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Wednesday, April 27, 2005

When "strictly speaking" and "practical reality" collide

On Apr 26, 9:45pm, cgolesch@cgolesch.com wrote:
I visited an exhibition at a well known gallery, which deals with major, world renowned living artists. ... I asked if i could bring my camera. Both the gallery and the artist gave me permission to shoot... The question is: Do I have permission to use the photographs to promote myself, post them on my web site, use them in my portfolio, mail a photo to other prospective artists, or do I need a model or permission release from the artist?


You've described a scenario that's pretty common, but also extremely casual, which means that more is inferred than what people expected or necessarily intended. This doesn't necessarily mean trouble, but it could if the wind changes. What this leads to is a dissonance between two answers to your question. First, there's the "strictly speaking" answer, and then there's "the pragmatic reality" answer. In other words, you're going to have a huge grey area between two extremes. But first, let's establish the ground rules:

Strictly speaking, verbal agreements mean nothing, since if someone says something is ok one day, there is absolutely nothing in place to hold that person to his word, were he to change his mind later on. Verbal agreements are enforceable in only the rarest and most specific of conditions, none of which apply to a context such as this. I believe I've used the expression often enough in my book that you should have it memorized: verbal agreements aren't even worth the paper they're written on (a quote from Samuel Goldwin). So, basically, you really have no solid ground to do anything of "substantial commercial value" with those images without incurring substantial risk.

That's one extreme... But then again, you have no intentions of doing anything of "commercial value" (as you stated it). Which leads to the other end of the spectrum:

Casual uses such as those you described usually don't alarm or concern most people, and here's where your personal risk assessment skills come in. Your question was: are you "allowed" to use those images? That is up to no one but the subject of the photos, so it's based on your trust in his word that it's ok. There is no other "law" that would pre-empt his decision, so "allowed" is an entirely subjective answer: it's up to the artist. Again, the question is "what's the risk?" My feeling on the matter starts with the two extremes noted above, but where the grey area narrows is where you start to get into situations that usually require (or don't require) a model release. For example:

If you were to eventually license one of those pictures to a company for advertising purposes, you'd probably get a call from someone's lawyer sooner or later.

On the other hand, if you were to license the image to a publisher for use in a school textbook discussing artists in the 21st century, you'd be fine, since such uses do not require a release.

The "middle ground" between those two scenarios is where the academic discussion begins, and where things get muddy and SPECULATIVE. I used caps on that to emphasize the notion that you're not technically released because you have nothing written, but not all uses require a release, so it'd depend on the case-by-case circumstances of any given use before one could really say for sure what sort of trouble you could get yourself into. Using the images on your website or in a portfolio is not likely to alarm anyone, and even if it did, there's too little financial incentive to bother doing anything about it. "Technically," this is your call.

Anyone who expresses a confident statement one way or another beyond that is just misinformed. One can certainly express an opinion of "risk assessment," and I could imagine that some photographers could say you're risk is higher or lower, but again, it's entirely speculation on their part based on personal biases towards their risk tolerance. Most photographers are overly paranoid, while others are insanely carefree about such subjects. It's up to you to determine where your comfort zone is... And I promise, this "zone" will adjust over time based on how your business sense evolves. (You don't get more or less conservative--there's no rule here.)

As for your question: using the image in your portfolio and on your website is probably going to be just fine.


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