Artist drew a portrait of my adopted son and won't remove it from social media?

[giddyuproo]

Hello,

No idea if I am being unreasonable here... I paid an artist to do a portrait drawing of my son (who is adopted and for safety reasons cannot have any public photos, etc.) the artist posted the finished artwork with the photo reference she used.

I asked if she would please remove it and she says no and that she has every right to post it and needs to for her portfolio...

I don't really know what to do here. Is this true? Can she just use them? :/

Thanks

Do keep up @BalloonSlayer

From the OP "the artist posted the finished artwork with the photo reference she used."

friend had this happen.got in touch with them facebook and Instagram via twitter and they sorted it pronto.fingers crossed you can get it sorted this is shitty of her.

"An issue which is often forgotten, but which is important, is copyright. Copyright always rests initially with the artist, but can be sold or assigned to someone else, as an entirely separate commodity from the original artwork. All changes in ownership of copyright must be done in writing and signed by the artist, otherwise they are not legally binding.
Copyright remains with the artist so he or she can earn money in the future from sales of licenses in the image. If your commission is for a neutral subject, then this should not be a problem for you. However, in the case of portraits, most people would prefer for their image not to appear on merchandise. In this case, you need to arrange, at the outset, for copyright to be transferred to you. The artist is under no legal obligation to agree to this, but, so long as you discuss the matter before the artwork is created, you can always take your business elsewhere. And most artists should understand your concerns. It is quite common, particularly among famous people, for such a contract to be made.
Prior to August 1989, when portraits and photographs were commissioned, copyright rested with the person (or organisation) who commissioned the work. This is no longer the case. So, in theory, an artist or photographer can now sell your portrait or wedding photographs for any use they wish, unless you make a contract stating otherwise."

I am not sure she is allowed to post the photograph though, I think she needs a signed model release form for that but I could be wrong.
If it's on Facebook, you can try asking them to remove it if your child is under 13.

"The following content may also be removed [from Facebook]

A reported photo or video of people where the person depicted in the image is:

A minor under thirteen years old, and the content was reported by the minor or a parent or legal guardian

A minor between thirteen and eighteen years old, and the content was reported by the minor

An adult, where the content was reported by the adult from outside the United States and applicable law may provide rights to removal"

i am so furious for you right now. i signed up just to post a reply! i am a photographer so i’m used to dealing with consents etc. so if you gave her permission to share the photo / her version of it, it will have been on a model release form or similar. even if you gave consent (which you clearly didn’t) you have the right to revoke your consent AT ANY TIME and it’s effective immediately. if I were you i would tell her again that she needs to take the photo (and her portrait) down off the internet within the next hour, or else you will be phoning the police and social services as she is risking your child’s safety. and then if she doesn’t remove it, do what you’ve said you’ll do - phone the police and social services. she sounds awful and i’m sorry for the stress she’s causing you x

i’ve just seen the posts about copyright, and although that is true, she does own the copyright to the portrait, she still can’t share it without your explicit consent. hth x

OP, I have nothing helpful to add other than what a bitch and make sure you give her hideous reviews on absolutely everything.

Whoops yes sorry guys just noticed that now

It is an image. Under gdpr that would count as identifiable information.

I don't necessarily disagree (certainly about the photo), I just think there is too little info to be certain. My main point is that the ICO may not act, if the artist ignores them, but I still think it's worth contacting them.

Thank you. No there are no names involved but it really isn't the point. There is a safety risk from birth family and to be having his photo shared so publicly is extremely worrying for me, especially when he can't even be in photos for the school newsletter, etc.

He is under 13, so I will definitely try reporting then.

Yes, it's both a drawing and a photo.

I didn't sign anything at all? It was commissioned, but I didn't have to sign anything.

Another (less ethical) tactic would be to explain in painstaking and graphic detail what the birth parents will do to either the child - or to anybody they suspect might have information as to their location.

None of it actually has to be true, but sometimes I think extreme methods are justified - such as when the safety of a child is at stake.

I have only read your message Giddyuproo.

I would contact Social Services or the police as it is a Safe guarding issue. They should make her take it down. F

If it's a safeguarding issue contact your social worker or the police and have them call her.

she sounds really dodgy then. you should have had a contract with her (this is her fault not yours). honestly, i have so many photos from sessions that i can’t share because the parents didn’t give permission (which i totally understand and respect), no photographer / artist in their right mind would go against that. it’d be such a shame if we all found out somehow who she was and bombarded her with messages to delete the photos... just saying... i really hope you get this sorted OP x

Oops posted too soon. I was going to say “ for goodness sake she should respect your reasons. “ We’ve had children at school where we have to remove them before newspaper photographers take photos and we banned videoing Christmas plays.

Also I thought parents had to give written consent for their children's photos to be posted online.

