Photo legal issues
 

I have searched for an answer to my question and did not see it here but if indeed it is I would appreciate someone pointing me in the right direction.

My question is this: How or what kind of agreement does one use to ask for permission to use "photos" taken of your clients artwork that you did yourself--to use those photos of your work in your brochures, on your web site, etc.?

I just had a business meeting with my client. She was ok with having her grandchildren painted by me. When I asked her to sign a release she was a bit uneasy as to why I needed it. Her reaction made me re-think of my own agreement. She pointed out that I had asked for the use of photos for advertising ,etc but I had not stated that names would be withheld and anonymous. But she also seemed a bit fearful of the computer thing as she does not use a computer but hears about "children being exploited on-line"

Now realize that she did not doubt me at all and the agreement went through but wondered if I might need further wording to protect myself.

Do I make sense? The other one was of Sales Tax. I always tax. She claimed that no-one has taxed her on artwork (she has loads of it)

What do you think? Any one wish to share their wording for a Release Form?

Thanks

Patt

Hi Patt--
Well, I'm no legal expert. . . and what I use is a combination and reorganization of things from right here on the forum that I modified so that I felt comfortable with it. . . My portrait contract that is signed when the portrait is originally commissioned is a one page document that spells out the anticipated process etc. but also includes a bullet specifically stating that they are purchasing the original portrait only and that I retain rights of reproduction in any form. . . Upon completion of the portrait, I'll also usually have them sign a second document that further gives the opportunity for the client to specify how they'd like the portrait to be identified in any such use. I'll include the text of both below. . . I'm sure a couple of people here will recognize bits (if not large parts:sunnysmil) of text that's been previously posted (Thanks everyone who's thoughts/words I've been using!!!:sunnysmil)

[Quote]Portrait Contract

THE GOAL of both the portrait Artist and the Client is the creation of a Portrait painting which is pleasing, captures the likeness and personality of the subject(s), and is able to stand on its own merits as a work of art.

* On the average, it will take two to three meetings to produce a quality Portrait. At the first meeting, the basic composition of the Portrait (size, pose, format, type of clothing, tone, background, and lighting) is determined and a series of 60 to 100 reference photographs are taken. This meeting/photo session takes approximately 1-

I should further note that these documents are customized to the client and portrait situation. . . (for instance if the client wants to pose live for the portrait, the section about 'photo reference would be altered to describe the planned schedule for sittings. . . )

When the contract is written up and signed, I talk to the client specifically about the copyright section, and also ask their preference on whether they'd like their work in progress to be shown (so they can follow the progress) on the 'On the Easel' pages on my website. (This might be declined for example by a client whose commission was intended as a gift for fear that the gift recipient might discover the work ahead of time. . . in that case, I'll provide clients the option to have access to the work in progress via an 'un-linked' URL on my website --you have to already know the URL to get to the page.) I typically show the work as 'Untitled' while it is in progress. When the work is completed/delivered, I'll bring along the Portrait release form, with the default title of the work typically the subject first-name only. In the context of the discussion surrounding this release, I'll be the one to bring up internet safety and will offer them the opportunity to choose an alternate moniker for public depictions of the portrait. (Sometimes, I'll have an idea other than the child's name and will suggest this as a possibility . . . ) In any case, by that time. . . the client's pretty much used to being able to show off their painting to friends and family on-line and appreciates the safety considerations.

I used to do a more complicated release form. I now do a very simple model release form that states:

1. I am getting permission to show the art for my advertising purposes (and I list specific things like my website, business cards, etc).
2. The child will not be identified by name.

The parent then puts down their name and child's name, stating that he or she is the child's guardian and signs/dates that permission is given.

As far as sales tax, if it came up, I would state that I am in business and all businesses are required to collect sales tax.

Many thanks to you, Terri and Julie. Your info was very helpful and I plan on doing my own over now with a few additions as you have suggested.

Most people have just signed it, but then they know me personally somewhat and therefore was no question as to my intentions. This client as I said was actually fine with it but suggested that I may want to check further.

I appreciate that all so much. This forum is indeed such a helpful tool. Thanks too, Cynthia. :thumbsup:

Best

Patt

On the sales tax question: You, and everyone else selling art, are required to charge and submit sales tax to the state (assuming you live in a state that has a sales tax and assuming the sale is not to someone in a different state.)

On the question of getting permission to use your portraits in your marketing material: legally speaking an artist has the right to make a forty foot billboard of art that he created and plaster it all over Times Square, if he wants to. The artist owns the copyright to it even if the original art is sold.

