The monkey photo brings up an interesting question of precedent. If an image/recording automatically falls into the public domain because there was no human authorship, what would that do to the recordings by security cameras or dashcams? There’s no human involvement that includes creative/artistic/cinematic intent, and no “sweat of the brow”, so it may not reach the “threshold of originality” to be copyrightable. Apparently this has never been tested in US court, and the one case that would’ve done so fell apart before trial. One could perhaps argue that anything caught unintentionally, such as leaving a camera running after an intentional shoot finished, or dropping a camera accidentally which captures the failing optics and leads to a work of abstract visual art is not copyrightable.
For the last few years when I was buying school or sports team photos of my kids we had the option to receive digital copies of the photos with the right for (non-commercial?) reproduction. Cost about the same as a medium sized photo package to just buy the digital photos, something like a $10 adder if you bought a package (and the more expensive packages include the digital photos).
Thanks, everyone. 
Today, very few professional photographers that take pictures of people (weddings, parties, Christmas cards, birth, new babies, etc.) use film with negatives. Over the last 15+ years they have all (the ones that I have interacted with during this time) now use digital pictures. And they have always just sold us a DVD or more recently a link with all of the pics with download rights. We then decide which pics we want to send off to our preferred print company or card company for the final product we want.
Yes, and that is what I do too (although I do offer prints and merchandise for purchase as well), but the license granted to the purchaser is still limited to personal, non-profit use only. So while they can get prints, tote bags, mugs, etc. printed wherever they want for their own use, they do not have the rights to use those photos in books, newspapers, magazines, on TV, or to resell those prints or merchandise on Etsy.
Even posting on social media is technically a license violation (but I give the ok to the rare folks who ask, and it’s not worth policing otherwise) because the license prohibits “selling or distributing electronic copies of the Work as standalone files or as part of a product from which a person is able to extract the Work as a standalone file”. Granted social media sites tend to re-compress and/or crop images so it’s not exactly the original, but since I do mainly shoot public sporting events and some architecture there’s individual photos that can be of interest to multiple parties.
So just because you bought a disc or downloads, it doesn’t mean you have carte blanche to do whatever you want.
I highly doubt there’s much money in people purchasing my Christmas card photo on a coffee mug off of Etsy. Although, I’ve been told my likeness could be mistaken for Brad Pitt.
Question:
Even if the photographer owns the picture does that grant them the right to use it as they see fit?
It is still your likeness and I would hope you could stop them from selling your photo to be used in a herpes treatment advertisement.
Well, I learned something in this thread. I knew that the photo companies could use the pictures (for instance, to advertise how good their photography skills are), but I had assumed that the standard contract would transfer ownership to the customer with a license to the photographer, as is usual for a work for hire.
I’ve seen a poster in a number of schools with a picture of a creepy cyberstalker guy, to discourage kids from sharing too much information online. I’ve often wondered about the model for that poster… Does he mind that that’s the public image of him? Is he proud of how well he depicted a creepy cyberstalker? Was it just a paycheck for him, and soon forgotten?
Work for hire applies almost entirely to employer/employee relationships. It’s between the photographer and (for instance) Sears Photo Studio. It’s not between the photographer and the customer, or between Sears and the customer. It’s a situation where the copyright transfers from the creator (photographer) to their employer (Sears) because photography is their job, and they are doing that job as an employee for a company. To create a work for hire agreement outside that situation, such as a freelance photographer, is surprisingly difficult and must meet many criteria and be agreed to in writing beforehand. For 3rd party contractors it’s generally limited to those contributing to collective works such as movies, textbooks, compilations, and atlases, not someone running their own neighborhood photo studio.
The creepy cyberstalker guy may have been contracted directly, or his image may have been purchased from a stock photo library. In either case, the poster being a commercial product means that person would need to sign a model release/liability waiver for use of their image. From Wikipedia: “No release is required for publication, as news, of a photo taken of an identifiable person when the person is in a public place. In general, no release is required for publication of a photo taken of an identifiable person when the person is in a public space unless the use is for trade or direct commercial use, which is defined as promoting a product, service, or idea. Publication of a photo of an identifiable person, even if taken when the person is in a public place, that implies endorsement, without a model release signed by that person, can result in civil liability for whoever publishes the photograph.” It’s not a copyright issue, but falls into realm of privacy and defamation.
So, similar to a customer being generally limited to non-commercial usage of a photographer’s work without explicit licensing terms, the photographer is also generally limited to non-commercial usage of the customer’s likeness without their permission. Editorial use, mainly news reporting and such, straddles that line between personal and commercial usage. Self-promotion of the photographer’s skills is also a bit of a middle ground. If you’re making a product to sell which features a photo of someone, then that’s pretty clear “direct commercial use” where you better make sure the photographer got their model releases and you have the proper copyright license from the photographer.
…a bit of googling shows that Sears Portrait Studios was owned by CPI Corp, and when they shuttered in 2013 many of the assets were purchased by Lifetouch. Lifetouch in turn were purchased by Shutterfly in 2018.
