Selling Something You Don't Own

If I consent to being photographed while at an event, or for a portrait for a magazine, the photographer can do certain things with that photo, and cannot do other things. What they can do, is license that image, as stock, for editorial purposes only, provided that that editorial use is not libelous. What they cannot do, is license that image containing my likeness for commercial/corporate uses, without my expressed written consent to do so, usually codified in the form of a model release.

Yet, so many photographer I know sell something they do not own, and they could well get sued to within an inch of their lives if they're not careful.

(Continued after the Jump)

If you convey to a client "all rights", inherent in that rights package, under the definition of "all" is, in fact, the right to use that image for advertising and marketing, for corporate and/or commercial clients.

Think I'm kidding? Think again. You do not own the right to exploit someone's likeness for commercial gain without their permission - period. In fact, the legality of even placing images of a subject online - released or not - for the purposes of stock licensing of that image - even for editorial purposes - may be deemed commercial exploitation, and subject to restriction. Carolyn Wright over at Photo Attorney writes about the estate of James Brown, who "...filed suit against Corbis in Illinois claiming that Corbis violated Brown's right of publicity for "commercial use of his image on the Internet" by selling/licensing photos of him." (Legislature May Resolve Issue in James Brown v. Corbis Action - 3/31/08).

When you transfer "all rights" to a client, the least you must do is say "...all rights are conveyed for which no model releases are required, and photographer hereby stipulates that he has not secured model releases from any subjects." While I certainly suggest that clients who are asking for "all rights" don't need "informational kiosk displays in Minsk", that's what you're giving them, and you should work hard to define a clients rights packages by geography "United States Only", by language "English Only", by duration "for a period of 10 years", and by liability, as noted above.

Don't sell what you don't own, and don't kid yourself that you are not going to get sued, that's like playing with fire - you will get burned. IF you still don't believe me, call your insurance agent, and say:

"if I license to my client 'all rights' and then my client uses the photos I gave them for advertising, even though I didn't get a model release, since I licensed to my client 'all rights', do I have any liability?"

When they say 'yes', then you'll know. If they say 'no', then ask them to put that in writing, and ask them if they will, in the event you are sued, be willing to defend you, pro bono, if that advice is found to be faulty. They will then do some more research, and likely come back with the 'yes, you're probably either completely, mostly, or somewhat liable...", and then you'll have your honest answer.

Fair warning folks.
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disclaimer: I am not an attorney. Talk to one about all your legal advice!

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