What you do need to legally ask permission for is to use "the likeness" of that subject (it's a Privacy law issue, not a Copyright law issue at that point). Whatever language you use in the Model's Release portion of your contract, where you get permission to even paint a likeness of them in the first place, is where you should specify that you need the rights to use the image of that person in your marketing materials.

Thanks. . .I can see some places where my contact could use some improvements.

Thanks Michele, I knew about the taxes and have always charged so. I believe what had happened to this person was the other local artists whom she had purchased artwork had obviously assumed their taxes within their quoted price. But, on paper when one is filing at the year's end, there is a separation there and could be confusing. Why not have the "tax" blank filled in ?

Oh well, we have a contract already. It just seems funny to me that her comment was," hum-m-m-m, I think if the others would have charged me tax I think I would not have purchased them".
Now this person is not an ignorant sort and quite versed, well traveled, and very rich. So I know that it is not a money issue with her.

Thanks and I am definitely doing some changing in my wording of the contract. She was very concerned about the naming more than the photo in the marketing materials.

Best Regards

Patt

Hi Patt,

I just want to say that I have had problems with clients nitpicking over tax or price in general, and often these clients are in no way short of money, so it is not a money issue.

Sometimes I feel that people who buy art feel that the artist should be grateful that their lifestyle is being supported, and not get too businesslike. Some people like to feel that they are patrons of the arts, and they are doing artists a favor while, of course, getting something they want. Art is a luxury item. In their minds, artists shouldn't act as though they are bona fide business people, and if you do, they get annoyed and uncomfortable and maybe even suspicious or worried.

Alexandra, DITTO :exclamati I believe that too. There are still people out there who believe that artists' work is not a legitimate job, only a great pass-time. While it is not ABOUT the money for me, I am so honored and fortunate that I can do what I absolutely love to do and be compensated somewhat with it.

Thanks for adding to this

Patt

Me, too!

As for the contract issues, we have to be consistent and insistent. I had a prolonged contract issue a couple of years ago with a lawyer in charge of contracts for the commissioning institution. He wanted to take my copyright away, and acted as though I was a starving artist and he was doing me a favor by paying me such a high price. I replied that I was taking a cut in my usual fee to conform to their standard payment, and that I didn't appreciate the fact that, on top of that, he was trying to take my copyright away. I ended up keeping the important rights, but I felt he was deliberately creating a power struggle. Later I found out that another artist who did work for the same institution at the same price had no trouble with the copyright!

It opened my eyes to the possibility that people might accept something without blinking from one person, and give someone else a lot of trouble. It is best to be totally confident, firm, but pleasant. And don't be afraid of losing the comission even if you could really use the money.

Michele... hmmmmm... you've explained this so clearly! I'm thinking to incorporate the term 'likeness' and to reword slightly to make sure that mine is completely clear on this. Thanks!

Pat,
I just returned from making portrait deliveries out of state, so I'm in on this a bit late.
My accountant is quite clear about taxes:
If a painting already exists (say a landscape, still life or headstudy) and a collector buys it from your existing inventory, then you are supposed to charge sales tax... but if you are commissioned to paint for a client, you may be eligible to report your income as one who provides "contract services".

Artists that travel from state to state and even abroad for contracted work will find it very difficult indeed to keep up with all of the different sales taxes.

Setting up for contract services is more complicated and you will pay your estimated taxes quarterly, as a manufacturer.

You really should talk to a certified accountant, preferably one that has experience with contract laborers like finish carpenters, interior designers, architects and so on.

As to the subject of using the images of your clients....you simply must have their permission. Never use someone's image or name without permission and most certainly never ever publish images or names of minors without permission from a legal guardian.

I also let my clients know, that under no circumstances am I to be left alone with a minor...
a legal guardian must accompany us at all times.

My accountant and our state sales tax office said that, because I deliver a product at the end of the process, that I am a retailer and need to charge and submit sales tax. Perhaps it differs from state to state but it's better to check. Our state sales tax department audits small businesses periodically so it's better to be safe than sorry!

Arizona in one of those odd states that,as Joy states, does not require state tax to be paid on commission one-of-a-kind original work - however the various city jurisdictions do require a sales tax on all but out-of state ordered and shipped. So you DO need to check!

As in Joy's experience, in AZ, existing inventory would be subject to both state and city taxes, as would giclee prints, etc.

