There are a lot of contradictory uninformed “opinions” swirling around in this thread. The bottom line, PapSett, is that it depends upon what you signed. If you have a copy, then read it closely. If you don’t have a copy, ask the photographer to show you where you signed over your rights to a work *that you commissioned. *Find a lawyer, in your state, if you need further clarification.
It doesn’t matter. Unless the photographer signs over his rights, the copyright belongs to the photographer, no matter who commissioned the work. Just because you commission a photographer’s work does not mean you own his photos. HOWEVER, the photographer, absence any agreement, is generally limited to how he can use those photos. Editorial use is almost always fair game. Commercial use almost always requires a release of some type.
Exactly!
When a consideration changes hands, the rules change. Again, this is why I recommended asking an actual lawyer.
I’m not too sure about this. Without any agreement, the photographer as author should hold exclusive rights in the picture. The fact that you own the subject matter does not matter, as the look of the subject matter is not copyrightable in itself, because it is not fixed. The author of the work, therefore, should be the holder of the copyright. This of course changes if the photo is of a copyrighted/copyrightable work, such as perhaps a photo of your dog.
I have never argued that the photographer is not the sole holder of copyright. This is not a copyright issue.
Anyhow, here is the ASMP’s tutorial on property and model releases.
It is not an issue of copyright–it’s an issue of privacy rights.
The section I quoted pertains to model releases (people).
Here’s the tutorial on property releases. At the moment, there’s no legal precedent establishing what the photographer in the OP was illegal. The relevant argument is the following:
Ah. That explains it… no privacy rights this side of the pond. 
I must say it seems a bit odd to say that conversion could be used, though. As far as I know (not very far, admittedly), conversion as a strict liability tort is generally used only with regards to chattels, and can only be used when some right of the chattel that belongs to the owner has been assumed…
If the chattel in this case is taken to be the dog, there is no such thing as a “right to exploit unfixed image”. If there is no right to be converted, then there cannot be any conversion. For example, if I rent a lightbulb, but the licence does not include the right to move the lightbulb, I would not be able to sue if someone else moved the lightbulb, because I did not have that right in the first place. None of my rights were converted. Perhaps trademark? Even if so, it would be dealt with in trademark law, and not conversion.
The article equates the picture of the house to the house, but that isn’t correct. The copyright in the picture is seperate from the subject matter. The photo itself therefore is a seperate property from the house. If you could indeed sue in coversion, that would be a back way into copyrighting the subject matter, which is explicitly against the idea of copyright, in the separation of ideas from implementation. As in Natkin et al v. Winfrey et al., the owner of the subject matter has no rights in the photograph, unless contracted for.
If the conversion argument could be used, why was it not used in Natkin et al v. Winfrey et al., as I have refered to above?
Doesn’t make sense to me… I would have thought Natkin et al v. Winfrey et al. settled any possible question in this area. Regardless, lawyers always love to cover their asses…
I admit that the property release situation is a bit vague. Personally, I do not see anything wrong with using a picture of somebody else’s dog commercially without the owner’s permission. I would still, as a matter of courtesy, notify the owner if possible, but it be nigh impossible to make a living as a photographer if we had to release ever single thing we photographed.
However, from your statement above, are you saying that on your side of the pond I could take an editorial photo of you and use it in a commercial/advertising context without a model release? Say I take a portait of you for some business magazine, and then I sell it to Trojan or Viagra to use to promote their products. Somehow, I don’t think this would be permissible, but I could be wrong.
Funny you bring this up… but in fact, my picture WAS taken, and splashed over an national newspaper front page, without so much as a free copy. Harrumph. Bastards.
As for commercial uses, the closest we got was Hello! v Douglas, about… Catherine Zeta Jones’ (I had to check. :p) wedding, and the exclusive photo deal she made with… someone. Bah. Read the case for details. In short, she had to rely on “breach of confidence” in order to sue the photographers that secretly took photos and published them.
We also have cases like Tolley v Fry, where your personality is protected by means of defamation, the implication being that by using his image on a commercial product, Fry implied that Tolley, an amateur golfer, had taken pay.
What this means is that although there is no right of privacy per se, economic interests and “reputation” can be protected through the use of “breach of confidence” and “Defamation”. Therefore, if you want to sue, you have to prove one of the above (or some other thing like breach of contract or whatever), you cannot simply say that “Well, this is a picture of me, and therefore I have the right to say you shall not print this”. In the case of me, well, it wasn’t very defamatory (apart from appearing in the Guardian, ick! Well, could be worse. Coulda been the Sun), and they did not have a duty of trust and confidence with me. So, I am SOL.
A shock to you 'murrikans, I know.
