I was merely responding to your earlier post.
But tell you what? I'll just say you're absolutely right to make you happy. Then you can post one more time so you can get the final word in and we can all get on with our lives.
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I was merely responding to your earlier post.
But tell you what? I'll just say you're absolutely right to make you happy. Then you can post one more time so you can get the final word in and we can all get on with our lives.
It makes me very sad when I'm not invited to the party ................. so I'm going to invite myself
If the OP agreed orally to take those pictures with the idea that they would be used in connection with potential clients going to a website and seeing what the band looks like, then you’ve given the owner of the photograph an express license. Oral licenses can be every bit as binding as a written license. It’s just that they are harder prove (hence, why it’s good to get things in writing, usually). And it isn’t something you can simply revoke because you’re no longer in the band.
Even if you didn’t give express oral permission, the facts and circumstances that you describe would, at a minimum, almost certainly create what’s called an implied license (Implied license - Wikipedia). Again, not as good as written permission (or express oral permission), but more than enough to withstand legal scrutiny. Therefore, from a straight copyright analysis, I think it’s near impossible to show infringement at the legal standard necessary to win in court (without getting into the debate of whether it makes sense to go to court).
However, as has been mentioned, there are other rights in play here unrelated to copyright and those may actually be useful to the OP, as we’ll see in a minute. For purposes of my discussion, I’m going to focus on a violation that’s called commercial misappropriation. As also previously mentioned, commercial misappropriation is defined by state law and, therefore, varies from state to state. I’m going to use California’s law in this area because that state is very friendly toward artist/celebrity rights (i.e., because of the high volume of artists and celebrities that reside in the state). Here is California Civil Code Section 3344:
“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent … shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages….. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.”
OK, let’s break this down:
1. Clearly, the person showing the picture is using the likeness for purposes of advertising or soliciting the purchase of a product (the band) or services (the band).
2. Was this use done with the person’s “prior consent”? I would say no. There is no written permission here and even if there was express permission, it would still amount to he said/he said. Therefore, we go back to my comments regarding an implied license. The good news for the OP is that the extent of the implied license would be limited to the intent of the party who is granting the license. I think it’s reasonable to assume that the intent of any band member in these circumstances would be that their photograph not be used forever in connection with a band they are no longer working in. I realize there might be some debate here, but I feel pretty good about my position and, if I dont take that position, then there's nothing more to write.
Accordingly, I’m going to proceed as if there was a violation of the statute. In that case, we have the following remedies:
1. Damages sustained by the person or persons injured as a result of the violation. Based on the OP's facts, I wouldn’t count on paying a cable bill with this money.
2. $750 or the actual damages suffered by him or her as a result of the unauthorized use. Well, at least you can pay your cable bill with this money.
3. Any profits from the unauthorized use that are attributable to the use. I’m open to hearing why the OP thinks the current band profits are attributable to the picture, but I’m not holding my breath for that analysis
4. Punitive damages may also be awarded to the injured party or parties. Since the idea of “Punitive” damages is to send a message rather than simply address actual damages, I guess it’s possible the court could use this opportunity to send a strong message to all bands that there will be serious financial consequences for using band photos that include people who are no longer members.
Finally, that statute provides the following: “The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.” Part of the reason this language exists is because of the issue that was raised repeatedly about there being no damages. If there are no damages, then there is usually little to be worried about. However, the prospect of having to pay the other side’s legal bills significantly alters that sense of calm. In fact, I have actually seen attorneys who use this language to generate fees. That is, they believe a violation of a statute is clear and they were certain the other side had the financial wherewithal to pay legal fees. Therefore, in theory, the OP might actually be able to find a lawyer to take this on if the lawyer felt chasing fees was warranted here (which seems unlikely). But, in theory ….
So what the hell does all of this have to do with solving the OP’s problem?
Under the DMCA (Digital Millennium Copyright Act - Wikipedia) there is something called Notice and Take Down Notice and take down - Wikipedia. The short story is that you notify the service provider (i.e., the person hosting the website) there is illegal content being hosted on their server. In this case, it would be a photograph being used for illegal purposes. Once the service provider is aware, they have a duty to take down the offending webpage. After that, there is a process where the website owner either agrees to remove the offending material or has to prove why they have the right to display the content in question.
In fact, a major label artist client once had their single release totally F’d up by someone filing a notice and take down claim which caused the service provider to pull the client’s website on the day of the release which meant all the fans got a message saying the website was shut down because of infringing material. To say people were flipping out was an understatement. Even with back channel access to key executives at the service provider (including their legal department), it took a minute to correct this. As it turned out, the filing was erroneous for many reasons, but the person filing the notice had no money so not much we could do to make them “pay.”
It will take some work to get up to speed on the process and the filing requirements, but it is something that an individual can do without a lawyer and can be very effective, if successful, at getting someone’s attention to fix the problem.
MA
If the OP agreed orally to take those pictures with the idea that they would be used in connection with potential clients going to a website and seeing what the band looks like, then you’ve given the owner of the photograph an express license. Oral licenses can be every bit as binding as a written license. It’s just that they are harder prove (hence, why it’s good to get things in writing, usually). And it isn’t something you can simply revoke because you’re no longer in the band.
Even if you didn’t give express oral permission, the facts and circumstances that you describe would, at a minimum, almost certainly create what’s called an implied license (Implied license - Wikipedia). Again, not as good as written permission (or express oral permission), but more than enough to withstand legal scrutiny. Therefore, from a straight copyright analysis, I think it’s near impossible to show infringement at the legal standard necessary to win in court (without getting into the debate of whether it makes sense to go to court).
