An Attempt to Stop me Selling Photos

[Analog6]

Some people have very infated ideas of their own importance and no idea of the law. I received the email below, it concerns images I took of a performance in a public car park at Kingscliff during a public event, open to all. And anyway, they've been up there 2 years and no one's been interested enough to buy one, but I'm not telling him that!


Hi Odille ,

Just a reminder that you do not have my approval to sell any images of the Samba-Blisstas !
It is a breach and would appreciate you remove the images from the site !

Cheers
Paul Barrett

Paul Barrett
Musical Director / Founder
The Samba Blisstas and The Carnaval Drumming Project .
Mobile: <phone # redacted>
www.carnavaldrumming.com <http://www.carnavaldrumming.com/>


I sent this back to him:


Dear Mr barrett

These images were taken by me at a public performance in a public car park at Kingscliff, and I am sorry but under Australian copyright laws I have every right to sell them. I am breaching no laws.

I have put a link to your page which I do not have to do, if you continue to harass me I shall remove it and leave an advice to people NOT to consider joining an organisation run by a control freak.

Yours sincerely,
Without prejudice

Odille Esmonde-Morgan
Photography by Odille
<address redacted>
Terranora NSW Australia

Shop: http://analog6.redbubble.com
Website: http://photographybyodille.photomerchant.net/
Blog: http://odillesphotos.wordpress.com/
Calendars: http://www.redbubble.com/people/analog6/shop/calendars






Blog: http://odillesphotos.wordpress.com/
Calendars: http://www.redbubble.com/people/analog6/shop/calendars

[OzzieTraveller]

G'day A6

Good on yer Odille
So long as you are 100% sure of things - I agree with you

ps- I would suggest you edit your post to remove your address - this is a public site & "ya neva know..."
Regards, Phil

[I @ M]

I assume that you have your facts correct Odille and that there was no rental agreement in place between said drummers and the owner of the car park.

If the event organisers have entered into an agreement with the carpark owners and included a "no commercial photography" clause into that agreement then they may well be correct in what they say.

Such a rental agreement does not even have to involve an exchange of money between the event organisers and the owners of the land or between the event organisers and the general public.

[Kym]

Even if there was some rental agreement, the public would still need a 'contract' with T&Cs i.e. a ticket.
So without any contract with the public he has no grounds.

Edit: Apparently if they put up a sign on the boundary that say no photography then they may have grounds.
But that is up to a lawyer to sort out, esp. if its a free public event.

[Duane Pipe]

G'day A6

Good on yer Odille
So long as you are 100% sure of things - I agree with you

ps- I would suggest you edit your post to remove your address - this is a public site & "ya neva know..."
Regards, Phil

Here we come:lol:

[Analog6]

Thanks for the replies. It was Tweed Shire Council's public street carpark and there were no signs whatsoever. I think he is just using scare tactics that have worked before. the event was the kingscliff triathlon, I was an appointed photographer, and the organisers told mne afterwards they had never heard of the Samba Blisstas and did not know they were going to come and perform.

Here's the latest charming missives - courtesy seems to be his short suit. Do you know, if he'd asked nicely and without the rudeness and the 'YOU MUST' wording, I would probably have taken for sale off them without a problem - but I object to someone being rude, arrogant and ignorant into the bargain.

No!:

Hay Odille ,

You legally have no right what so ever to sell images of the Samba-Blisstas without an official Release order from me personally !
You have taken an image of a concept that is a business run and Founded by myself !
Do your research before you abuse another Artist !

Photographers like yourself i have hounded for years !

I have every right to protect my ownership of my Art !
It is not yours to sell , how arrogant of you ,
Please do not respond , call me what you like >
Your the one who has Breached a fundamental Law !
If the images are still there , i will continue to follow this up !

You need to look into Australian Copyright laws , anyway if you think that is ok ........Something fundamentally wrong with you !

Piss off !

Please do not respond >


No. 2:
Please remove any images you may have of the Samba-Blisstas ,if for sale , it is illegal , and you are breaching an act that you should already be aware of !
Yes you are free to take shots of us in a public space , to go on a blatantly sell those images is wrong and offensive to the Artist that owns the rights to the Visual Concept of the Samba-Blisstas !
Nothing to do with being a Control freak , !

How daft you must be !

will see you on the streets one day !



Paul Barrett
Musical Director
Samba Blisstas and Carnaval Drumming
Mobile: <phone # redacted>
www.carnavaldrumming.com

'Visual concept' I beleive applies to works such as sculpture etc, I cannot see it applying to performances. It is not as if I want to set up a rival group.