Why? cite, please. If the owner of the dog is not identified, I don’t see a privacy issue. Can you explain what property interest the OP has in the dog’s appearence? What is the basis for saying that commercial use requires a release?
Any creature that licks its balls in public does not have a reasonable expectation of privacy.
This is editorial use. I see no problem here.
Hello! Magazine also qualifies as editorial use to me, not commercial use.
I’m asking for pure commercial use in which a release is not required. To be absolutely specific, I’m talking about advertising. The Guardian can print your photo as much as the Chicago Tribune can print my photo, as long as it’s in the context of a news story. If it’s a house ad for the paper, that’s different. That’s commercial.
Hello! Magazine use is also editorial. It’s not what is normally considered commercial use.
So, no, there’s no shock to us Americans as the papers here would also have been well within their rights to publish your photo.
The details are in the ASMP article linked to above. My final conclusion was that no property release is required, although this hasn’t been fully tested in the courts.
Sorry, I meant for privacy rights to refer to pictures of humans which require model releases, not the case in the OP. Sorry for the confusion. I tried to clear that up with the property release citation that followed.
…Except, of course, for the fact that she does not have balls to lick. :rolleyes:
There is a short blurb in http://www.sirimo.co.uk/media/UKPhotographersRights.pdf (warning PDF) that seems to agree with what I say, and many people seem to trust it… but I, not being in the industry, don’t really know. It seems to cover your question.
In Tolley v Fry, it was notable that Fry was not sued merely for using the image of Tolley to sell his chocolates (Is that considered commercial use?), but instead he had to sue for defamation, by implying that he was paid, when he was an amateur golfer, the implication being that if Tolley was NOT an amateur golfer, he would have been out of luck.
I don’t quite see the difference between putting a photo in a newspaper and in an advertisement, but I can tell you that if you were advertising for something that was defamatory to me, then I can possibly sue you for defamation. This requires that the use of my image was defamatory, although the limit may be somewhat lower than you expect… one case was where the Princess Yusupov was portrayed as raped by Rasputin, and therefore considered defamation.
That’s as far as I can take it, I’m afraid… I can tell you that if you used my picture to advertise something totally innoculous, like say… mint, and it was not defamatory, not a breach of confidence (I assume if the photograph was commissioned it could be considered a relationship of trust and confidence, although I’m not sure), and it was taken in a place where I could not have any reasonable expectation of privacy (stretching the breach of confidence here) then it wouldn’t matter how you used my photo.
The divide between commercial and editorial escapes me, however. There was a recent case about Naomi Campbell being snapped coming out of an Narcotics Anonymous meeting, and she won the case based on breach of confidence grounds. The that it was “editorial” didn’t mean that she had no case. Same with the Catherine Zeta Jones case, the fact that the photo was used “editorially” had no bearing on the case. What’s the difference, anyway, if the newspaper is being sold? Isn’t that commercial?
Perhaps the “editorial” “commercial” divide is present in US privacy law, and that there is an exception in US privacy law for “editoral” uses, but since there is no privacy law here, there is no need for an exception. I would say that advertisements would probably be caught by breach of confidence, although I’ve not heard of any test cases. The law on privacy (if any) is still rather nebulous in the UK.
[QUOTE=Tabby_Cat]
There is a short blurb in http://www.sirimo.co.uk/media/UKPhotographersRights.pdf (warning PDF) that seems to agree with what I say, and many people seem to trust it… but I, not being in the industry, don’t really know. It seems to cover your question.
[quote]
That pretty much reflects the same laws as in the U.S. Once again, nobody is arguing that the photographer doesn’t have the right to take these photographs. However, you may be restricted in how you can use those photos.
There is a big difference between editorial and commercial use. The free press in our countiesy pretty much allows us to use any photographs in an editorial context without having to worry about releases. The same sort of protection is not applicable to other uses.
Here’s another citation:
After a little more hunting, it does seem that U.S. and UK laws differ on the subject. For my Trojan or Viagra example, the person photographed apparently does have recourse as the moral rights of the subject were infringed but, barring that, pictures can be used commercially over the pond without releases.
Interesting.
First of all, IANAL. However, I do know something about business. 
ICBW, but I’ve an idea that a complaint to eBay would result in some action. But PapSett would not benefit thereby, unless you count satisfaction. If the seller doesn’t respond to that first message, I’d think about the following:
Send another message to the photographer, saying that you’ve asked for advice (true; no need to say where or from whom), and it is your understanding that it is not legal for a photo taken for sale to the owner of the subject to be used for commercial purposes without a signed release from the owner. Say that you are willing to sign such a release in return for a stated number (I’d recommend asking for no more than two, and that may be pushing it; the item description makes it sound as though the actual cost of acquisition and printing per tee sold is at least $10, perhaps as much as $15, depending on the number of tees purchased and the volume processed at a time. Upon rereading the description, I may be underestimating the cost of the tees themselves, sans processing). It’s important to understand that providing you with even one tee takes the profit out of quite a number of sales. I don’t have information to even guess how many tees she’d need to sell to pay for the tee(s) she gives to you.