However, as has been mentioned, there are other rights in play here unrelated to copyright and those may actually be useful to the OP, as we’ll see in a minute. For purposes of my discussion, I’m going to focus on a violation that’s called commercial misappropriation. As also previously mentioned, commercial misappropriation is defined by state law and, therefore, varies from state to state. I’m going to use California’s law in this area because that state is very friendly toward artist/celebrity rights (i.e., because of the high volume of artists and celebrities that reside in the state). Here is California Civil Code Section 3344:
“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent … shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages….. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.”
OK, let’s break this down:
1. Clearly, the person showing the picture is using the likeness for purposes of advertising or soliciting the purchase of a product (the band) or services (the band).
2. Was this use done with the person’s “prior consent”? I would say no. There is no written permission here and even if there was express permission, it would still amount to he said/he said. Therefore, we go back to my comments regarding an implied license. The good news for the OP is that the extent of the implied license would be limited to the intent of the party who is granting the license. I think it’s reasonable to assume that the intent of any band member in these circumstances would be that their photograph not be used forever in connection with a band they are no longer working in. I realize there might be some debate here, but I feel pretty good about my position and, if I dont take that position, then there's nothing more to write.
Accordingly, I’m going to proceed as if there was a violation of the statute. In that case, we have the following remedies:
1. Damages sustained by the person or persons injured as a result of the violation. Based on the OP's facts, I wouldn’t count on paying a cable bill with this money.
2. $750 or the actual damages suffered by him or her as a result of the unauthorized use. Well, at least you can pay your cable bill with this money.
3. Any profits from the unauthorized use that are attributable to the use. I’m open to hearing why the OP thinks the current band profits are attributable to the picture, but I’m not holding my breath for that analysis
4. Punitive damages may also be awarded to the injured party or parties. Since the idea of “Punitive” damages is to send a message rather than simply address actual damages, I guess it’s possible the court could use this opportunity to send a strong message to all bands that there will be serious financial consequences for using band photos that include people who are no longer members.
Finally, that statute provides the following: “The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.” Part of the reason this language exists is because of the issue that was raised repeatedly about there being no damages. If there are no damages, then there is usually little to be worried about. However, the prospect of having to pay the other side’s legal bills significantly alters that sense of calm. In fact, I have actually seen attorneys who use this language to generate fees. That is, they believe a violation of a statute is clear and they were certain the other side had the financial wherewithal to pay legal fees. Therefore, in theory, the OP might actually be able to find a lawyer to take this on if the lawyer felt chasing fees was warranted here (which seems unlikely). But, in theory ….
So what the hell does all of this have to do with solving the OP’s problem?
Under the DMCA (Digital Millennium Copyright Act - Wikipedia) there is something called Notice and Take Down Notice and take down - Wikipedia. The short story is that you notify the service provider (i.e., the person hosting the website) there is illegal content being hosted on their server. In this case, it would be a photograph being used for illegal purposes. Once the service provider is aware, they have a duty to take down the offending webpage. After that, there is a process where the website owner either agrees to remove the offending material or has to prove why they have the right to display the content in question.
In fact, a major label artist client once had their single release totally F’d up by someone filing a notice and take down claim which caused the service provider to pull the client’s website on the day of the release which meant all the fans got a message saying the website was shut down because of infringing material. To say people were flipping out was an understatement. Even with back channel access to key executives at the service provider (including their legal department), it took a minute to correct this. As it turned out, the filing was erroneous for many reasons, but the person filing the notice had no money so not much we could do to make them “pay.”
It will take some work to get up to speed on the process and the filing requirements, but it is something that an individual can do without a lawyer and can be very effective, if successful, at getting someone’s attention to fix the problem.
MA
Yowser. MA to the rescue when nobody realised there was a snowball's chance anything legal could be done so never sent up the MA @Music Attorney flare!
Thanks everyone for a great discussion. I may have actually learned a thing or two.
I never said anything about suing anyone. I just originally said that I would politely ask the band to not use those pictures for advertising future gigs. If they refuse then I am up "you-know-what" creek without a manual propelling device.
I might have my associates, in the health insurance business, pay the band a little social call and explain to them if the band keeps using my photos there might be an accident involving a third story window. ;-)
I never said anything about suing anyone. I just originally said that I would politely ask the band to not use those pictures for advertising future gigs. If they refuse then I am up "you-know-what" creek without a manual propelling device.
I might have my associates, in the health insurance business, pay the band a little social call and explain to them if the band keeps using my photos there might be an accident involving a third story window. ;-)
I was canoeing a backwater creek, years ago, here in Oregon, and crossed wakes with a couple of farmer-types paddling with a shovel... Just saying; on that particular creek you referenced, such a manual propulsion device might seem appropriate.
Yes and as I said in one of the other threads on this similar issue. I did a search on my own name out of curiosity.
Turns out I an active member of 7 different band. (I actual only play in 1 full time). Most bands don't update their websites or delete them if the group disbands. My picture is in 4 of the defunct bands.
I'll repeat the funniest one;
Instead of taking a new band picture for the website, they simply photoshopped the new bass players head onto my body. Amateur, obvious and funny.
Another idea is I could commit a crime so heinous the bad press would force the band to instantly remove all pictures of me. ;-)
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