Thalasar Ventures

Copyright Infringement Or how not to use a photo of a person on a blog.

Kevin over at Lexblog has a post on the right to use a photograph of a person on a blog. (Hat tip to Darren Rowe). Quite frankly the post is quite lacking because it misses the most important part of the issue – copyright infringement.

Most bloggers want to use photographs on their blog that they haven’t taken. It’s fairly common in entertainment blogs to use an AP photograph and comment on the photography. The problem is of course is that is pure copyright infringement, with civil penalities of up to $150,000 per INCIDENT. Most bloggers coming to that post are wondering, “Can I use a photograph I find on the web?” The answer is almost certainly not unless you have an explicit license to do so.
Just so you know, Kevin is sourcing from an Techdirt article which in turn is sourcing from an Eweek article on the issue. None of these articles state the provence of the photograph – was it her personal property? No mention of that anywhere in the piece and it seems highly relevant. Most commentators on every one of the blogs seem to treat the woman akin to a gold digger and that she looking for a “payday”. Please note that Kevin doesn’t seem to think she should be compensated. Well if she never signed a commercial model release, she’s entitled to compensation. Clearly Yahoo thought the photograph and the woman’s appearance good enough to use in a national campaign, clearly it has a non zero value. If the woman didn’t sign a commercial release form, then she has a right to be compensated – end of story. While that compensation shouldn’t be 20 million IMO, she still should be compensated for the use of her image. If her image has no value, why did Yahoo chose to use it? Clearly it has value.
A number of comments seem to indicate that she should be suing the photographer. While that certainly is a possibility, she’s can certainly sue Yahoo which is profiting from her image.
As a general rule when taking photographs you understand what you can and cannot do. I recommend downloading and printing Bert Krages, rights of photographers. My wife and I are both avid photographers and it’s good to know your rights. Keep in mind this piece covers it from the perspectative of a photographer. Here’s a basic overview of the use of photographs in electronic media. It has a great example of photos that require a commercial model release

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