[Dylan & Marianne]

I guess it's a question of how far you want to take this on principle
You may be right but if it's going to cause you a lot of grief to keep the photographs up on your site (ie.he actually tries to take legal action whether it be right or not), then I'd personally just yield
but then again, I'm a softy :P

[ricktas]

I would be careful how far you push this Odille. Yes you can take the photos, but selling them for commercial gain, without model releases from the subjects could see you in hot water. I would certainly agree that you need to stand your ground, but if he has done this before and is willing to call in the lawyers, are you willing to pay a lawyer to go to court for you, and risk losing based on not having model releases? I would not want to be arguing with the dogs on court over this one.

[Analog6]

I actually have taken the one photo I had up on RB down and he has not even noticed, I decided that as I'd included their website on the actual photo in the frame, it was advertising them and I didn't want to to that.

[Steve Axford]

I suspect that you are right Odille. I think the law says that you are ok to sell the photos but not to use them to advertise something. Still, it may have been diplomatic to ask. I know a few people who have shots of Samba Blisstas at the Lismore Lantern Parade, but they have permission to use the photos.
Of course it is all moot if you are only likely to make a few dollars selling them.

[Warus]

From the second email is seems he thinks you are in the right anyway and it's a moral objection not a legal one. I would probably have a chat to the police about the threat he has implied on the last line just in case.

[Rattus79]

Yes, I believe that Channel 9 would be very interested in this case of "Cyber Bullying" :)

[agb]

This might be enlightening on the matter. My bold by the way. Quote taken from :

http://www.artslaw.com.au/info-sheets/info-sheet/street-photographers-rights/

"You may be infringing copyright if you photograph the whole or a substantial part of a literary, musical, dramatic or artistic work, if the work is still protected by copyright. For further information on copyright, see the Australian Copyright Council information sheets at www.copyright.org.au.

Photographers are often concerned about taking photographs of trade marks, for example taking a shot of a streetscape that contains advertising or company logos on the side of buildings. A registered trade mark owner has exclusive rights to use the trade mark and to authorise use of the trade mark in relation to goods/services for which the trade mark is registered. Taking a photograph of a trade mark should not involve trade mark use and is not trade mark infringement. Also consider that there may be copyright subsisting in the trade mark if it is a logo containing an artistic work."

[Eberbachl]

I'm by no means an expert, but I always thought that in a public place you're able to take the photos, but if you intend to sell them commercially you require a model release.

I might well be wrong, but if I were in this position I'd certainly take the time to clarify it here: http://www.copyright.org.au/

You can then point him in the right direction by sending him off to read the appropriate information directly from the Australian Copyright Council.

Here's a direct link to the ACC's Photographers and Copyright Information Sheet.

http://www.copyright.org.au/admin/cms-acc1/_images/16977409264f4571d7840aa.pdf

A small excerpt from that information sheet:


In other cases, photographers may take more casual shots, for example, photos of people in the
street or at markets, or playing sports. If you know that you might later be using such a photo
commercially, itʼs generally a good idea to get a model release from the people you have
photographed. If itʼs impractical to get the people in your shots to sign model releases, or if they
refuse to do so, your ability to use or license the use of the photo in certain ways might be limited
because of the laws discussed above.

[arthurking83]

Reply just for the hell of it, so as to not allow him the 'last word", which it seems is all he wants.

Whether he reads it or not, is not the point, but don't allow him to finish on his terms.

Reply, with an extremely impolite tone, asking for him to point out to you the relevant copyright legislation he's supposedly referring too.
And while you're there, it may be a good idea to mention that his previous response has now been filed as a complaint to the police considering the threatening remarks made.
And that if he has any subsequent contact from the police in the future with respect to this matter, that he is aware of why.

See if he replies to your reply then!! ;)


ps. Odille.. for someone who can't even use correct grammar, I suspect that this Paul Barrett fella won't really have a firm grip of the correct interpretation of the law.


Your the one who has Breached a fundamental Law !

his words!!

really ?? your the one .. and not You're the one .... :rolleyes:
(unless I've missed some point in this exchange and that you have a 'the one' and that it's relevant to the topic!! :p)

I believe that if one is going to attempt to make shallow threats with little substance, as a minimum requirement they have an understanding of the English language.

[Steve Axford]

er - why create a fight when you don't need to???? Try to calm the issue down, not throw fuel on it. Nobody is going to make enough money out of this to pay lawyers.