Not be be splitting hairs but if you are not required to charge state sales tax, you'll want to be sure that your commission status doesn't fall into a "works-forhire" category, in which case you may not be retaining copyrights. (Like research done at universities, etc.) If I say anythinkg more I fear it would be reckless. Listen to your accountant.
Or maybe one of our lawyer moderators will pipe up here :)

What a slippery slope. First it will be the artist as a luxury item producer, then Rolex, and finally Rolls Royce. I hope their lawyers are on it.

Well, when you do, be sure and post that, too, so I can update my contracts. LOL.

This is a subject that bears further exploration. I have had many arguments with my husband about this (good-natured, of course) and I have yet to find the final word on it.

Does a person give up their right to privacy when they go out in public? Can you, as an artist, indiscriminately snap photos at, say, a parade, and then paint from the photos? Can you then sell the paintings?

Or, does a person have an inherent right to privacy, and furthermore, do you, as an individual, own the copyright to your own image/likeness?

I know someone who takes photos of people in the subway, and then paints them, and puts the paintings up for sale. I thought she could be risking a lawsuit, if someone walks into a gallery and sees their face on one of her paintings!

Does anyone know the law on this, or is this also something that varies from state-to-state?

Yup.

...and Yup again!

You say yes, but, do you have this on authority from a lawyer? You're supporting my argument, here - I need proof to one-up my husband! LOL

Cindy, two rights generally found to be under state law include the right to privacy (a tort concept, and not always a state law concept) and the right to publicity. Only about half of the states address the right to publicity; sometimes states address this issue under the law of unfair competition (I think). I don't think these rights fall under federal copyright law, but I have never actually looked this up myself. There are a few books you can Google that address this and if you are so prepared you can crow triumphantly to your husband that you know the law and he doesn't, which will really annoy him. ;)

Thanks, Linda. I love crowing triumphantly!

THIS was easy to find, once I knew what search terms to employ.

Stop The Presses!!!
 

Read this:
http://www.artslaw.org/OWNCOPY.HTM

This is something important to know if you get a printer to print giclees for you...

Wow, Cindy-- Thanks for the heads up on the giclees!

A note on state sales tax.

I visited two CPA's and two lawyers and was advised by both that the North Carolina law reads that portrait work is consider a service and is not taxable BUT that the state more often than not will rule against their own reading.

To further explain this anomoly I have two friends that are professional photographers. They both told me their tale of listening to their accountants and how they also called the state for their input on sales tax. They were advised that they need not charge sales tax. After a year of business they were both contacted by the state claiming they were owed back sales tax. When told of their status and the advice they received, the state ignored their protests and insisted they pay, which they did.

Needless to say, I am following my lawyers advice to collect and pay sales tax regardless.

This thread has split into two very distinct topics, privacy rights and sales tax. Here's my hip-shot on the former.

As has been suggested (regarding privacy rights), there is no black letter law or boilerplate language that will apply across the board. Not only is each state free to impose its own requirements (within, of course, constitutional limits), but this is an area of law that is ever developing, or perhaps

Steven, I would be very interested in any recent case law that you discover.

Well, rats, I haven

What quickly becomes apparent upon even a brief attempt to nail down this mass of gelatin is that even a survey of the law would require a small treatise. I can

Wow.

These cases are very illuminating. It says that the law is very mutable, and subject to interpretation as each particular judge sees fit.

The only one that surprised me was the First amendment case where it was considered parody of the judge. Since the artist wasn't a journalist, there was no editorial content to the painting of the judge in horns, so I'm surprised at that ruling.

I love your analogy of the blackjack hand. I think it's very apropos.

So no painting parade scenes, then, without first going to each person in your photo and obtaining their written authorization to use their likeness! DARN.

Again, by the way -- THIS IS NOT "LEGAL ADVICE"
 

Not so much what an individual judge might think, but what the law of the particular jurisdiction is. (As a practical matter, though, an individual judge -- and god forbid, a jury -- can wreak havoc with reason.)

I think the parade scene is tricky . Who would argue that such a deliberate public spectacle wasn't newsworthy?

Yet the trouble seems to come when you, as a private individual (that is, for example, not as a journalist, and not with consent or other privilege) use an image of another private individual for commercial or other "profit" purpose, or if your methodology in either acquiring the image or using it is particularly offensive.

I guess my personal "test" would be to put myself on the other side of the lens or the publicity and consider whether I would regard similar unconsented use of my own image unpleasant or unacceptable. If I wound up on the "Froot Loops" box instead of "Wheaties," I might feel the whiplash of umbrage and have to visit my legal adviser.

