To my great surprise, our local Daycare centre had picture day last week.
Given that my son is only a few months old, I thought it a bit silly, but figured it was a good way to get another professional photo of him as well as giving back to the school (just getting started, not up to the full complement of students they’d hoped to get to keep going beyond the first year).
However, when I got the proofs back, there was a small line (misspelled, no less) about the photographer reserving the right to use my son’s (well, anyone who had their pic taken by this company) photo for promotional purposes.
So, by ordering photos from this small local company, I have to agree to this? I have no out? I don’t want my kids exploited (except by me, for profit ;)) or used for ‘promotional purposes’ by anyone (I signed the paper that the school gave me for their use with a large, emphatic NO) … would a letter to the photo company specifically denying this ‘reserved right’ be enough to cancel their poorly spelled attempt to hijack my son’s image to showcase their work?
Or should I just not buy any of these super cute photos and get my kid down to Target photo studio or the like before he ages another day to capture this moment in time?
Or buy them, do nothing else, and if they do try to use the photos, note that it was misspelled so I didn’t think they really meant it or that it was actually in some way legally binding?
My WAG (wild ass guess) is that since the photographer holds the copyright on the images, he can reuse them as he wishes. And commonly, the way he would do it - and the way that people would find out about the pictures of their kids being reused - is through advertising of some sort. Perhaps newspaper ads, portfolios of his work at his company, and so on.
It would have been nice to mention that ahead of time, but I think you’d run into the same situation at Target - they own the copyright on the photos they take, too.
Owning the copyright and requesting to use the pictures for promotional purposes are two different, things, I thought, though, Ferret Herder.
For example … an architect designing a house couldn’t just take the pictures she took of the house and put them in a magazine or ad without consulting the owner of the house/client who commissioned the work, right?
And my thinking is if it’s automatic with the copyright, why do they need to specifically reserve it, as well? And why do I have to “agree” to it in one form or another?
I read the stuff at Target before we used their service and saw no mention of re-use of photographs/images/etc.
I wouldn’t count on a misspelling to void anyone’s rights.
You may be able to indicate your refusal to agree to promotional use along with your order – e.g., write something on the order form (and photocopy it for your files) indicating you do NOT accept that as a term or condition of buying the pics.
It would tick me off enough to not buy the photos if they didn’t graciously comply.
IANAL, etc. The misspelling, unless it materially alters the meaning of the clause, is of no legal effect. “Pramatianal purposes” will be construed by the court as “promotional purposes” as long as the intent is clear, although ambiguity is construed against the drafter.
There is a difference between holding a copyright on an image of a house versus an image of a person. A person has some right to control the use of his or her image. A house does not, nor does the owner of the house (although use of the image may give rise to claims like defamation depending on how the image is used; slapping up a picture of your house over the caption “this house is a typical crack den” could land you a payday in court). I believe the right to control one’s image is called the “right of publicity” and it derives at least in part from the constitutional right to privacy (I may be wrong about that). Basically, you can’t be presented as endorsing a product or service without your consent and using your image in promotional material implies your endorsement; why would your picture be in the photographer’s portfolio if you didn’t like his work? So you’re being asked to sign a release on behalf of your child. If you sign it, it’s legally binding and the photgrapher may use your child’s image as he sees fit in accordance with the terms of the release.
I wouldn’t count on a misspelling to void anyone’s rights.
You may be able to indicate your refusal to agree to promotional use along with your order – e.g., write something on the order form (and photocopy it for your files) indicating you do NOT accept that as a term or condition of buying the pics.
It would tick me off enough to not buy the photos if they didn’t graciously comply.
For example … an architect … assuming part of the contract hadn’t specified one way or the other.
But I guess I have done nearly the same thing … when I went from one job to the next, I always requested their persmission to show what I’d done for them in my portfolio. Never got it, still showed my stuff, though I didn’t ‘publish’ it or leave it with someone long enough to allow for reproduction.
The misspelling will almost certainly have no legal effect. In general, as long as the terms of a proposed contract are reasonably clear they’ll survive scrutiny. No one is served by a doctrine of contracts where tiny lacunae or mistakes can void or modify important aspects of a deal even though those problems didn’t actually confuse any of the parties as to what they were agreeing to.
Perhaps you should call the photographer and ask if he’ll still sell you the photos even if you refuse this term. You may well be able to come to agreement. Just sending in the form, though, without some additional arrangement being made, will most likely be considered assent on your part.
Although I’m a lawyer, I don’t know anything specific about copyright or “unfair use of a photo” or anything, but here I go yammering anyway:
You said that “I signed the paper that the school gave me for their use with a large, emphatic NO.” Does this mean that the photographer gave you a sheet of paper asking you whether the photographer could use the pictures he took for promotional purposes and you said NO?
If so, then I’d think that the langage on the photo saying “the photographer reserves all rights to use this picture” is null and void because of the paper you signed saying NO. The photograpaher doesn’t have any rights to reserve.
Also, yes, copyright on the picture and the ability to use somene’s visage in advertising are different things. There’s a famous case that all lawyers read in torts class where a woman sued because someone used pictures of her in advertising without her permission, and she won.
Sorry, I was unclear, TaxGuy. When I filled out the piles of paperwork required to send my son to this daycare, included was a form stating that the daycare could photograph him for their purposes and advertising, promtion, etc. A standard form one would fill out for say, dance school, where they’d film recitals and the like.
I’m reasonably certain the photographer and daycare aren’t really related … I think I’ll call and ask, anonymously, then check with the daycare to see if they’re getting a piece of the action (I hope so) and send a signed letter in along with the order, either way.
I’m a lawyer but I’m not your lawyer, I’m not licensed in your jurisdiction, and I’m not an expert in contract law.
With that out of the way –
The misspelling is irrelevant.
The copyright issue is separate from the appropriation issue (i.e., use of the kid’s image for promotional purposes).
If you buy the pics the regular way, you are most likely agreeing to the terms. Just writing “No” on a standard form is not necessarily effective. Essentially what you’re doing is rejecting the offer, which means that there is a question of whether there is a contract at all and what are its terms. The photographer still might have a right to use the image for promotional purposes.
If you don’t want to agree to the terms, it would behoove you, I think, to contact the head of the photo studio personally and try to negotiate a separate deal through which they don’t get the right to use your kid’s pics for promotional purposes. It is likely to mean that you will pay more money for the pics.
I’m with ascenray on this. Just writing “no” – or even writing an explicit letter – will engender confusion about the status of your son’s photo. The photographer might end up using the photo, thinking he has a legal right to do so. Sure, a court might later hold that your letter was effective as a counter-offer and the photographer accepted it by processing your order, but so what? You’ll only get to that point after the photo is used. Just call the guy ahead of time and work something out.
Just call - I’m sure they’ll be fine with it. It’s possible they wrote up a contract with all sorts of stuff they don’t intend to use. A software company my friend ran had a contract that allowed us to kill any livestock impeding production. Granted they probably mean their’s more, but it might be the same.