[Xebadir]

Personally I would stand up against this on principle - but I tend to be a bit of a troublemaker and not someone who is willing to just duck when someone is trying to bully me - I'd force him to go legal and then when he found he was legally screwed get the judge to enforce costs. I would phrase something like this:

Sir,
Your email correspondence has been stored as a record of your attempts to threaten and blackmail me, which will be forwarded to the police if you do not cease and desist from this course. Quite frankly, I find it impossible to read your emails due to the atrocious grammar that would lead a school-child to despair. I would suggest in future that you be more polite in your requests for photos to be removed from sites. Actually according to relevant copyright law I can display those images with no prejudice of any ownership of your art (the connection to protected artistic display is tenuous at best), and there is absolutely nothing that can be done to prevent this. The only proviso to this is such that I do not derive commercial gain without authorisation (which is obvious given your art and the image is worth absolutely nothing commercially to me or anyone else. These images have not been sold). I was acting in an official capacity photographing a public event and completely authorised to shoot any and all activities associated with this event. As you have no legal contract that prevents the photography of your display then I regret to inform you that I can take and display as many pictures as I like, as your "art" is not protected by the relevant copyright law as it is non-distinctive from any similar performance in the media format that I have displayed. This is not to mention that you were merely a side act to the triathalon and far from being the feature act. Any future correspondence or threats on your part will be stored for legal purposes and passed on to the relevant authorities.

Regards
...

I would note that if you want to duck out of the fire that you should probably not send anything of the like ;). <The following is my opinion not legal advice> But as far as I can interpret he could try and bring a case and would get near instantaneously dismissed by a judge as wasting the courts time. Basically all you would need to show if it came to that was that:
- There exists similar performance styles etc. etc.
- That you have not derived commercial gain from relevant images.
- That you have not set up a competing business to his.
- That the display was public and not enforced by any contract.
Even then the protection of his art (which is not visual art and therefore I believe not protected by the copyright act anyway) is tenuous at best as its a performance (and realistically all you are showing is a still).

I still can't believe how horribly he writes and naive he is.

[davsv1]

Whats the point in people here making suggestions to inflame the situation.

[Sifor]

While I may be a law student, I'm not a lawyer, so this isn't legal advice (indeed I've only just read the links provided, haven't thought much about copyright and photography). However, the above replies seems to accurately depict the common law stance on copyright and photography. Providing you're not deriving any commercial benefit from using the images (ie you're not selling them) then that's generally fine. If you want to sell them then without a release you might run into some problems (you may still be able to sell them without a release, but really, is it worth the hassle?)

I'd probably try and be civil rather than baiting him. He might be bit of a tool but you don't need to join him :cool:

Perhaps email that arts law mob and ask them (perhaps "donate" to them and ask a question). I haven't researched nor dealt with these kinds of issues to be any help.. nor do I want any liability :)

[geoffsta]

I think Sifor may have a point? :umm: So I think I'll keep my opinions to myself. But in saying that.... I just had a look at their website. And I think they really need a decent photographer anyway. They should be paying you for advertising their product. :gl:

[William]

I'm not saying anything either Geoff, I was tempted to email or phone him to tell him what a person he is and to get a life ;) I did'nt and wont , I dont trust the idiot

[Mark L]

Well, if Samba Blisstas ever come to Mudgee, I'll not be going to see them. And if there's any way I can think of to stop others, I'll try.
FWIW I'd not continue to make the photos a saleable item, though I would definitely continue to display them.
Good luck Odille.

[ricktas]

You could always turn them into grafitti art, and superimpose his emails with you over the top of the photos and leave them on display. Call them "Carnival of Drumming, the threatening voice"....

[fess67]

Well I have read this and I am pretty saddened by the whole thing. Not many people covering themselves in glory here.

Odille, have a look at your initial response to him. Do you really think that calling him a control freak was the most appropriate respond?

His response back was more intense than I would have expected but given your comment I can maybe see why he fired, especially given the grey area of copyright law.

There are a few on here that are promoting a more comtrolled appraoch, I agree with that approach, it is much better than slinging insults.

[MarkChap]

I actually have taken the one photo I had up on RB down and he has not even noticed, I decided that as I'd included their website on the actual photo in the frame, it was advertising them and I didn't want to to that.


......, they've been up there 2 years and no one's been interested enough to buy one, but I'm not telling him that!


Is all this really over just one photo ?? That you haven't sold a single copy of in the 2 years that is has been offered for sale ??

