made major changes to the chords and melodies in a song for someone, who six months later forgot that he had entered into a written agreement with me to treat me as a co-writer). In reality, you can't escape your past or hide it, and others who worked with you in the past are free to cite that work as part of their credentials, including for purposes of promoting their new work. I tell my clients in the music industry and my fellow-musicians to choose their collaborators with care---because once you work with them to create music they will always be part of your musical career history, and they will always he able to use their relationship with you for commercial advantage even if you would prefer that they do not.

  2. Bruce E. Burdick

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    Answered . We need many more facts than you have given us but will answer based on what you have given us. First, you need to recognize that the photographer owns the copyrights on these two photos, not you. In general, photographers can use photographs to promote their business, provided they are not using the name or likeness of a particular person. If you were a famous person, and the photographer was using your image to promote his business, then it would be rather clear that the photographer is using your name or likeness primarily and not merely the photographic content of the picture. However, I am guessing you are not famous and that the photographer is merely using the photograph to show the quality of his photography rather than to use your purse on a to promote his business. That is a different animal, in my opinion, legally. To put it another way, celebrities have much greater publicity right than the average person because it is more likely that use of their name or likeness is intended primarily to ride on the celebrities coattails without paying anything,rather than than merely being to sell a photograph for it photographic merit rather than who is in it.. Without looking at your picture, and without knowing whether you are a celebrity or carry any particular reputation that would be of value to the photographer in promoting a business it is impossible to tell which is more likely the case. You would need to consult an intellectual property law attorney or entertainment law attorney to review the specific photographs to make a determination.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is... more
  3. Daniel Nathan Ballard

    Contributor Level 20

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    Answered . If he does not remove the photographs after you ask him nicely [in a letter or email] then your only alternative is escalate the matter into a legal dispute. You can try to research the relevant "right of publicity" law and then write a formal cease and desist letter and, if again no response, you can research how to articulate your claim, how to draft a complaint and how to file and serve the complaint. Or you can hire an intellectual property litigator in your state who does these things routinely. Good luck.

    Note: Because you did not take the photographs you do not own their copyright so that body of law is of no help to you.

    The above response is general information ONLY and is not legal advice, does not form an attorney-client... more

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