So maybe the first port of call would be the Shutterfly support chat:
https://support.shutterfly.com/s/article/lifetouch-shutterfly-digital-delivery-account-linking
(Click the support button in the bottom right) They may be able to help, assuming that the copyrights were included in the original asset transfer. If not: they may be able to point you in the right direction.
I’m guessing the issue with monkeys vs. security cameras is initiating the photo. I assume the same would apply to motion sensor “trail cams” set to snap a picture of wildlife if they wander down a game trail. In the monkey case, the monkey had to actively point the camera and press the shutter to take the picture, therefore “he” was the photographer. There was no guarantee that the shutter would get pressed, the monkey had to actively do a picture-taking action. In the case of security cameras, they are either recording all the time or recording any motion. The person walking past the camera does not have to do anything out of the ordinary to initiate the recording, there’s nothing specific, or voluntary, they have to do relating to the camera.
However, that sounds like hair-splitting.
The human photographer in the monkey situation argued that he set up (curated?) the situation, knowing that the monkeys were curious and would likely take the camera (which he left out for them) and play with it. There was nothing accidental or incidental about it, and he was attempting to incite a creative work even if he didn’t actually push the button.
A trail camera could be similar if the intent was to capture an artistic image of an animal that wouldn’t be possible with a human present. There’s creative intent there. Whereas with a security camera, or a trail camera whose only purpose is to count animals passing by, may not qualify. In either case, how the camera is triggered, whether by motion or monkey, is less important than who set up the camera and why. Intent matters.
For anyone unfamiliar with the “monkey selfie”, here is the Wikipedia article, with the photos in question.
Personality rights, aka “likeness rights”.
Varies by jurisdiction. In the US, it’s primarily controlled at the state level.
As such, it’s hard to state anything with certainty, except “you can sue anyone for anything at any time.”
Lots of legal things are hair-splitting. For the monkey selfie, in the US, the UK (where the photographer was from), and Indonesia (where the picture was taken) copyright applies to human created work, because that’s how the law was written. Congress could change the law, so that inducing an animal to create a work makes the inducer the owner of the copyright. So whatever original work of literature those million monkeys type, will not have a copyright.
Some people get upset about this, because somebody must own the copyright, but that is not true. A work can be created and immediately exist in the public domain. Most works created by the US government are in that category. Nobody would expect a rock formation weathered into an interesting shape to have a copyright (though a human taken photo of the rock would).
Other good ones to argue about: if you leave cameras on the tables at a wedding, who owns the copyright on those pictures; what about elephant paintings; what about music or art created by an AI; what if the monkey camera had been programmed to take a picture every 10 seconds, instead of when the button was pushed (similar to @jjakucyk’s trail cam example)?
This goes back to my hair-splitting issue.
To take a picture, the monkey had to specifically push the shutter. Therefore he initiated the picture. If the camera were programmed to snap every 10 seconds and then “released into the wild” (Or capture motion and mounted to a base, tree on a trail, weather balloon, or stuck through a hole in the ceiling, etc.) then the person who initiated that setup is actually “taking the picture”. The subject does nothing they would not have done if the camera were not present.
Holding the camera when it goes off does not make you the photographer; pushing the button to initiate the taking of the photo does. If I ask you to hold and point the camera at me, then I trigger it with a remote, who took the photo? I guess, other than with a monkey, has this sort of hairsplitting made it to trial?
Note that there have been numerous prosecutions for cameras hidden in women’s washrooms and changerooms; in all these cases, the person setting up the camera is deemed responsible and charged for the appropriate crime; whereas in several cases, an under-age girl taking a nude selfie has been threated with child porn laws and registering as a sex offender, because she did initiate the picture-taking.
But can you see how, in that situation, simply pushing the button is little different than the automated setup? Pushing a button isn’t creative. Setting up the shot, adjusting the camera’s settings, white balance, zoom, exposure adjustment, focus, those are what the photographer is doing, and that’s the part that’s supposed to be creative and covered by copyright. At least the monkey had to compose the shot, even if blindly by accident, and the camera took care of the rest. But there’s at least some argument that the human still had to set up the situation.
I don’t think that’s so cut and dry. Is setting a timer the equivalent to pushing the button? What if I set up a tripod shot of me and then ask someone else to push the button because my remote is broken? They didn’t do anything creative. If they looked through the viewfinder and re-framed the shot, then that’s a different story, but the button isn’t really the defining factor.
Those aren’t copyright situations though, so they don’t really apply here.
Most photographers who have any significant experience will have you sign a release or waiver of some sort before using your picture in such a way. Some jurisdictions require that sort of thing for any picture that’s used for commercial purposes.
Typically a model release is executed unless the photo is taken in a public place, or is a news event, or is a celebrity.
On such picky details are lawyers’ country club fees earned.
I’m sure lawyers made more money off that photo than the photographer… or the monkey.
But it does show who the law feels is the person responsible for creating the pictures, which is why I mentioned it.