[kiwi]

Just for clarity, commercial gain is different than commercial use

You are quite entitled to sell your artwork without a model release

You can't sell 1000s as postcards or advertise your business using those images as that's commercial use

[Boo53]

You could always turn them into grafitti art, and superimpose his emails with you over the top of the photos and leave them on display. Call them "Carnival of Drumming, the threatening voice"....

Now that's a great idea Rick.

:lol:

[Xebadir]

Fair point there Kiwi, this page is always worth a read for a quick run down on your rights (i've linked the commerical use section, but the whole thing is worthwhile):
http://4020.net/words/photorights.php#commuse

I think of particular reference here:

Some organisers try to restrict performance photography due to "copyright reasons". This is a misunderstanding of IP law, for you cannot infringe the copyright of a "dramatic work" by merely taking still photographs (see discussion below). You have to take extensive video footage of a substantial part of the performance for infringement to occur (see the "Choreography G072" information sheet on the ACC publications webpage.) This is incredibly unlikely if daddy only wants a couple of shots of Tiffany's solo!

[arthurking83]

So as far as I can read it, the laws haven't really changed all that much in the years since first reading this article.

Hence from what I understand of Odille's dilemma, she has every right to place here images for sale, requiring no model release, as there doesn't appear to be any commercial use of the images
(as explained so far by Odille).

This Paul Barett clown needs to be made aware of his ignorant claims, and done so in a rightful and positive manner.
If that requires a slightly more aggressive attitude to counter his very aggressive attitude, then so be it(and rightfully so).

As already said, I'd also involve the police into the matter, if only as a formal complaint for now, with his remark about seeing Odille on the street one day!!

[bricat]

At this stage it is not costing you anything so stand up for your rights. If on the other hand a court case comes about (highly unlikely bought about by a bullie) you can re-assess your commitment to the "fight". Reply to his email with some facts about copyright/infringement and photogtaphers rights keeping your comments to the point only. I should also point out that it appears he has attached himself to the "race" so as to gain some commercial advantage. Without doubt you can bit him with facts and being right. All the best cheers Brian:)

[Kym]

I'm by no means an expert, but I always thought that in a public place you're able to take the photos, but if you intend to sell them commercially you require a model release.

The key here is what commercial means in terms of the © act.
As I understand it, the meaning is using an image to promote a product or service, not to just sell images.
Eg. I take your photo and place your face in an advert promoting a product.

[SirLozalot]

I cannot comment on legal side as I am ignorant of fine print of copyright law but I can comment on personal side of dealing with people like him. Whilst I totally understand your desire to stand up to his bullying on principle, the fact is you are not making money on the photo and sounds like you are having a lot of angst. I have found that one of life lessons is to pick your fights. There is little reward for you in this fight. He sounds like a bas***d and not worth your time and effort. My suggestion is that you just let him go. Don't let him ruin your day.

[Lance B]

will see you on the streets one day !
.

Hmm, this could be construed as a threat. Maybe the police need to be advised.

[reaction]

This is horrible to read. I would not offer the pics for sale but would continue to display them. It is a good idea to inform the authorities, and I would continue to email him in a polite and civil way asking for him to back his claims. Nothing inflames a redneck more than someone not reacting to his barbs. At this stage there's no cost to you, it is entirely reasonable that you don't submit to a takedown without sufficient proof. If he employs a lawyer to provide said proof and the lawyer is able to do so, then fine.

If anything, hopefully this thread will appear in any searches of Samba Blisstas, and we can guess what will happen when the Samba Blisstas and The Carnaval Drumming Project try to contract a photographer at their next gig. They may find the prices and contracts not to their liking?

[Kym]

Thanks for the replies. It was Tweed Shire Council's public street carpark and there were no signs whatsoever. I think he is just using scare tactics that have worked before. the event was the kingscliff triathlon, I was an appointed photographer, and the organisers told me afterwards they had never heard of the Samba Blisstas and did not know they were going to come and perform.

Just picked up on this. As you were 'official' and they just rolled up - you win! Pretty simple I think.

[Analog6]

I never heard anything back from this yokel. Such a pity, on the day the mood was upbeat and happy, the performers, particularly the leader of the group, deliberately made eye contact with the camera, it was all so cheerful and everyone said how great they were.

I was so sorry when this control freak spoilt it all. I just removed all images, I don't want to give them any free publicity, and I sure didn't need the angst. I note they charge people large fees to learn drumming and be a participant, so I guess it's all just about money for this guy.

[DonUnder]

I always thought "commercial use" referred to using the image to in promotion of/association to a particular commercial entity (ie advertising a product) and not simply selling of images for personal gain.