I am not, however, suggesting that she owes you nothing; quite the contrary. She’s done something stupid, and stupid is always expensive in the great University of Life (sometimes known as the School of Hard Knocks).
I think the seller must make (or have someone else make) the tees one at a time, as there is no predicting just which pair of appealing eyes people will want to buy. It takes a big operation with a significant profit margin to print them up in advance.
The cost per tee may well be several dollars higher (If dye sublimation is the process involved, it’s a pretty expensive printing process when used on paper. It would be far more expensive, given that with cloth you must saturate half the surface areas of the threads, which is half the surface area of a large number of cylinders - porous ones, at that - rather than a surface that’s fairly close to a plane, and a great deal less porous. It’s far worse if the printing is jobbed out, not done by the photographer. Someone else with cost accounting experience specific to the printing business could make a better guesstimate.). Then you add in the fees for eBay (1) store, (2) listing, (3) sales, and (4) Paypal fees - none of which are insignificant - and then you add in a factor for (5) losses to NPBs (non-paying bidders) and people who intend to cheat the seller (you’d be surprised at the frequency that those happen). You can see that the profit margin shrinks while you watch, as the shirts are apparently warranted not to do.
What you do not want to do is tell the photographer about your possible range of actions in response to what she’s doing, at least not until after you’ve come to some settlement. Afterwards, I think it would be a matter of kindness to let her know the risks she’s running, operating in the way she has been.
Actions you can take:
[ul]
[li]complain to eBay[/li][li]complain to the dog club which gave the show[/li][li]complain to the company which superintended the show[/li][li]complain to the professional photographers organization[/li][li]complain to the AKC[/li][/ul]
The possible actions above are listed in order by (my perception of the) increasing severity of sanctions that various organizations can - and are very well likely to - take; the last two may be in the wrong order. Anything above the level of the show-giving dog club could well result in her losing the privilege of taking photos at dog shows, period. I don’t know what a photographers’ association would do, but ISTM that many other professionals might consider her actions unethical, which is a whole 'nother ballgame, one with consequences that might be catastrophic to her career, depending on how her peers - and seniors - see it.
In consequence, I’m sure you understand that these are things you should not, not, not do to her, in the absence of serious provocation from her. Why? Because any one of the last three options is pretty much “nuclear bomb” territory, an excessively severe punishment for what I suspect is merely ignorance.
A point of interest: At least 15 years ago now, I saw a mug with a beautiful photo of a Great Dane on it in (IIRC) a Hallmark store. When I looked at it, I says to myself, says I, “Wow, that’s a von Raseac bloodline puppy” (guessing the dog at 10-18 months). Because it was a beautiful pup, and a good photo, I bought the mug. AAMOF, I had tea out of it this morning. 
Since that bloodline is mainly found in California, with some penetration of the southwest and northwest - rarely elsewhere - I don’t doubt I could have tracked down whose pup it was.
Given the locale, I’d bet that the photographer who took that shot got a release; dog fanciers from that region tend not to play around on such issues, and most of them have money and influence. And that brings up another issue, which should explain why I even thought about giving a list of options: Most photographers at dog shows are professionals who are well known in the dog fancier community (probably the same for those who do cat shows, and certainly for those doing horse shows). Those with a reputation make good money at it, even after you discount all the photos taken, but not purchased. However, I’m sure that digital photography has greatly reduced the financial impact of the latter, or will soon.
I suspect that the guilty party in this case is relatively new at it, and doesn’t realize the magnitude of what she’s done. She’d have done much better to have set up and advertised to do pet portraits. The vast majority of people who want a portrait of their pets would tend to sign such releases as a matter of vanity, and be thrilled at the idea that their pet’s being used in such an enterprise (except for the small percentage who would want a cut of the action. She could eliminate those by a clause in the contract to take the photos state “I authorize/do not authorize (with check boxes) the use of my pet’s photograph by the photographer without compensation or obligation to me.”).
And, as I think about it, I believe that if I were advising the photographer, in addition to getting releases, I’d see about getting listed in some other, possibly cheaper, online venues. Yahoo and Amazon stores both come immediately to mind, and may involve lower fees than eBay, for ongoing sales of product. If the fees aren’t lower, I suspect that the exposure cost per pair of eyeballs is less, as those are much likely to show up in an internet search - although eBay results are beginning to show up, I’d bet the others are - and are likely to remain - better choices for an ongoing business with a homogenous product line.