Using promo material with fired band member image

[drpepper]

Obviously, the best course is the one that costs you the least whether in terms of time, effort, grief or money, and I think I'd stop using specific promo materials, but if she is saying take down all pictures and video including her, I'd question whether the right applies to all postings of unedited performance videos and pictures, without limitation...

In my lay-reading, financial gain from the image use and exploitative purpose are required. It would seem that images that are specifically used as promotional material or that are monetized can be tied to some kind of financial gain, at least prospective. But social media and website photos and videos that are parts of "galleries" are documentary/historical expressions of past events and arguably don't involve any financial gain or exploitative purpose. Sure, someone could argue that all posting activities on band websites or social media are promotional in nature, but they can also be viewed as being akin to blogs or "group news" which have been found to be exceptions.

If she is saying to take down all pictures and video, I'd also question the what circumstances are required to allow recision of consent? In the case of written consent, it likely can only be rescinded prior to publication of the images. I would think that in the absence of written consent, someone being being fully aware that pictures and video were posted on social media for some period of time without having objected could be taken as consent.

This whole thing makes me think that it might be a good idea for some bands to have signed releases be SOP just so these decisions are fully in the hands of the band when members leave.

 

[crazyBassClown]

temporary head

Good band name!!!

 

[superheavyfunk]

I don't think she has any legal standing. That said, is she going to file suit? I would keep some stuff up with her image/likeness/performance until you get new material. Just tell her you'll take it down as quickly as possible while still maintaining your company image.

This is the professional path.

 

[bassbrad]

@hensonbass would you have any objections if the vocalist were also using the same videos to promote her new act?
Shoes on different feet and all that stink, goosey gander stuff.

 

[IanStephenson]

I'd distinguish between material you're actively distributing to promote the band, and material that is incidentally online/social media.

I'd remove her from main pages of your website, and get some new videos/recordings to put front and centre asap. You're "publishing" these every time someone visits your page, so they should be updated for both your sake and hers.

However for other "social media" sites, they're posted, and gone. The videos/pics on FB/Twitter/YouTube that were posted while she was in the band are a historical record of what the band sounded/looked like on the date they were recorded and uploaded. They're all datestamped, and she was happy for them to be shared at the time.

 

[nendo]

Personally, I’d stop using any promotional material that contains the lead singer until
you have found a replacement and put something new together. Not from a legal perspective, but because you are using footage and promo material that is not a reflection of the current capability of the band.

I would leave all videos up that contain the previous band member, but not use them to actively promote the band.

 

[dbsfgyd1]

I lead and manage an acoustic trio that works steadily in the private / corporate event industry. I recently had to fire my lead vocalist.

She is now demanding that her image be taken off of all promo videos used on social media and websites. It should be noted that all the videos are only of live performances where she was paid in full. All the music is cover music, non-original.

Does she have a legal leg to stand on here?

Of course in the near future I will have new video footage put up in it's place but until then I question where it stands from a legal standpoint.

You media need updating. You know what they say about "hell having no fury like"... The sooner the better.

 

[SmokinJoe992]

Since she was the lead singer and you used the term "fired", I am in agreement with her on this. If she left amicably, or was more of a background player, I think it would be different situation.

 

[ole Jason]

She's in the right legally and morally IMO. The fact that it is a trio and the lead singer is the de facto face of the group only furthers the validity of her complaints. You should also consider it may impact her business in cases where someone wants to hire her specifically but books your group by mistake because you're using her image.

I know it sucks to take a pause on things but it's the right thing to do.

 

[SoCal80s]

I had a similar situation and actually got a cease and desist letter (though it was from a criminal defense attorney - the old singer was a previous client). I knew it wouldn't go far but just to be safe I removed the images and replaced them temporarily with a previous singer, until we found our new singer.

I'm not a lawyer, but just want to mention that it can vary from state to state. What I found in my state is that the statute specifically says that group photos are exempt, and I found case law supporting my defense that the person had never objected to the photos before and therefore had no past damages, and since I removed the photos there would be no future damages. I sent a letter to the lawyer explaining these points, and that I removed the images as a courtesy. Never heard back.

And even if he had sued and won, what damages could he prove? A local cover band singer's image does not have much intrinsic value. And what could he possibly have lost from being associated with an established cover band? Bottom line, I wouldn't worry about being sued, but I would comply with the request (even if it means you temporarily replace the photos with those with a previous member until you get new ones).

 

[singlemalt]

I’ll bet she has no problem using your videos to land her next gig.

Maybe add a graphic warning label to the clips: “Singer has mental issues, and may present a hazard to audience and or band members”

Or maybe just move on.

 

[smurfco]

Not related, but my band still uses promo photos with their former bass player who died 2 years ago. I think I need to talk to them......

He doesn't mind

 

[elgranluis]

once she finds out that she has to pay an attorney for a consultation , and then for the cease and desist letter, she will be the one desisting.

Maybe you can add a clear note on social media saying that x bandmember is not part of the band anymore , and that you are working on putting the new material up.

 

[Siggy]

When I replaced a bassist in a band they just photo shopped my head over his. As far as recorded cover songs, try to keep it amiable or ignore her but in reality she can get a lawyer.

 

[BrotherMister]

This is an issue if consent. In this part of the world there are legal grounds for using someone’s image without their permission. Somehow has no longer given you consent and that shouldn’t be ignored. The argument ‘it’s okay because they won’t pay for legal action’ is actually pretty worrying to hear. What’s your personal and professional reputation worth to you? Even if it doesn’t go to court someone can ruin all of that by telling the truth in that consent was withdrawn and it’s being ignored. But hey, it’s okay because lawyers don’t get involved, right?….

Others have pointed out she might be using the videos to promote herself but guess what, you can also withdraw consent on using your image. Or if you don’t care, you don’t need to. That’s everyone’s choice.

Make life easy. Take some videos, photos on the next gig as filler while you get the good stuff sorted out. In todays world you genuinely can’t not have new content ready in an instant if you are out gigging.

 

[Rolling Thunder]

Legal or not, it's weird to include her. That should be enough of a reason.

 

[tmvt]

She is just doing this to be a problem and mess with you. Trying to use any power she has left for control. So change everything right away and completely scrub her from everything. It will be funny how much that pisses her off and likely send her in a rage that she will now just have to sit with as she will no longer have any strings left to pull. At the same time it will send her the message, we went through all this trouble changing all the media so quick that your gone for good, so bye.

 

[SJan3]

I lead and manage an acoustic trio that works steadily in the private / corporate event industry. I recently had to fire my lead vocalist.

She is now demanding that her image be taken off of all promo videos used on social media and websites. It should be noted that all the videos are only of live performances where she was paid in full. All the music is cover music, non-original.

Does she have a legal leg to stand on here?

Of course in the near future I will have new video footage put up in it's place but until then I question where it stands from a legal standpoint.

I think she has a case. You can't use her image to promote your product as she is no longer part of that product. It would be disingenuous to your perspective clients and she objecting to the use of her image or likeness without further compensation is valid, IMHO.
P.S. She may not wish to be associated with your act any longer. Since you released her, she should have that right. You can't dismiss her and still use her on any level.

 

[DigitalMan]

You can't use someone's name, image, or performance without consent. She is well within her rights to demand that you stop including her past performances in current and future promotional videos.

If you have links to videos of full performances (whole songs or shows), that's a different matter altogether, and would be subject to whatever agreement was in place at the time of the recording. The real question is did you create new art for promotional purposes, or do you simply have a catalog online of past performances to which you have contractually retained the rights to continue to make available.

 

[armybass]

You fired her. Stop using her picture…. I mean since you asked. Put yourself in her position.