company using image of my child without my knowledge or consent

[Bessie123]

It seems the photographer who took my daughter's nursery photo last year has sold her picture to a company, who is using her pic to sell stuff. Alternatively, the company has stolen the image and is using it. After getting the evidence, I am going to write and ask where they got the image and write to the photographer asking whether he sold the image and if so, to whom - does anyone have any advice about this situation?

Did you sign anything before or once having DD's photo taken? This can sometimes be in the small print. It is down to who owns the photo I think.

Well, I might have signed something, but it would have been in the context of buying photos, with the implication that I should buy all copies of the picture from the photographer, rather than buying one copy and having it scanned elsewhere. I definitely didn't sign anything until after he had taken the pics and sent them out; if his ownership and right to sell the pic was dependant on my signature, who owned it in the time between him taking it and me signing? I certainly never invisaged that he would be selling my daughter's picture or using it to make money from anyone other than me.

It is usually the photographer who owns the rights to the image, so they can sell it, I understand. I would be v annoyed if this happened to me though. My wedding photographer asked us explicitly if we minded if she used our images at wedding fairs etc. I would particularly expect that for an image of your child taken at Nursery. What are they using it to sell and how did you find out?

If the picture is stored on electronic media I suspect that the data protection act applies here. Speak to www.ico.gov.uk and get their take on it. Sounds just plain wrong to me.

I think the photographer will have retained copyright and is therefore the owner of the photograph. It is pretty much the norm ofr a photo compan to do so and would be in their terms and conditions, which you agree to when having photos taken and buying them.

As to whether thy can then ell on the photo, I am not sure.

Whilst your personal information (and that of your DD) would be covered unde copyright protection I am not sure the photo would be. You would need to check the specific terms and conditions of the photography company.

You might have signed something with a model release in the small print, which allows him to use the photo for anything he likes. Actually, even if you didn't sign a model release then there's a bit of a grey area as he automatically owns the copyright and (on one level) can use the photo for anything he likes -- but there are some things it could be used for that would open up a whole legal can of worms so most companies wouldn't use a photograph for marketing unless the photographer could produce a signed mode release, especially where a minor is involved.

Ask the photographer and say that you are not aware of having signed a model release for this photograph.

Unless you signed something to the contrary, my understanding is that photographers own the copyright to any images that they take and can use them as they choose.

The family of a client of mine learnt this the hard way when friends started phoning up his wife and saying "Oh, my God! I never realised! Why didn't you tell us?" His wife was hugely puzzled. Turns out that a photograph of her and the children was used in a women's magazine to illustrate an article on hidden abuse within the family. The photographer that they had used for a family portrait a year or so before had sold some of the shots to a photo library. They were outraged but unfortunately it was perfectly legal - he had retained copyright over the images.

So check the small print folks when you get photographs taken!

And insist your nursery changes their photographer. I think this is a disgraceful situation.
Def investigate as you should have been made aware the form was a model release so if it didn't say that in large letters across the top, I believe something has gone amiss here.

Grendel if they didnt asterisk that the pics were posed by models then your friend has a case!

grendel that's one of the "some things it could be used for that would open up a whole legal can of worms" cases if your client didn't sign a model release (if he did if for example it was part of the photographer's standard contract that he signed -- then he would indeed be stuffed). If he didn't sign a model release then the photographer does indeed own the copyright but if the photos are used in a way that brings your friend into disrepute then he would probably have legal recourse.

I am very interested in this as well.

A couple of years ago, my daughter ended up in some promotional literature which I did not like. It turned out that I had signed a consent form allowing them to do this. At the time, I had (wrongly) assumed it was to promote the particular nursery she was currently attending at the time and not for the general childcare industry. I let it drop and did not pursue the matter.

However, I am now very careful and I specify how, when, where and what pictures of my children can be used when I sign those consent forms.

As I said, I am very interested in this topic. To the OP, I know how you feel!

I am also interested in the "asterisk that the picture(s) were posed by a model" comment. Do you have further information on this recourse? I will try to do some research as well. My example was not as bad grendel - that's truly a worst case scenerio - but I still did not like the context in which the picture of my daughter was used.

There are three issues here. One is copyright, which unless the photographer has a different deal, is the photographer's. Two is likeness rights - the right of your child to control reproductions of their images. Thirdly is child protection and the digital distribution of images of minors.

The laws are complicated and contradictory on all three areas. However a legal letter to both the company and the photographer should get results. I would seek legal advice preferably free through your work, Which legal or CAB.

I am really appalled that people do this. Aside from the moral issues, it is really unprofessional for a photographer to commercially exploit images taken for other uses.

Thankyou very much for all the advice. I think I will go to the place using my daughter's image tomorrow and ask where they got it from. Then I will know if they stole it from the photographer (apparently, it is a photography shop) or if the photographer is selling it. I am shocked - it seems very unprofessional and unethical of the photographer

I didn't sign a model release form. I would expect there was something in whatever I signed that reinforced the photographer's ownership of the images but like I said before, that was not in the context of selling them on to a third party.

Even if the photographer owns the copyright that fact doesn't trump all your daughter's legal rights.

There may well be an argument that using the photo in this way without your consent is a misuse of your daughter's private information, which you could sue them for, or a breach of the Data Protection Act.

If anyone used your photograph for something embarrassing or discreditable without your permission you could probably sue for libel.

I took my son on a holiday run by a charity last year. We were given specific forms to sign giving permission for photos to be used in their literature and 'model release' was the term they used.

As part of this red tape exercise we had to be paid a nominal 'model fee'in order to make future use of the photos legal. We received a pound each!! But this apparently kept everything right for the charity.

I am in Scotland so rules might be slightly different.

I would be very surprised if the nurseriy's Child Protection Policy does not cover consent for photograhs being used publicly - so under that they should not be inviting in a photographer who retains copyright and uses images without consent.

I would ask the nursery for a copy of their child protection policy wrt to photographs, and a photocopy of any consent forms which you might or might not have signed, and ask the photographer's company for similiar policies, print and consents (or otherwise) shown to you and offered to you for signature.

My orhanisation (which works with young people) would NEVER allow the taking or publication of photos of under 18 yos without written consent. It makes publicity and documentation a nightmare, but there you are - it's important!

I have an update: I asked the nursery for a copy of its agreement with the photographer. It didn't have one (oops).

In the end I went to the shop displaying my daughter's pic (it turned out they were displaying a few pics of her), and said the pic was of my daughter and I had not given permission to use it. The guy was actually pretty good in that he knew he shouldn't have been displaing the pics and he took them down and gave them to me. So problem over.

Excellent! Glad it got sorted out.