Photographer working with children here - you need specific consent from parents/guardians to use pictures of children on social media. The same as schools & extra curricular clubs have to ask for permission for children to be photographed for the newspaper/ school website/newsletter etc. Even more so now with the new GDPR.
I take allot of images of children & it can be a bit annoying if there’s a particularly good image I’d like to use but the parents don’t give permission but that’s life, there could be a very important reason why so you just have to accept it. It’s very poor of her to keep it up for likes/shares, this is a child’s life & her reputation is likely to be ruined if this got out!!!

Send her a very short message
Dear portrait artist, whilst I am very pleased with the work you have done, I did not and going forward do not consent to you using the photograph image of my son. I have not signed any contracts to say that you are able to use his image & for personal and safety reasons do not allow his images to be used on social media. We commissioned a portrait for the family home not for others to see on social media. I kindly request that you remove this image with immediate effect. If the image is not taken down by xx (date) I will be forced to contact my solicitor along with the police and social services & will be reporting the image to Facebook as this is a safeguarding issue. Many thanks giddy up

The portrait image is her property and she owns the copyright for that so as long as she doesn’t include names/addresses etc she can use that online. but I’m assuming the original photograph that she used for the portrait she didn’t actually take? If so she shouldn’t really be using that online without your permission, but I guess you gave it to her to copy so that may muddy the waters a little. Hopefully the threat of police etc should be enough for her to remove it.

The portrait image is her property and she owns the copyright for that so as long as she doesn’t include names/addresses etc she can use that online.

This is a commissioned work, a work for hire.

It is important to know that copyright nearly always rests with the artist, regardless of who owns the artwork. There are exceptions to this rule, such as work that has been specifically commissioned or completed during employment, in which case copyright stays with the commissioner or employer.

www.writersandartists.co.uk/artists/advice/169/an-artists-toolkit/essential-information/copyright-law-for-artists

The legal stuff is all well and good (assuming it's not superceded by a court order that included orders to protect a child) - but would that really help the artist if she suddenly had, say, a six foot five child abuser battering her door down at 3am because she knew where his biological child was and he was going to make her tell him by whatever means necessary?

Who took the photograph. If you took the photograph then you own the copyright and can ask her to take down th photo at least. In the mean time I would comment on the post explains what you have here and asking people not to share. Hopefully the bad publicity will make her take it down.

MitziK makes a good point and I think that’s how you need to play it OP - tell the artist it’s as much a safeguarding issue for her as it is for your child.

Is there a court order protecting your child's anonymity? If so, you need to show her a copy. If she still won't move it, point out that you will have no choice but to report her for contempt of court - and be prepared to do it.

As far as I’m aware, once the original post is taken down, all the shared posts will also disappear. I once posted a photo trying to track a witness down and was able to remove all traces of the photo after in this way. This is useful to know once the artists removes her post.

This has chilled me. My son is adopted and we have to be the same as you, no photos on school websites or newsletters, nothing on Social Media, etc. I can understand how worried you must be. Firstly, contact her again and stress that it is a safeguarding issue and that her portfolio isn't going to worth shit if it gets out that she's happy to endanger children. Secondly, contact Facebook (but don't hold your breath). Thirdly, see if your social worker can have a word. If that fails, contact the police for advice. They may suggest they make a phone call advising the person to desist (I had to do this for a non-adoption situation once and it worked like a charm). By the way, judges don't take too kindly to this sort of thing and neither do local authorities if you have to move to keep your child safe and they get hit with the costs (and would quite possibly try and sue her because they can't afford it) so you might want to mention that as well. Good luck OP xxx

I thought they had to have your permission to use the image.
it belongs to your child like a photo I think.

prh is spot on with this stuff.

There is pretty good guidance out there relating to photographs but art seems to be a lot woollier.

I would suggest getting some legal advice, particularly as it relates to a minor and it sounds as if you did not give her explicit permission, in the meantime the following links might help:

therp.co.uk/terms-conditions/

www.dacs.org.uk/home

and

www.indexoncensorship.org/2015/07/art-and-the-law-child-protection/ - Although this is in relation to indecent images in particular, there is advice here that may help, especially the paragraph on "Consider the potential harm to the subjects of the work – consider the age and welfare of any children involved and make sure that the children and parents/guardians have given informed consent in writing and that they have been properly supervised during the making of the work. The younger the child, the more important this factor is. Informed consent means making sure that the children/parents know how the work is to be used and have consented to it being publicly displayed. Be aware that consent does not in itself offer protection against prosecution, but will assist in combination with the other recommended steps. The gallery should obtain and keep copies of these consents. See Appendix II for pro forma consent form."

There is some guidance at assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/481194/c-notice-201401.pdf but this relates to copyright, not the GDPR.

There is also guidance on GDPR at togsinbusiness.com/gdpr-photographers/ - does the artist concerned have a privacy policy on her website? Did the terms and conditions of any contract you signed with her say she could use the image in her marketing?

Good luck!