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  1. #1
    Shy Emma and Eva's Mum's Avatar
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    Photography- A legal Question?

    I have a friend who lives in Edmonton and has a Daycare. She unfortunately used a picture that includes a child that was in her daycare 5 years ago on the Daycare's website. The child is in the background however, the parents claim that she needs to take the picture down. Does anyone here have some sought of advise when it comes to copyrighting?

  2. #2
    Euphoric !
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    I just checked with my son who is a contracts lawyer but has some knowledge of copyright. He sent this...

    "Two year ago, the Canadian copyright laws gave photographers the copyright of their images. So a photo belongs to the photographer not the subject of the photograph or their parents if the subject of the image is a minor. For example, if a family paid a photographer to take a family portrait, or to photograph a wedding, the images still belong to the photographer. Think of it like buying a DVD - you have bought a copy of the movie produced, you may use it for personal viewing but you don't own the actual film itself and you don't have their rights to use that DVD commercially. There are limits on what you can do with the DVD just like their are limits as to what you can do with a photographer's image.

    Photographer = the person who pushed the button and captured the image. It doesn't just relate to a professional photographer.

    To use an image commercially , like this day home provider did, - she used it in advertising/marketing and therefore it's considered commercial use, the rules are a bit different. The subject of the image should have signed a model release form that permits the photographer to use that image in advertising (commercially). In the event that a child is below the age of majority, the parent is meant to sign on the child's behalf.

    If she has such a release already, the fact this family is no longer a client, won't matter. You can't give your permission and then take it away for actions that happened during the time permission had been given. A client who gave permission before can certainly change their mind but that would only relate to images from this date forwards.

    If the child is recognisable, and if the parents had not signed a model release, then yes, they can demand that she takes the image down. They can demand that it's not used commercially , and strictly speaking, they can demand a fee from her for using it.

    Further - inside a privately owned building and on privately owned property, people have the right of privacy. You are not allowed to take a photo of someone in their house, on their boat, on their driveway, in their yard, without permission. You can take a photo of someone, even if they object, if they on out in public though.

    Bottom line - no using images commercially without express written permission of the person in the photo, or their parent if it's a minor.
    No photographing people without their permission on private property, even if the person isn't the owner.
    They can demand the image is taken down and not used. They can't demand that she destroys the image because it's hers (she's the photographer and owns the image and the copyright).

    If you are going to take photos of minor children, get written permission and never use them commercially without covering that child's face. They must no be recognisable.

  3. #3
    Expansive...
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    Thanks Suzie, it is good to know the legal side of things.
    I too would just take it down as the parents have asked for it to be removed.

  4. #4
    Shy Emma and Eva's Mum's Avatar
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    Quote Originally Posted by Suzie_Homemaker View Post
    I just checked with my son who is a contracts lawyer but has some knowledge of copyright. He sent this...

    "Two year ago, the Canadian copyright laws gave photographers the copyright of their images. So a photo belongs to the photographer not the subject of the photograph or their parents if the subject of the image is a minor. For example, if a family paid a photographer to take a family portrait, or to photograph a wedding, the images still belong to the photographer. Think of it like buying a DVD - you have bought a copy of the movie produced, you may use it for personal viewing but you don't own the actual film itself and you don't have their rights to use that DVD commercially. There are limits on what you can do with the DVD just like their are limits as to what you can do with a photographer's image.

    Photographer = the person who pushed the button and captured the image. It doesn't just relate to a professional photographer.

    To use an image commercially , like this day home provider did, - she used it in advertising/marketing and therefore it's considered commercial use, the rules are a bit different. The subject of the image should have signed a model release form that permits the photographer to use that image in advertising (commercially). In the event that a child is below the age of majority, the parent is meant to sign on the child's behalf.

    If she has such a release already, the fact this family is no longer a client, won't matter. You can't give your permission and then take it away for actions that happened during the time permission had been given. A client who gave permission before can certainly change their mind but that would only relate to images from this date forwards.

    If the child is recognisable, and if the parents had not signed a model release, then yes, they can demand that she takes the image down. They can demand that it's not used commercially , and strictly speaking, they can demand a fee from her for using it.