"Street photography" generates a huge amount of discussion on these issues. One does need to be very careful when reading Internet pronouncements from the uninformed ("I believe that if you're out in public, you're fair game!!" and "Photographers have legal rights, too!!" Well, duh.)

Here are a couple of URLs for further consideration:

http://www.publaw.com/photo.html

http://www.baja.com/sensuousline/sli...releases.shtml

That's my husband's "intelligent and informed" argument. LOL.

Thanks for the links - I will check those out.

(Edited: I should note that my husband *is* a journalist - an editorial cartoonist, to be specific, and I suppose he applies that journalistic protection of the first amendment to almost everything he does, however erroneously that may be.)

Good point.

To put it in terms more relevant to this forum - say a painter snapped a photo of a beautiful woman at the beach, mabye building a sand castle with her young daughter. The artist went back to the studio to paint the scene, including very recognizable faces.

The artist then makes a ton of giclees of the painting, and sells them for $1000 a pop.

If I were that beautiful woman (a whopper of hypotheticality) - and I walked into a gallery and saw a print of myself and my daughter on our last vacation being sold for a $1000, and furthermore there's a rack with dozens more for sale, and even notecards & postcards with the image on it, I THINK I might start to get a wee bit perturbed.

I think that I would want some recompense, and maybe, even, a slice of the pie, so to speak. I think I'd be on the phone to my lawyer.

The dealer just hit the artist's 17 with a jack.

Paranoia runs deep, only fools can always sleep!
 

I'll be talking to a gallery about producing a series of paintings of an historic area here in Wi. They will be made into giclees and sold by the gallery. Now I fear that the printer, the gallery owners and the non-profit organization will have all the rights to everything, and I will get sued by all and anyone else who wants a piece of the pie! Guess I'll just give up and go eat worms.
;C

Seriously, all this discussion couldn't come at a better time. I've bookmarked the sites and will read and check things out completely before I sign on the dotted line.

Jean

Just be sure to get models releases signed by any people who appear in the paintings, and get the printer to sign a release saying that the artist retains all copyrights to the image.

I think you can go ahead and get a good night's rest and not worry too much.

A lot of this is worst-case scenario, just to give the full lay of the land. Siting the tar pits and the geothermal pools on the park map doesn't mean it isn't perfectly safe to skip down the boardwalks and work from the viewing platforms, as almost all of us are happy to do.

Warning signs rarely deter those with a bent for mischief, but this kind of information could, at the least, alert many well-meaning practitioners to hazards of which they might have been unaware, and to precautionary steps.

As our Vice-President can affirm, once you pull the trigger, somebody's "liable" to get hurt.

Thanks Michele and Steven, as this thing pulls together I'll probably ask more questions. I'm really excited about it and can't wait to get started.
But it all has to wait till summer when the gardens and foliage are all blooming!
Jean

Wow :exclamati :thumbsup: I really opened up a can of worms here with my original question. I want to thank all of you for some great insight into this world of ours about our chosen profession. You each have given some real fine advice and ideas on both the matter of privacy and taxes.

With all of this in mind I have come to the conclusion that 1. I may re-think my profession.
2. Quiver at the knees when my finger presses on my shutter button on the camera. 3Walk away from all those wonderful shots that I've taken avantage of prior, and /or 4
All of the above.

Actually I think that "common sense" used and as Steven suggested "put myself on the other side of the lens"--together along with some great wording in my release forms and a lot of prayer, I may continue with my choice of profession for now.

It seems that the longer you linger about all of this - the more it balloons into such scenerios that one would just need to envelope oneself in a bubble and never come out. So with that said , I shall thank you all again. I have said it before and I will say it again, " this site and forum with all of you inside just cannot be beat" . You are so helpful to us all. The insight is endless. BRAVO TO ALL. :thumbsup:

With gratitude--

We've managed to make a complex world of it, but clicking through to many of the articles on this site will go a long way toward making some sense of it --

http://www.publishingattorney.com/

Steven et al, ;)

Please correct me if I am wrong ( you will get extra credit:) ) but why in the world are we talking about this?????

Take your own reference photos.

Get releases or don't.

No reason to push the envelope, seriously! It's OK or not OK.

Respect your clients, and talk to them.

Get a copyright release from a photographer, or don't use the photo.

I don't really understand why it's necessary to dance on the edge unless you like that kind of thing.