I am a photographer that specializes in weddings and boudoir . For weddings I always use a contract with a model release , but I just started shooting the boudoir . I had been getting oral agreements from my subjects ( I know , really bad idea ) as to whether I could post their photos on my face book page and website . A girl said it was fine to post them and then when I did ( just to face book ) freaked out and claimed she never gave me permission . The photos were up for less than 5 minutes and had a total for 3 views . ( Me , her , and one of her friends . ) Her name was never on them and she was not tagged in them . What is her recourse and what I should be doing to protect myself from possible litigation ? She hasn't threatened anything yet but I just want to be prepared .
She probably could sue you, but if the photos were taken down in less than 5 minutes as you say, likely her provable damages would be limited. It might also depend on the nature of the photos (how embarassing they were, etc.) and whether there are any provable consequences from her one friend viewing the photos. You have a defense of an oral agreement allowing you to use the photos, but obviously she does not agree. As you noted, getting your agreements in writing is the way to avoid this. I would not worry too much about this, but you do need to be more careful about documenting. If she does sue, I would retain a lawyer to look at the lawsuit so you can have this matter reviewed in more detail. Save all your documentation, including any emails or proof as to the length of time the photos were online and how many people viewed them.
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Obviously you should have written contracts in the future, especially for something as sensitive as boudoir photographs. It should clearly spell out who owns the copyright and what you can and can not do with the pictures. As you know, it is common for the photographer to retain the copyright ownership. You will have fewer disputes and unhappy customers if you are clear about this upfront. The model release is actually less important although it can not hurt.
As for the current situation, she can sue you for a variety of causes of action, including infliction of emotional distress, breach of contract and invasion of privacy. If you can prove you had permission, then you would prevail. But even if she wins, she still has to prove damages. I am a little suspicious how you could know who viewed your facebook page. But I will take you at your word. If the facts are as you say, then there are no damages. This should discourage her from suing.
You may also want to do damage control with your unhappy customer. Let her know you thought you had her permission, that you took the photographs down immediately, no strangers saw them, and you will not post them again. Tell her you have learned for your experience and you are going to have an attorney write up a release that clearly states what is expected of you and your customers. And then do it.
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I agree with my colleagues. You ALWAYS, ALWAYS, ALWAYS want to get your releases in writing. If the person involved is a minor, you need to get a release from the parent or guardian. I agree that you may want to be proactive in terms of damage control. You might offer some consideration, but at least an apology seems to be in order.
Many people do not apologize thinking it will be seen as a sign of weakness. When plaintiffs are later asked about the case, however, many of them say, "He never even said he was sorry. If he had said he was sorry, I would have let it go."
If she files legal action, you will want to get an attorney to represent you. Otherwise, I would try to handle this on your own in a professional way and hope that it provides you with an inexpensive lesson that will benefit you in the future.
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