    Further - inside a privately owned building and on privately owned property, people have the right of privacy. You are not allowed to take a photo of someone in their house, on their boat, on their driveway, in their yard, without permission. You can take a photo of someone, even if they object, if they on out in public though.

    Bottom line - no using images commercially without express written permission of the person in the photo, or their parent if it's a minor.
    No photographing people without their permission on private property, even if the person isn't the owner.
    They can demand the image is taken down and not used. They can't demand that she destroys the image because it's hers (she's the photographer and owns the image and the copyright).

    If you are going to take photos of minor children, get written permission and never use them commercially without covering that child's face. They must no be recognisable.
    May i add that the photo was taken in public during a summer party so all the children were in the care of their respective parents. I will agree with a lot of what your son has to say about this matter.
    I do not know if this applies to Canada as well, but my friend is talking about getting a Creative Commons license https://www.1and1.co.uk/digitalguide...yright-online/ because just like it says in the article- once you obtained content under this CC license, it cannot be withdrawn!
    I guess she doesn't want to take the picture down because she wants to go the legal way...in the sense that if such a situation were to happen again, this time round..she would be legally better prepared

  5. #5
    Euphoric !
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    My son is actually here at moment as he spend night - we all went supper for family event. I going get him reply...

    ---------------------------------------------------

    A creative commons license is not going to give you what you think it will.

    First - the very basics of Copyright : Any body of visual art work (sculpture, musical composition, painting, photograph) belongs to the creator of that work. In creating their art, they own it. Copyright laws are about protecting that body of work from unauthorised use/duplication, because the copyright owner has a right to expect to be paid for their work. Reproducing the piece of art, without the copyright owners permission is illegal and can be subject to you being taken to court and forced to pay for the unauthorised use you have effectively stolen.

    Due to this, a photograph belongs to the person who took the photo. The photographer automatically owns that image and unauthorised use of the image by a third party, opens them up to paying for the use they took.

    Now Commerical Commons License is the copyright owner's permission that someone else may use their work (within the boundaries of the license) without having to arrange permission directly from the copyright owner to do so. A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted work. A CC license is used when an author wants to give people the right to share, use, and build upon a work that they have created. CC provides an author flexibility (for example, they might choose to allow only non-commercial uses of his/her own work) and protects the people who use or redistribute an author's work from concerns of copyright infringement as long as they abide by the conditions that are specified in the license by which the author distributes the work.

    With that explained, you can see that a CC license is not a means to use a photograph in a Commercial manner but a means to let other people know they can use your photograph within certain boundaries. Getting a CC license does not affect existing photographs such as the one in question here but more so, it would not have any effect on your rights as a photographer (or your responsibilities) for a photo which already exists.

    So to clarify - the photographer owns the copyright to an image. A CC license is advance permission to other people to use the image within boundaries without breaching that copyright.

    Having a CC license is entirely unrelated to the situation being discussed.

    Now, although a photographer owns the copyright to an image, that does not give them the right to use it as they wish. It does give them the right to own the image and keep the image for their own personal satisfaction but should they decide to share the image with others, then other factors come in to play.

    One of the big factors that is considered when an image is shared, printed, published, is how that particular image affects other people. The subject of the image (the person in it, the property in it, the land shown) has to be considered too. There are two elements to consider when an image is shared. Firstly is it just shared for pleasure where the owner of the photograph is not gaining or is it being shared to promote a business, or service, where there is potentially gain from the image being used? That gain does not have to be monetary but can just be promotional.

    Using an image, even if you are the copyright owner, has implications. Just sharing it, publishing it, or increasing the audience/people who see it, where you are not necessarily gaining from doing so, is more straightforward. It merely requires consideration of the rights of others to privacy. It is normally fairly simple to assess if publication of a photograph infringes on the privacy of other people. We look at very simple aspects to determine if this is the case. Is there a person, adult or minor, in the image? If so, was the photograph taken in a public place where the person can be seen doing whatever they are doing in the image by the general public. Walking down a public street would be viewed as not having an expectation of privacy. Sitting, sleeping, walking, doing anything on private property is viewed as having an expectation of privacy and having that action witnessed by only those who are also at that private location at the same time. This is why, when an image is taken inside a building, or vehicle, or if they are on privately owned property, you need their permission to take the image and they are within their rights to demand the image is deleted if you take it without their permission.
    But using an image even if you are the copyright owner, in a Commercial manner, has much bigger implications. Commercial use of an image, trumps everything else. So what is considered Commercial use? It relates to anything where potentially someone gains from the image. Marketing, advertising, selling the image, are all actions where the image is being used for gain. In terms of marketing or advertising, the image is intended to show the environment of the service being offered and it's promoting the business as having a nice environment, or a clean environment, or the program content. Even though the gain from publishing the image to a wider audience might not be directly monetary, like it would be if you sold the photo, there is still a gain in using it to promote your day home because you are hoping to attract new clients into your business. The same applies to a hotel showing people enjoying the on site facilities, or a spa showing people participating in the services offered.
    Due to this commercial gain from the image, the legal view is that everyone who contributed to the making of the image should be compensated for their part. It would be grossly unfair for only one party to gain from the image while everyone else got nothing. Your friend is gaining the promotional aspect from the image she is using for advertising her business. And therefore, the subject of the image (in this case on of her daycare children who is in the photo) has the right to expect to gain equally too. This is why, for most marketing material, companies use models who are both compensated financially for their time but who also sign over a model release stating that the fee they received is full settlement of their part of the transaction and that they have no further claims on the image's profitability or they have an agreement with the model that they may use the image themselves for their portfolio and therefore the model also gains promotionally. Think about a photo shoot where a model is promoting a grocery store as an example. Should that company then blow up the image and have it in every single store, they do not want the model to step forward and make a claim that her/his face is earning more money than they ever realized and demand a bigger payment. So the terms of who benefit's from the image and in what way must be established up front to avoid future claims of one side gaining more than the other.
    The big issue your friend has is that she is using an image to which she admittedly owns the copyright and therefore owns, but she's using it in a Commercial manner. She is gaining from using an image and the client whose child is in the photo, has not been compensated for their contribution and has not given permission for the image to be used in this manner.
    She cannot, under any circumstances, use someone else's image Commercially, without having their express, written, permission at the time the image was taken. Period. In the event that the subject of the image is a minor, then permission must be sought from the parents or guardians. It does not matter if that image was taken in her home, on her property, out in public where there's no reasonable expectation of privacy, whether the parents knew, whether they didn't know - the second she used the image for her business, she is gaining from it's use and the subject of the photograph gains nothing other than privacy invasion. This image, that the parents have asked to be removed, must be removed. There's no way around that. And strictly speaking, these parents do have the ability to pursue her legally for their share in the gain your friend has had from using their child's image in a promotional manner (although it's a very expensive and lengthy legal process to prove the monetary value of the gain).

    Essentially, if your friend wishes to use photographs to show her dayhome, the space, the activities under taken, that is Commercial use. Should any of those photographs show a minor child who is not her own, then she needs to have the appropriate permissions (in writing) before she presses that shutter and captures the image.

    I would strongly suggest that the promotional images any provider uses, do not show the children. You can photograph your space, the completed crafts, the meals you provide without having the children in the image. If you absolutely must use an image that has the children, then you must blur out their face or hide their identity (you can photograph them from behind so their faces are not shown) but a parent who requests you remove the image, is within their rights to do so. I would also strongly suggest that you have a release form as part of your contract to avoid this going forward although it is far better to avoid this situation entirely by not having the children in your photographs.
    Last edited by Suzie_Homemaker; 07-25-2017 at 08:10 AM.

  6. #6
    Expansive... BlueRose's Avatar
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    Quote Originally Posted by Emma and Eva's Mum View Post
    May i add that the photo was taken in public during a summer party so all the children were in the care of their respective parents. I will agree with a lot of what your son has to say about this matter.
    I do not know if this applies to Canada as well, but my friend is talking about getting a Creative Commons license https://www.1and1.co.uk/digitalguide...yright-online/ because just like it says in the article- once you obtained content under this CC license, it cannot be withdrawn!
    I guess she doesn't want to take the picture down because she wants to go the legal way...in the sense that if such a situation were to happen again, this time round..she would be legally better prepared
    Your friend needs to get off her "high horse" and remove the photo. She can re-post it once she has covered up the child's face. Just because she took the photo doesn't mean she can use it in the manner she is using it. I am sure there are many other photos she can use instead.

    She need to be respectful and professional. Right now she isn't either.

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